Green v. State

• Decision Date: 18 May 2009
• Docket Number: No. A09A0535.,A09A0535.
• Citation: 298 Ga. App. 17,679 S.E.2d 348
• Parties: GREEN v. The STATE.
• Court: Georgia Court of Appeals

679 S.E.2d 348

298 Ga. App. 17

GREEN v. The STATE.

No. A09A0535.

Court of Appeals of Georgia.

May 18, 2009.

Tony L. Axam, Atlanta, for appellant.

Lee Darragh, Dist. Atty., John G. Wilbanks, Jr., Asst. Dist. Atty., for appellee.

BERNES, Judge.

Following a drug sting operation, Kevin Joseph Green and three co-defendants were arrested and indicted for several offenses arising out of their attempt to purchase 100 pounds of marijuana from an undercover officer. Green was tried separately, and the jury found him guilty of attempted trafficking in marijuana and possession of a firearm during the commission of a felony. The trial court denied his amended motion for new trial. On appeal, Green contends that there was insufficient evidence to convict him and that the trial court erred by denying his motion for mistrial and his motion for continuance. He also contends that his constitutional right of confrontation was violated when the state was permitted to continue asking leading questions to an unresponsive co-defendant and to have a police officer read into evidence certain prior statements made by the co-defendant. Finally, Green contends that he was entitled to a new trial based upon what he alleges was a state witness's impermissible comment on his pre- and post-arrest silence, the improper admission of his prior arrest record, and an erroneous charge to the jury regarding a defendant's right to subpoena witnesses. For the reasons discussed below, we affirm.

On appeal from a criminal conviction, we no longer presume the defendant is innocent, and we view the evidence in the light most favorable to the jury's verdict. Wallace v. State, 294 Ga.App. 159(1), 669 S.E.2d 400 (2008). Viewed in this manner, the evidence showed that on May 12, 2005, officers employed by the Hall County Sheriff's Department and assigned to the Multi-Agency Narcotics Squad (the "MANS Unit") conducted a drug sting operation in which they arranged for the sale of 100 pounds of marijuana for the price of $65,000. That evening, the officer serving as the case agent for the sting operation had a telephone conversation with co-defendant Clarence Heard in which the agent posed as a drug seller. Heard agreed to purchase the marijuana worth $65,000, but told the case agent that he would need time to secure the money. They agreed to meet in the parking lot of a shopping center located in Hall County after the money was secured.

Later that night, Heard called the case agent and stated that he was ready to meet at the parking lot and purchase the marijuana. The case agent and other members of the MANS Unit set up surveillance of the parking lot in preparation for the sale. The marijuana was wrapped in 20-pound bundles and placed into a truck to be driven by a different undercover officer who would be posing as the drug seller for the purchase transaction.

While conducting surveillance of the parking lot, the case agent observed a Chevrolet Avalanche, followed closely by an Acura Legend, pull into the parking lot. The Avalanche contained co-defendants Russell Robinson and Heard. The Legend was driven by co-defendant Kali McDowell, and defendant Green rode in the front passenger seat.

The Avalanche parked near the center of the parking lot, and the Legend parked approximately ten feet away, directly facing the Avalanche. The undercover officer drove the truck containing the marijuana into the parking lot and parked directly in front of the Avalanche. The officer exited the truck and walked over to Heard, who had exited the Avalanche and was standing by the driver's side door of the Legend. The officer asked whether they were "ready to do the deal" and requested to see the purchase money. McDowell, the driver of the Legend, handed a black bag through the driver side window to Heard. Heard opened the bag, which contained a large amount of currency and a loaded semi-automatic pistol. After the officer had viewed the contents of the bag, Heard passed the bag back through the car window to McDowell. The officer and Heard then walked to the back of the officer's truck, and the officer showed Heard the bundles of marijuana. Once Heard inspected and approved of the marijuana, the officer gave the "takedown signal," resulting in several officers with the MANS Unit moving onto the scene and detaining the four defendants.

As part of the takedown, the case agent approached the front passenger side of the Legend and detained Green, who remained in the vehicle. After removing Green from the seat, the case agent retrieved a loaded .40 caliber handgun that was in plain view on the passenger side floorboard where Green's legs had been located. The black bag containing the currency and semi-automatic pistol was seized from the center of the back seat of the Legend, which the case agent described as being "in arms' reach of both the driver [McDowell] and [the] front passenger [Green]." After seizing the black bag, the case agent determined that it contained $59,800 in currency. Additionally, a half-concealed handgun was recovered from the driver's side floorboard of the Legend.

As to the Avalanche, a nine millimeter pistol was recovered beside the front center console. The case agent also seized a box containing a set of electronic scales from the back of the Avalanche. There were "flakes" on the scales that the case agent, based on his training and experience, identified as marijuana.

The four defendants were jointly indicted for attempted trafficking in marijuana and possession of a firearm during the commission of a felony, but they were tried separately.¹ At Green's jury trial, the state relied upon the testimony of the case agent and undercover officer with the MANS Unit. The state also called co-defendant Robinson, who had elected to testify at his own trial the day before.² When asked whether he had testified in his own trial concerning "these acts that involved you and ... Green," Robinson responded, "I don't know." Robinson then denied that he had been represented by counsel "yesterday before a jury on these same charges." In a subsequent series of questions concerning Green's role in the drug transaction, Robinson responded variously with "I don't know that either," "I don't want to answer the question," "No answer," and "I don't wish to testify. Hold me in contempt. I take the contempt." Finally, Robinson denied that he was afraid of Green or that he had ever said that he was afraid of Green.

Following Robinson's direct examination by the state, defense counsel expressly declined to cross-examine him. Over objection, the state then recalled the case agent, who read to the jury certain portions of the certified transcript of Robinson's testimony from his own trial the previous day and a statement Robinson had made to the police. In his trial testimony and police statement, Robinson admitted that he had been present when McDowell, Heard, and Green met on the day of the drug transaction and agreed to pool their money and purchase a large amount of marijuana to be split between them. Robinson further stated that after their meeting, Green had removed the box containing the electronic scales from his own vehicle and had given the box to Heard, who then placed the box in the Avalanche. Finally, the case agent testified that Robinson repeatedly said that he was afraid of Green.

1. Green maintains that the evidence was insufficient to support his conviction for attempted trafficking in marijuana. He does not contest that the individuals who actively participated in the drug transaction were guilty of the charged offense. Rather, Green argues that the competent evidence was insufficient to demonstrate that he was a party to the offense rather than merely present at the scene of the drug purchase transaction.³ We disagree.

On appeal from a criminal conviction, we neither weigh the evidence nor assess witness credibility, but only determine if the evidence was sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the charged offense. Neugent v. State, 294 Ga.App. 284(1), 668 S.E.2d 888 (2008). See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Even if a person does not directly commit the crime, "[a] person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime." (Punctuation and footnote omitted.) Buruca v. State, 278 Ga.App. 650, 652(1), 629 S.E.2d 438 (2006). See OCGA § 16-2-20(b)(3), (4). "Whether a person is a party to a crime may be inferred from that person's presence, companionship, and conduct before, during and after the crime." Marshall v. State, 275 Ga. 740, 742(4), 571 S.E.2d 761 (2002).

Here, the prior statements of co-defendant Robinson, introduced into evidence through the case agent, were evidence that Green was a party to the crime. While Green contends that Robinson's prior statements were inadmissible hearsay, "a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence." Gibbons v. State, 248 Ga. 858, 862, 286 S.E.2d 717 (1982). At Green's trial, Robinson clearly was reluctant to testify against Green and responded "I don't know" when asked multiple questions by the state relating to his prior statements. If a reluctant witness testifies that he does not remember whether or not he made a prior statement, the state is then entitled to introduce the prior statement as inconsistent with the in-court testimony of the witness. Waycaster v. State, 136 Ga. 95, 101, 70 S.E. 883 (1911); Lexington Developers v. O'Neal Constr. Co., 145 Ga.App. 309, 313(2), 243 S.E.2d 577 (1978). See also Cummings v. State, 280 Ga. 831, 832(2), 632 S.E.2d 152 (2006); LeBlanc v. State, 283 Ga.App. 434, 437(3), 641 S.E.2d 646 (2007); Spann v. State, 248 Ga.App....