Mindock v. State

• Decision Date: 13 June 1988
• Docket Number: No. 76169,76169
• Citation: 370 S.E.2d 670,187 Ga.App. 508
• Parties: MINDOCK v. The STATE.
• Court: Georgia Court of Appeals

Page 670

370 S.E.2d 670

187 Ga.App. 508

MINDOCK v. The STATE.

No. 76169.

Court of Appeals of Georgia.

June 13, 1988.

John R. Emmett, Trenton, for appellant.

David L. Lomenick, Jr., Dist. Atty., James D. Franklin, Asst. Dist. Atty., for appellee.

DEEN, Presiding Judge.

Appellant Mindock was one of several defendants arrested in November 1986 at the culmination of a six-month-long undercover operation conducted jointly by the Federal Bureau of Investigation (FBI) and the Georgia Bureau of Investigation (GBI) with regard to a Dade County drug distribution conspiracy. A jury found Mindock guilty as charged of the offenses of trafficking in cocaine and possession of a controlled substance, hydromorphone. He appeals, enumerating as error (1) the trial court's overruling of an objection, on grounds of relevance, to the State's eliciting from its own witness testimony regarding the guilty pleas of certain others arrested in the "drug bust," and refusal to instruct the jury to disregard the testimony; (2) the sufficiency of the evidence on the trafficking charge; and (3) the trial court's granting the State's motion to curtail the closing argument of defense counsel. Held:

1. A careful reading of the relevant colloquy between prosecution, defense, and the court indicates that, in context, the prosecution's objection was appropriate and should not have been construed as an improper motion to curtail defense counsel's argument. The trial transcript filed with this court, moreover, does not include a transcript of the closing arguments. Absent a transcript, this court can only presume that this portion of the trial was conducted in a regular and proper manner. Miller v. Grier, 175 Ga.App. 91, 332 S.E.2d 323 (1985). When an appellant seeks to prove error in the trial proceedings, the burden is on him to produce a transcript of the allegedly erroneous matter. Hunnicutt v. Hunnicutt, 182 Ga.App. 578, 356 S.E.2d 679 (1987). We find no reversible error here.

2. At trial Appellant objected to testimony of a State witness regarding guilty pleas by joint offenders, as well as to testimony that two of the other joint offenders were fugitives. Specifically, the testimony and the objection thereto was as follows: "Q. Of course, Mr. John Boatwright entered a plea of guilty in the Federal Court, is that correct? A. Yes, Sir, that is my information. All of the individuals in this particular investigation with the exception of the two defendants today, and two of the suspects, Mr. Frank Miller and Mr. Ronald Teems, which are fugitives, and have never been arrested or arraigned, have plead guilty in this case. MR. EMMETT: [DC] Your Honor, I would object to that and ask that that be striken (sic), that has got nothing to do with this case. THE COURT: Objection sustained. MR. FRANKLIN: [DA] All right. MR. EMMETT: Likewise request that the jury be instructed to disregard that statement in its entirety. THE COURT: What says counsel for the State? MR. FRANKLIN: Your Honor, we believe that is part of the conspiracy, and result of it. MR. EMMETT: Conviction of someone else has nothing at all to do with conspiracy. THE COURT: Is that your objection? MR. EMMETT: Yes, sir, it's completely irrelevant to the trial of Mr. Mindock. THE COURT: That objection based upon that ground is overruled."

The ruling of the court was error requiring reversal. OCGA § 24-3-52 provides: "The confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself." (Emphasis supplied.) On the basis of this statute and its predecessor statutes, this court has consistently held that a guilty plea of a joint offender is not admissible in evidence at the trial of another joint offender. Gray v. State, 13 Ga.App. 374, 375, 79 S.E. 223 (1913); Hayes v. State, 136 Ga.App. 746(1), 222 S.E.2d 193 (1975); Neal v. State, 160 Ga.App. 834, 837(3), 288 S.E.2d 241 (1982); Foster v. State, 178 Ga.App. 478, 479(1), 343 S.E.2d 745 (1986). As pointed out in Foster, the cases which apply this rule of inadmissibility rely upon § 24-3-52, supra, and upon the consequent irrelevancy or incompetency of that guilty plea as proof of the guilt of the defendant on trial, and hold that the plea cannot be used as substantive evidence against him. Although this rule does not apply where the joint offender is present and testifies as a witness subject to cross-examination, Brown v. State, 132 Ga.App. 200(2), 207 S.E.2d 682 (1974), that exception is inapplicable here.

Under the rule set forth above, the testimony complained of by appellant is not relevant and admissible to establish the existence of a conspiracy. This is particularly true where, as here, appellant was not charged with conspiracy. See Neal, supra. As a general rule, an objection on the ground that testimony or evidence is irrelevant and immaterial, without more,...