Norley v. State
| Decision Date | 29 February 1984 |
| Docket Number | No. 67446,67446 |
| Citation | 170 Ga.App. 249,316 S.E.2d 808 |
| Parties | NORLEY v. The STATE. |
| Court | Georgia Court of Appeals |
T. Michael Martin, Jonesboro, for appellant.
Robert E. Keller, Dist. Atty., Mary Jane Stewart, Michael D. Anderson, Asst. Dist. Attys., for appellee.
The appellant, Joseph Christopher Norley, Jr., was convicted for the possession of cocaine with the intent to distribute, in violation of the Georgia Controlled Substances Act. He was sentenced to four years imprisonment to be followed by six years probation, and this appeal followed.
In July 1980, Gert Karnitschnig approached GBI agent Tom Davis, offering his services as an informant for undercover narcotics investigations, and in September 1980, Karnitschnig first mentioned the appellant, who lived in Florida, as a possible drug dealer. With agent Davis's approval, Karnitschnig began negotiations with the appellant over the telephone, concerning the arranging of a sale of cocaine. Karnitschnig usually telephoned the appellant from agent Davis's office, and he agreed to tape record the conversations. Several telephone conversations between Karnitschnig and the appellant, and between agent Davis and the appellant, were in turn recorded on October 20, 1980, and November 11-12, 1980.
Karnitschnig initially attempted to arrange with the appellant a drug deal, involving three kilos of cocaine, at an airport in the Fort Lauderdale area, but none of the suggested arrangements satisfied the appellant. Eventually, the appellant agreed to transport to the Atlanta area a small test sample of the cocaine on December 6, 1980. Agent Davis and Karnitschnig met the appellant at the airport, and they drove to the parking lot of a fast food restaurant in Clayton County. The appellant then produced what he claimed to be a three and one half gram sample of cocaine, after which agent Davis placed him under arrest. Subsequent testing of the substance by the state crime lab was positive for cocaine.
At trial, the appellant acknowledged the taped conversations between himself, Karnitschnig, and agent Davis. He also admitted that he had transported to Georgia a small quantity of what he believed to be cocaine. However, he maintained that Karnitschnig, who had known the appellant for 6-7 years and who was aware of the appellant's financial distress, had convinced him to attempt the drug deal.
On appeal, Norley contends that a directed verdict of acquittal was demanded on the grounds that he had been entrapped; that the trial court erred in recharging the jury twice on the law of entrapment; that the trial court erred in allowing into evidence the taped conversations, because the tape recorder utilized by the state was not in good working order; that the trial court erred in not declaring a mistrial after the jury indicated that it was deadlocked in its deliberations; that the trial court erred in admitting evidence that the substance possessed by the appellant had been cocaine; and that the trial court erred in excluding the certified conviction of Gert Karnitschnig for a misdemeanor offense of escape. Held:
1. OCGA § 16-3-25 provides that See also Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976); Smith v. State, 141 Ga.App. 529, 233 S.E.2d 841 (1977). The primary issue is whether the defendant was predisposed to violate the law; it is not entrapment where a government officer merely provides one predisposed to violate the law with the opportunity to do so. Mafnas v. State, 149 Ga.App. 286, 254 S.E.2d 409 (1979); Johnson v. State, 147 Ga.App. 92, 248 S.E.2d 168 (1978); Orkin v. State, supra.
The question of predisposition is generally one for the jury to decide. Tolbert v. State, 138 Ga.App. 724, 227 S.E.2d 416 (1976). After reviewing the evidence in this case, we conclude that the trial court properly submitted the question of entrapment to the jury. This case is not one involving the undisputed testimony of the accused that he had been entrapped. The evidence includes the testimony of Karnitschnig and agent Davis, as well as the taped conversations between the three parties, and this evidence sufficiently indicated the appellant's predisposition to consummate a drug deal. In short, while the evidence raised the defense of entrapment, necessitating a jury charge on the matter, it certainly did not demand a finding of entrapment. See State v. Royal, 247 Ga. 309, 275 S.E.2d 646 (1981); Howell v. State, 167 Ga.App. 294, 306 S.E.2d 378 (1983).
The appellant also contends that the trial court's instruction on the law of entrapment was incorrect. The jury instruction as given by the trial court was taken essentially from the statutory definition in OCGA § 16-3-25, and various glosses to that definition added by the appellate courts of Georgia; the instruction concluded by reminding the jury that the state had the burden of proving beyond a reasonable doubt that the appellant had not been entrapped. The appellant, nevertheless, asserts that such a charge was deficient because it did not specifically direct that the state had to prove predisposition beyond a reasonable doubt. We have previously approved essentially the same jury instruction on entrapment given by the trial court in this case, and we will not now impose the necessity of charging on the state's burden of proof individually with regard to every element of a disputed matter. Frazer v. State, 165 Ga.App. 331, 299 S.E.2d 104 (1983).
2. "Before a taped statement may be admitted, the state must establish: (1) that the mechanical device was capable of taking testimony; (2) that the operator was competent; (3) the authenticity and correctness of the recording; (4) that no changes, additions, or deletions were made; (5) the manner of preservation; (6) the identity of the speakers; and (7) that the testimony was not elicited through duress." Howell v. State, supra, 167 Ga.App. at 295, 306 S.E.2d 378. See also Steve M. Solomon v. Edgar, 92 Ga.App. 207, 88 S.E.2d 167 (1955). The appellant contends that the requisite foundation for admissibility of the taped conversations was not shown solely because the tape recorder, which stopped momentarily on several occasions during playback of the tapes at trial, was obviously incapable of accurately taking testimony.
It must be noted that the recorder in question was used to tape the conversations in October and November 1980, while the trial occurred in April 1982. Agent Davis explained that during the interim he had used the recorder on numerous other occasions, that as recently as three weeks prior to the trial the machine had functioned properly, and that this playback problem had developed for the first time at the trial; this testimony was uncontroverted. Moreover, not only was there no showing of inaccuracy, but the appellant himself acknowledged the accuracy of the conversations. Under these circumstances, we find that the state completed the foundation necessary for admission of the taped conversations into evidence.
3. The appellant also contends that the trial court should have declared a mistrial when the jury indicated that it was deadlocked in its deliberations. The record shows that the jury began its deliberations at approximately 4:30 p.m. Shortly thereafter, a recharge of the law on entrapment was requested and given. A break for dinner lasted from 7:15 p.m. until 8:30 p.m., after which the jury resumed its deliberations. At 9:30 p.m., the jury reported that it was deadlocked, eleven to one, and the trial court gave an "Allen" charge. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). At 9:55 p.m., a second recharge on entrapment was given, at the jury's request, and at 10:50 p.m. the jury indicated that it was still deadlocked at eleven to one, although some progress had been made; the trial court then instructed the jury to decide whether it wanted to deliberate further or to discontinue. At 11:25 p.m., the jury returned its verdict of guilty, after which the jury was polled.
The specific "Allen" charge given by the trial court has previously been approved by the Supreme Court. Spaulding v. State, 232 Ga. 411, 207 S.E.2d 43 (1974); Ponder v. State, 229 Ga. 720, 194 S.E.2d 78 (1972). The appellant, however, asserts that under the circumstances of this case, the use of the "Allen" charge coerced the jury into reaching a verdict. Giving specific consideration to the possibility of coercion resulting from the use of an "Allen" charge, this court has approved such a charge, if it includes cautionary instructions that the verdict must be the conclusion of each juror and not a mere acquiescence by the jurors in order to reach an agreement. Herrin v. State, 138 Ga.App. 729, 227 S.E.2d 498 (1976); Willingham v. State, 134 Ga.App. 603, 215 S.E.2d 521 (1975). In the instant case, the trial court gave those cautionary instructions, and its additional instruction that the jury should decide whether to continue its deliberations or give up, especially contraindicates any coercion by the trial court. There was no need to declare a mistrial.
4. The appellant next contends that the trial court erred in allowing into evidence the testimony of the state crime lab employee that the substance obtained from the appellant had tested as positive for cocaine, because...
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