Parrott v. State

• Decision Date: 04 December 1992
• Docket Number: No. A92A1308,A92A1308
• Citation: 427 S.E.2d 276,206 Ga.App. 829
• Parties: PARROTT v. The STATE.
• Court: Georgia Court of Appeals

Page 276

427 S.E.2d 276

206 Ga.App. 829

PARROTT v. The STATE.

No. A92A1308.

Court of Appeals of Georgia.

Dec. 4, 1992.

Reconsideration Denied Dec. 17, 1992.

Certiorari Denied March 18, 1993.

Hackel & Hackel, Thomas M. Hackel, Waycross, Harrison, Harrison & Llop, Steven M. Harrison, Eastman, for appellant.

James L. Wiggins, Dist. Atty., Russell P. Spivey, Asst. Dist. Atty., for appellee.

SOGNIER, Chief Judge.

Alan Parrott was indicted together with Roosevelt Bray and Donald Ream on a charge of conspiracy to traffic in cocaine in violation of OCGA § 16-13-33. Parrott was tried separately and convicted by a Dodge County jury. He appeals from the denial of his motion for new trial.

1. Appellant contends the evidence was insufficient to support the verdict. The evidence adduced at trial established that in 1984-1986 appellant, who previously had pleaded guilty to drug conspiracy charges in Florida, and his codefendants were placed under surveillance by Florida and U.S. Customs authorities on suspicion of drug smuggling. Evidence was adduced connecting the three men to a Cessna 310 twin-engine aircraft (the "Cessna") stored at a hangar at Ft. Lauderdale Executive Airport. Pursuant to a court order, federal officials installed a tracking device in the Cessna. During this installation, authorities observed that the Cessna had been modified to add supplemental fuel tanks to increase its flight range. The tracking device subsequently recorded several flights to the Eastman-Dodge County Airport in Georgia where Bray recently had paid cash for a nearby house and two parcels of land.

In February 1985 the Cessna was detected flying low over the Florida coast without having filed a flight plan, which officials explained at trial is consistent with the activities of drug smugglers. Customs officials followed the Cessna in a Customs airplane but were forced to abandon the chase when the Cessna turned out to sea several hours later. On June 10, 1985, the Cessna was detected flying over the Gulf of Mexico near Texas. Again, Customs airplanes tracked the Cessna, flying over Mississippi, Alabama, and Georgia. The Cessna approached the Dodge County airport but then aborted the landing, apparently because the pilot observed the Customs aircraft. The Cessna continued to South Carolina, where parcels were dropped from the plane. The Customs aircraft was forced to discontinue its pursuit due to low fuel, and the Cessna was found abandoned at the Dodge County airport an hour later. Appellant and Bray were seen at an attorney's office in Eastman the next morning. The parcels dropped from the Cessna were located in South Carolina and were found to contain 150 pounds of South American cocaine with a purity of at least 80 percent.

Additional evidence was adduced that Ream was a pilot and that the Cessna was registered to a corporation he controlled; that a warehouse in Florida connected to appellant and the codefendants was searched and found to contain weapons, records of the criminal enterprise, and aircraft equipment, including the passenger seats removed from the Cessna; that documents prepared by appellant were found in a search of Bray's Dodge County home the day after the Cessna was abandoned; and that appellant and Ream met with Lazaro Fernandez, an admitted smuggler of Colombian cocaine, to discuss a joint drug smuggling enterprise but later informed Fernandez they could not complete the transaction because they had been forced to abandon their Cessna 310 aircraft after pursuit by law enforcement officials and their warehouse had been searched by authorities. Appellant was arrested in Ft. Lauderdale in July 1986 after a high-speed chase.

" 'Conspiracy consists in a corrupt agreement between two or more persons to do an unlawful act, the existence of which agreement may be established by direct proof, or by inference, as a deduction from acts and conduct, which discloses a common design on their part to act together for the accomplishment of the unlawful purpose.' [Cit.] '... "Slight evidence from an extraneous source [other than an accomplice] identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict." ' [Cit.]" Tookes v. State, 159 Ga.App. 423, 427(8), 283 S.E.2d 642 (1981). Circumstantial evidence was adduced from which the jury could conclude that appellant committed one or more overt acts in furtherance of a conspiracy with Ream and Bray to bring large quantities of cocaine into Georgia. We hold this evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of conspiring to traffic cocaine in Georgia. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant next contends the trial court erred by denying his motion for mistrial made after Nathan Platt, a witness called by the State, invoked his Fifth Amendment right against self-incrimination. Both the prosecutor and appellant's counsel previously had been informed by Platt that he would claim Fifth Amendment protection if necessary. Indeed, appellant's counsel had lunch with Platt the day before his testimony and also talked with Platt's attorney about Platt's intentions but did not request a hearing on the issue prior to Platt's testimony.

On direct examination, Platt testified at length about his prior contacts with appellant and Bray in Florida when Platt was a deputy sheriff. In response to the prosecutor's questions, Platt admitted having given a statement to Florida authorities about his involvement with appellant and Bray but invoked the Fifth Amendment when asked to disclose the contents of that statement. The court then dismissed the jury and conducted a thorough examination of Platt's claim of privilege, questioning Platt himself and also allowing appellant's counsel to cross-examine on this issue. The court concluded that Platt was entitled to assert the privilege, and the prosecutor conceded and stated he would not question Platt further. At that point, appellant moved for a mistrial and the court denied the motion. Appellant then cross-examined Platt, but only on the topic for which he continued to assert his Fifth Amendment protection (although appellant's counsel did elicit testimony from Platt that his statement in question had been false).

Appellant contends the effect of this incident was to deny his Sixth Amendment right to confront the witnesses against him. To safeguard the right of confrontation, the procedure to be observed when the State calls a witness who has indicated he intends to assert his Fifth Amendment right against self-incrimination, as articulated in Lingerfelt v. State, 235 Ga. 139, 218 S.E.2d 752 (1975) and Lawrence v. State, 257 Ga. 423, 424-425(3), 360 S.E.2d 716 (1987) and applied in Greenwood v. State, 203 Ga.App. 901-902(1), 418 S.E.2d 160 (1992), is as follows: When the witness manifests his intention to claim Fifth Amendment protection, the court must conduct a hearing outside the presence of the jury to determine whether the testimony the State seeks to elicit potentially could incriminate the witness. Lawrence, supra 257 Ga. at 424 & n. 3, 360 S.E.2d 716. If so, the question whether the testimony might incriminate the witness is left to the witness. Id.; Mallin v. Mallin, 227 Ga. 833, 834-835(1), 183 S.E.2d 377 (1971). If the witness concludes he must assert his Fifth Amendment privilege, the State will not be permitted, through the use of leading questions on topics the witness has indicated fall within the privilege, to suggest the guilt or complicity of the defendant. Greenwood, supra; Lawrence, supra at 257 Ga. 424-425 & n. 3, 360 S.E.2d 716; Lingerfelt, supra. Conversely, if during the hearing the court concludes the testimony could not incriminate the witness, the witness must testify. Lawrence, supra at 424, n. 3, 360 S.E.2d 716.

When the sequence of events is viewed in its entirety, the record clearly demonstrates that no violation of appellant's Sixth Amendment right of confrontation occurred. First, the trial court did follow the procedure set forth in Lawrence and Lingerfelt. Once Platt asserted the privilege, the court held the requisite hearing and concluded Platt was entitled to claim Fifth Amendment protection, and the State ceased its questioning. See generally Bowen v. State, 194 Ga.App. 80, 81-82(2), 389 S.E.2d 516 (1989). Second, in Lingerfelt and its progeny the error harmful to the defendant occurred when the prosecutor continued to ask leading questions he knew the witness would not answer but that implicated the defendant in wrongdoing. Contrary to the dissent's contentions, that error did not occur here because the evidence damaging to appellant was adduced through questions Platt did answer, not through leading or suggestive questions posed by the prosecutor to which Platt asserted the Fifth Amendment as a defense. Third, appellant could have cross-examined Platt on the damaging portions of his testimony, but he elected instead to pursue questioning only on the one point for which Platt had asserted Fifth Amendment protection.

Perhaps the better approach would have been to hold the hearing before Platt's testimony began and establish parameters for questioning in advance. However, we do not find the failure to follow such a procedure to be cause for reversal here because, in addition to the fact that the error the hearing procedure is intended to avoid did not occur here, the record unequivocally shows that appellant's knowledge of Platt's intentions was at least equal to the State's knowledge, yet appellant did not request a hearing in advance or otherwise raise the issue until after Platt had asserted his claim and the court had conducted the requisite hearing. Appellant cannot be permitted to complain of a ruling that his own conduct aided in causing. Dobbs v. State, 200 Ga.App. 300, 301, 407 S.E.2d 782 (1...