Epps v. State

• Decision Date: 21 September 1983
• Docket Number: No. 66836,66836
• Parties: EPPS v. The STATE.
• Court: Georgia Court of Appeals

Page 234

308 S.E.2d 234

168 Ga.App. 79

EPPS v. The STATE.

No. 66836.

Court of Appeals of Georgia.

Sept. 21, 1983.

William C. Head, Athens, for appellant.

Barry Irwin, Asst. Dist. Atty., Lindsay A. Tise, Jr., Dist. Atty., for appellee.

QUILLIAN, Presiding Judge.

The defendant, Thomas Epps, appeals his conviction of the misdemeanor offense of selling beer on Sunday. GBI agent Harold Cook, and a GBI intern, John Goodson, went to Oglethorpe County on Sunday, August 16, 1981, to make purchases of beer. They stopped at the Patriot Food Store where Epps was working. They testified that he was behind the counter when they arrived. They went inside to the beer cooler and discussed what type of beer to purchase. They saw him go outside to the rear of their car and look at the bumper area. They had a Hall County tag and a North Georgia College parking decal on the rear bumper. They placed the two six packs of beer on the counter and when he returned he told them he was "just checking" that "you have to watch out for undercover policemen." He asked them if they were "undercover police." They said they were not, they were on their way to go fishing at Clark Hill Lake. They remained only a couple of minutes and left.

Epps testified there was a sign on the beer cooler: "No Beer on Sunday." When Cook and Goodson arrived, he was picking up trash around the door and was bringing it in to the trash can. When they put the beer on the counter, he told them he did not sell beer on Sunday. Rather than putting it back in the cooler--they remained at the counter and talked for 10 to 15 minutes. They said they were going fishing. It was the middle of August and it must have been 100 degrees and they acted like they were going to die if they didn't get some beer to go fishing. He advised them of two other places which might sell them beer. "They were very subtle--subtly encouraging and persuading me to sell them the beer. Saying things like ... 'Aw, come on, you can do it just this one time ...' " "The only thing I had against me was my weakness to the pressure--the peer pressure that was there."

The trial court instructed on the defense of entrapment, but the jury returned a finding of guilty. The defendant appeals. Held:

1. Counsel complains that the transcript contains errors and omissions, and of significant import is a portion which shows a "discussion at bench" occurred, when in fact counsel states he placed an objection to the court's charge on entrapment. When a party to a trial states "the transcript or record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the trial court shall set the matter down for a hearing with notice to both parties, and resolve the difference so as to make the record conform to the truth." Code Ann. § 6-805(f) (now OCGA § 5-6-41(f)). Defendant's remedy is in the trial court, not the appellate court. Patterson v. State, 233 Ga. 724, 731, 213 S.E.2d 612; High v. Zant, 250 Ga. 693(11), 300 S.E.2d 654. However, the defendant did not waive his right to object to the charge on entrapment and all that he need have done is enumerate it as error. He has assigned three enumerations of error on the entrapment charge and we will necessarily face that issue in addressing the enumerated errors.

2. Objection is made to the charge of the court that it is not entrapment "where the officers merely furnish an opportunity to a criminal who is ready and willing to commit an offense." (Emphasis supplied.) The instruction is taken from the pattern instruction of the Superior Court Criminal Jury Instructions. Although we find no reversible error, we admit that the selection of the word "criminal" is inappropriate when referring to a defense of a defendant. The word does import, or connote, criminal acts, or perhaps a predisposition to commit criminal acts. But, this instruction was in the abstract in explaining the meaning of a defense asserted in this trial and did not refer to the defendant personally. A more appropriate term--with less adverse implication toward a defendant should be used--i.e. "a person," "an individual," or even "a suspect." However, the charge is not incorrect as a matter of law and no reversible error appears.

3. The trial court did not err in giving the "Allen charge" to the jury after they had deliberated approximately two hours. The decision of whether or not, or when, to give the "Allen charge" is within the sound discretion of the trial judge. Mize v. State, 140 Ga.App. 17(5), 230 S.E.2d 81; Thornton v. State, 145 Ga.App. 793, 794, 245 S.E.2d 22. The length of time the jury must deliberate before the giving of the "Allen charge" is within the discretion of the trial court and will not be controlled unless there is a manifest abuse of discretion. Roberts v. State, 141 Ga.App. 550(4), 234 S.E.2d 138. We have found no abuse of discretion.

4. Error is alleged in the argument of the district attorney in stating that the defendant had offered "no defense" when in fact the defense of entrapment was in issue. Our review of the transcript shows that no objection was made to this argument. When improper argument is made to the jury, it is necessary, in order to make the alleged error the basis for appeal, that opposing counsel, during the trial, properly object to the argument, invoke the ruling or instruction of the court, and if dissatisfied with the action taken to renew the objection and move for mistrial. Joyner v. State, 208 Ga. 435(2), 67 S.E.2d 221; Cochran v. State, 213 Ga. 706(2), 100 S.E.2d 919; Moore v. State, 222 Ga. 748, 755, 152 S.E.2d 570; Johnson v. State, 226 Ga. 511(5), 175 S.E.2d 840. The defendant has not reserved the right to present this issue on appeal.

5. The defendant argues that the court erred "in permitting witness Cook to testify to impermissible hearsay...