Inglett v. State

• Decision Date: 28 July 1999
• Docket Number: No. A99A0910, No. A99A0911.
• Citation: 239 Ga. App. 524,521 S.E.2d 241
• Parties: INGLETT et al. v. The STATE (Two Cases).
• Court: Georgia Court of Appeals

521 S.E.2d 241

239 Ga. App. 524

INGLETT et al. v. The STATE (Two Cases).

Nos. A99A0910, A99A0911.

Court of Appeals of Georgia.

July 28, 1999.

Reconsideration Denied August 6, 1999.

Certiorari Denied January 14, 2000.

John D. Rasnick, Waycross, for appellants.

Peter J. Skandalakis, District Attorney, Lynda S. Engel, Assistant District Attorney, for appellee. PHIPPS, Judge.

Roger Inglett, William Gill, and Gail Inglett were tried jointly, convicted of various drug offenses, and given respective sentences of ten, fifteen, and twenty years. In addition, Roger and Gail Inglett were each given a $200,000 fine. In Case No. A99A0910, defendants appeal their convictions. In Case No. A99A0911, they appeal the denial of their appeal bond.

Lieutenant Grizzard of the Troup County Sheriff's Department was informed that a package, containing 169.2 grams of methamphetamine and having a street value of approximately $56,000, had been intercepted at Hartsfield Atlanta Airport. The package was being shipped by United Parcel Service to a residential address in LaGrange, Georgia, and was addressed (euphemistically) to "Mr. Head." Lieutenant Grizzard arranged for a controlled delivery of the package.

Gail Inglett appeared at the door of the house and signed for the package with the remark, "We've about give up on you all." She was placed under arrest as she was reentering the residence. A team of officers being led by Investigator White then conducted a "protective sweep," i.e., limited search, of the house primarily to ensure officer safety by detecting the presence of other occupants. Officers Grizzard and White testified that as Gail Inglett was opening the door, they observed another individual inside the house. After White entered the house, officers found Gail Inglett's son Roger Inglett and a Ms. Kelly in the living room and handcuffed them.

Grizzard testified that he and Officer Hamrick informed Gail Inglett of her Miranda rights and asked for her consent to search the house. She agreed to speak to the officers and later told them that Darryl Weathers had provided her with methamphetamine if she would take delivery of the package. Although she verbally consented to a search of the house, she would not sign a consent form.

As a result, Grizzard left the house to secure a search warrant. To prevent possible destruction of evidence before the warrant was obtained, the officers seized a marijuana cigarette butt and suspected methamphetamine found in plain view in the living room. After issuance of the warrant, the officers seized evidence both in and out of plain view throughout the house. This evidence consisted of marijuana, methamphetamine, articles used to ingest these substances, and items associated with the distribution of methamphetamine ( i.e., cutting agents, strainers, small plastic baggies, and scales).

1. Defendants first contend that the court erred in denying their motion to suppress evidence.

Their argument is that the protective sweep of the house constituted an illegal warrantless search and that all evidence subsequently found is "fruit of the poisonous tree." This argument is without merit.

On the basis of Gail Inglett's comments and the officers' observation of at least one other individual in the residence, it appeared that there was more than one person on the premises engaged in narcotics trafficking. On the basis of his experience, Grizzard testified that where there is a large amount of narcotics "there's bound to be guns," and numerous guns in fact were found in Roger Inglett's bedroom.

Police officers are authorized to make a protective sweep in conjunction with an in-home arrest when they possess "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). It would thus appear that the officers in this case had the grounds needed to justify a protective sweep. And even if they did not, exigent circumstances did permit a cursory search of the house in order to prevent the escape of unknown individuals. See United States v. Rubin, 474 F.2d 262, 268-269(3,4) (3rd Cir.1973).

2. Defendants contend that the court erred in ruling at the Jackson-Denno hearing that oral statements by Gail Inglett to Officers Grizzard and Hamrick were admissible in evidence.

Defendants base this contention on testimony by Inglett denying that she was informed of her Miranda rights prior to making these statements. But Grizzard testified otherwise. This presented a conflict in the evidence which the trial court was authorized to resolve in the State's favor. See Mack v. State, 209 Ga.App. 104, 106(1), 432 S.E.2d 680 (1993). The evidence supports the court's determination that Inglett made the statements at issue freely and voluntarily after a knowing and intelligent waiver of her Miranda rights.

3. Defendants next complain of the trial court's admission of crime lab evidence which tested negative for contraband.

Defendants have not, however, preserved this enumeration for appellate review. Although they have cited to parts of the record in which the trial court overruled their objection to the apparent admission of this evidence, they have failed to cite to that part of the record wherein the evidence itself was introduced. See Court of Appeals Rule 27(c)(3).

4. Defendants charge the trial court with error in overruling their hearsay objection to Grizzard's testimony concerning Jody Evans. Other grounds for objection which were not raised below have been waived. Hawkins v. State, 230 Ga.App. 627, 629(2), 497 S.E.2d 386 (1998).

The State's evidence showed that as the officers were executing the search warrant in this case, the telephone rang. Grizzard testified on direct examination that Jody Evans was identified as the caller through the phone's caller identification feature. When Grizzard then began to explain how he knew Evans by alluding to his criminal record, defense counsel objected as follows: "We're getting far afield here as to something else. We're almost getting into irrelevant hearsay as to what we're talking about. We don't know for a fact other than the phone caller ID that in fact it was him calling." After an unreported bench conference, the court effectively overruled defendants' objection while agreeing to make it a continuing one. Grizzard proceeded to testify that Evans had recently pled guilty to possession of amphetamine with intent to distribute.

There is no merit in defendants' argument that Grizzard's testimony concerning the identification of Evans as the telephone caller constituted inadmissible hearsay. These computer-generated data automatically appearing on the screen of the telephone do "not constitute out-of-court statements by any person or `the conclusion of a third party not before the court.'" Caldwell v. State, 230 Ga.App. 46, 47, 495 S.E.2d 308 (1997).

On the other hand, Grizzard's oral testimony concerning Evans' prior criminal conviction was subject to a hearsay objection. See Lipscomb v. State, 194 Ga.App. 657, 658(2), 391 S.E.2d 773 (1990). But after this testimony was admitted, defendants elicited testimony during their cross-examination of Grizzard showing that Evans had been involved with Weathers in drug dealing and that Weathers had been convicted in federal court based on charges that he had engaged in drug trafficking schemes similar to the one in this case. Gail Inglett also testified on direct examination that Weathers had been involved in the distribution of methamphetamine. The foregoing testimony renders it highly probable that the error in admitting Grizzard's testimony concerning Evans' conviction did not contribute to the verdict. See generally Johnson v. State, 238 Ga. 59, 230 S.E.2d 869 (1976).

5. Defendants contend that the court erred in not granting their motion for a mistrial when the State sought to admit a photograph taken of Roger Inglett at the time of his arrest.

In the presence of the jury, the State tendered the photograph in evidence through the testimony of Grizzard in order to show a change in Inglett's appearance. When the defense raised an objection, the prosecuting attorney withdrew the tender, and the court instructed the jury to disregard any comments concerning the photograph. We cannot say that the prosecuting attorney's comments were so harmful that the court abused its discretion in determining that remedial instructions were sufficient to cure any prejudice to the defense and that a mistrial was not warranted. See, e.g., Crawford v. State, 256 Ga. 585, 587(2), 351 S.E.2d 199 (1987).

6. Defendants challenge the sufficiency of the evidence to support the verdicts against them. On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict; an appellate court determines evidence sufficiency and does not weigh the evidence; and the verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Kovacs v. State, 227 Ga.App. 870(1), 490 S.E.2d 539 (1997); see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." OCGA § 24-4-6.

Gail Inglett accepted delivery of the package of methamphetamine and admitted that she had been provided with methamphetamine in exchange for doing so. Her boyfriend William Gill arrived at the residence while the search warrant was being executed. They both resided in the master bedroom, where rolling papers and...