Ellis v. State

• Decision Date: 18 October 1982
• Docket Number: Nos. 63923,63924,63999,s. 63923
• Citation: 164 Ga.App. 366,296 S.E.2d 726
• Parties: ELLIS v. The STATE. HOSKENS v. The STATE. RICKMAN v. The STATE.
• Court: Georgia Court of Appeals

Page 726

296 S.E.2d 726

164 Ga.App. 366

ELLIS v. The STATE.

HOSKENS v. The STATE.

RICKMAN v. The STATE.

Nos. 63923, 63924, 63999.

Court of Appeals of Georgia.

Oct. 18, 1982.

Robert L. Barr, Jr., Marietta, for appellant in No. 63923.

Thomas Charron, Dist. Atty., James T. Martin, Asst. Dist. Atty., Marietta, for appellee.

Reid W. Kennedy, Sylvia K. Morrow, Marietta, for appellant in No. 63924.

Edwin Marger, Robert O. Davies, Atlanta, for appellant in No. 63999.

SHULMAN, Presiding Judge.

Appellants were tried together and convicted of possession of cocaine. Each now appeals from the judgment entered on the jury's verdict.

The following facts could be adduced from the evidence presented at trial. Using an informant as an intermediary, an undercover police officer made arrangements to purchase a kilogram (2.2 lb.) of cocaine from appellant Hoskens. After meeting Hoskens at a Delk Road motel, the undercover officer and Hoskens proceeded to the Best Western Motel on Interstate 20 to rendezvous with people arriving from Alabama for the deal. The officer and Hoskens' female companion rented adjoining rooms at the motel (Rooms 105 and 107). Surveillance teams stationed near the Best Western observed appellants Rickman and Ellis arrive in a car with Alabama tags and park next to Hoskens' automobile. The latest arriving appellants went into the motel, returned to the car, retrieved from it a brown briefcase, and reentered the motel.

Meanwhile, the undercover officer, having seen one pound of the cocaine, having been told the remainder of the kilogram was "next door," and having been satisfied with the cocaine sample provided to him by Hoskens, left Room 107 of the motel and went to his parked automobile to obtain the money for the drug purchase. This conduct was the prearranged signal for the surveillance teams to assemble for the imminent arrests. The police officers gained access to Room 107 through the use of the undercover officer's room key, arrested Hoskens and confiscated a pound of cocaine. Upon knocking and announcing their identity as police officers at Room 105, they were met with the sounds of running water and a repeatedly flushed toilet. Using the manager's pass key, the officers entered that room to find Ellis standing by the door and Rickman in the bathroom with an empty plastic bag. Scrapings from the toilet bowl and the residue from the plastic bag were identified as cocaine. A search of Room 105 uncovered a glass vial containing what was later identified as cocaine from between the bed's mattress and box springs, and a plastic bag containing a white powdery substance later identified as cocaine from a shaving bag.

1. Appellant Hoskens, who pled a defense of entrapment at trial, now asserts that the verdict is contrary to the law. "Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer." Code Ann. § 26-905. Hoskens maintains that the state failed to prove he was predisposed to commit the crime. However, Hoskens himself testified that a police informant's alleged offer of $1,500 caused him to become involved in the purported sale of cocaine. "[T]he mere fact that the defendant was persuaded (if he was) by a friend to engage in practices he knew to be criminal simply to 'make a lot of money' does not constitute entrapment; if it did, practically every offender could find and rely on such incidents in his own past." Leonardi v. State, 154 Ga.App. 402, 405, 268 S.E.2d 380. Hoskens' assertion of the general grounds is without merit.

2. Appellants Rickman and Ellis appeal from the denial of their motion to suppress evidence discovered pursuant to warrantless searches of Rooms 105 and 107 following their warrantless arrests.

An officer may make a warrantless arrest "if the offense is committed in his presence, or the offender is endeavoring to escape ... or for other cause there is likely to be failure of justice for want of an officer to issue a warrant." Code Ann. § 27-207(a). A warrantless arrest is not violative of this statute if the officer had probable cause to make an arrest, i.e., if he knew facts and circumstances, based on reasonably trustworthy information, sufficient to warrant a prudent man to believe that the defendant had committed an offense. Watson v. State, 153 Ga.App. 545(1), 265 S.E.2d 871. The knowledge that a pound of cocaine was in the room "next door" to Room 107; the failure of anyone to respond to police requests to enter Room 105; the continuous sounds of running water and a flushing toilet; and Rickman's fully-clothed presence in a running bathtub with an empty plastic bag was ample cause to arrest appellants. It was not error to refuse to suppress the plastic bag and its residue (later identified as cocaine) found with Rickman or the samples of white powder an officer viewed on the rim of the toilet bowl. Both were discovered in the plain view of officers who had a legal right to be where they were at the time they saw the evidence. Brewer v. State, 129 Ga.App. 118, 119, 199 S.E.2d 109.

3. Appellants Rickman and Ellis also protest the admission into evidence of a glass vial containing cocaine. The vial was discovered between the mattress and box springs of one of the beds in Room 105 by police officers conducting a search of the room subsequent to appellants' arrests. Whether or not this evidence was illegally seized is immaterial in light of the fact that the amount of legally seized contraband sufficiently supports the jury's verdict. See generally Lentile v. State, 136 Ga.App. 611(1), 222 S.E.2d 86 where this court affirmed a conviction for possession of marijuana after suppressing some of the evidence pertaining to that charge.

4. The remaining contraband introduced at trial was discovered in Room 107 or in a blue shaving bag found in Room 105. At trial, Hoskens identified the bag as his. Since neither appellant Rickman nor appellant Ellis established that he had "a legitimate expectation of privacy" in Room 107 (rented by the undercover officer) or in Hoskens' blue shaving bag which he had left in Room 105, neither showed that his Fourth Amendment rights were violated with regard to the items seized from Room 107 and the shaving bag. Having failed to establish a violation of their Fourth Amendment rights, appellants do not have standing to challenge the constitutionality of these searches. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619.

5. Rickman and Ellis argue that warrants could have been procured by the police prior to the arrests and search. This contention is without merit. In Lentile v. State, supra, p. 613, "the rendezvous point was not agreed upon until approximately an hour and a half beforehand, and it does not appear that the agents knew in advance that the defendant planned to proceed from the rendezvous point to his residence." That situation is analogous to the present one in that the police officers did not know beforehand that the deal would be moved to a different motel. It was not until Hoskens and the undercover officer met at the location originally agreed upon that it was decided that the sale would take place at another site. The drug purchase occurred approximately an hour and a half after the undercover officer's arrival at the second motel. As in Lentile, the time span was not so long as to require the procurement of a warrant.

6. Each appellant enumerates the denial of his motion for severance as error. Such a motion is committed to the sound discretion of the trial judge, whose ruling is subject to reversal only for an abuse of discretion. Montgomery v. State, 156 Ga.App. 448, 452, 275 S.E.2d 72. "Some of the considerations for the court in exercising its discretion have emerged from the cases considering motions to sever: 1. Will the number of defendants create confusion of the evidence and law applicable to each individual defendant? 2. Is there a danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court? 3. Are the defenses of the defendants antagonistic to each other or to each other's rights? [Cit.] If the defendant can show the court by some facts that failure to sever will prejudice him under one or more of these considerations, his motion should probably be granted." Cain v. State, 235 Ga. 128, 129, 218 S.E.2d 856. Furthermore, "the trial court's denial of the motion to sever will not be disturbed unless the defendant can make a clear showing of prejudice. [Cits.]" Depree v. State, 246 Ga. 240, 241, 271 S.E.2d 155.

Each appellant maintains that Hoskens' assertion of the defense of entrapment was antagonistic to the pleas of not guilty propounded by Ellis and Rickman. "The mere fact that co-defendants' defenses are antagonistic is not sufficient in itself to warrant separate trials. [Cit.] A showing of harm is necessary. [Cit.]" Cain v. State, supra, 235 Ga. p. 129, 218 S.E.2d 856. Each appellant complains that he was harmed by the evidence admitted against his co-defendants. We disagree.

Because Hoskens' entrapment defense required him to admit the commission of the offense with which he was charged, we are unable to find that Hoskens was prejudiced by the evidence adduced against his co-defendants. McDonald v. State, 156 Ga.App. 143(5), 273 S.E.2d 881. Insofar as Rickman and Ellis are concerned, the evidence, as previously summarized, was sufficient for a rational trier of fact to determine beyond a reasonable doubt that Rickman and Ellis were parties to the crime. See Code Ann. § 26-801. "While Code Ann. § 26-801 does not use the word 'conspiracy' it is plain that it embodies the theory of conspiracy" (Hamby v. State, 158...