Ridgeway v. State

• Decision Date: 30 April 1985
• Docket Number: No. 69854,69854
• Citation: 330 S.E.2d 916,174 Ga.App. 663
• Parties: RIDGEWAY v. The STATE.
• Court: Georgia Court of Appeals

Page 916

330 S.E.2d 916

174 Ga.App. 663

RIDGEWAY v. The STATE.

No. 69854.

Court of Appeals of Georgia.

April 30, 1985.

Carl P. Greenberg, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Margaret V. Lines, Alfred D. Dixon, Asst. Dist. Attys., for appellee.

CARLEY, Judge.

Appellant was indicted for three counts of selling controlled substances (heroin and cocaine) and one count of possessing cocaine. He was acquitted of the possession charge, but was convicted of the three sales counts. He appeals.

1. With regard to the sales counts, appellant enumerates the general grounds. Evidence adduced at trial established that an informant and an undercover narcotics agent went to a specified location where the informant introduced the agent to "Shorty," who was subsequently identified as appellant. On that occasion, appellant sold the agent cocaine and heroin. Eight days later, the informant and the agent returned to the same location and again found appellant. This time, the agent purchased cocaine from appellant, paying for the drugs with two fifty-dollar bills which had previously been photocopied for purposes of identification. Immediately upon completing the transaction and leaving the area, the agent radioed two surveillance officers who had been waiting nearby. The agent informed them that the drug purchase had been made, and he described appellant's appearance and location. These two officers then went to that location and confronted appellant for the purpose of ascertaining his identity. The officers found a change purse hidden near appellant. The purse, which contained packets of illegal drugs, was the same purse from which appellant had removed drugs to sell to the undercover agent. The two fifty-dollar bills which had financed the agent's recent purchase were discovered in a roll of money on appellant's person. All three police officers positively identified appellant as the person involved in the incidents. In opposition to that evidence, appellant took the stand and raised the defense of mistaken identity. He testified that the events described by the officers had not occurred, that he had never before seen the change purse containing drugs, and that he had never sold drugs to anyone. He further testified that he had never sold drugs to anyone. He further testified that he had never before seen two of the police officers, and that he had first seen the other officer when he had been arrested, several months after the alleged sales.

"Where a defendant seeks reversal on the general grounds, 'the only question presenting itself to the appellate court is whether there is sufficient evidence to support the verdict. [Cit.] It is the function of the jury, not the appellate court, to determine the credibility of witnesses and weigh any conflicts in the evidence. The appellate court views the evidence in a light most favorable to the jury's verdict.... [Cits.] ['] [Cit.] From our review of the evidence we find that 'any rational trier of fact could have found the essential elements of the crime(s) beyond a reasonable doubt.' Jackson v. Virginia, 443 U.S. 307, 319 (99 S.C. 2781, [2788], 61 L.Ed.2d 560) [1979]." Boyd v. State, 168 Ga.App. 246, 248, 308 S.E.2d 626 (1983). See also Miller v. State, 163 Ga.App. 889 (1), 296 S.E.2d 182 (1982); Little v. State, 165 Ga.App. 389, 300 S.E.2d 540 (1983); Laws v. State, 153 Ga.App. 166(1), 264 S.E.2d 700 (1980).

2. Appellant enumerates as error the denial of his motion to sever for trial two of the four charges against him.

"Two or more offenses may be tried together if they: '(a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.' [Cit.] Where two or more offenses are joined only because they are of the same or similar character, the trial court, upon motion of the defendant, must order separate trials for each of the offenses. [Cit.] But when they are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, '... the court in the interest of justice may order that one or more of such charges be tried separately.' [OCGA § 16-1-7(c) ]. [Cits.]" (Emphasis in original.) Gober v. State, 247 Ga. 652, 653, 278 S.E.2d 386 (1981).

In the instant case, two of the charges were based upon appellant's first transaction with the undercover agent, and the remaining two counts arose from the second transaction, which took place eight days later. In both incidents, appellant sold cocaine to the same police officer. Both incidents occurred in the same vicinity, one in midafternoon and the other in the early evening. The modus operandi of the perpetrator was the same on both occasions. Some of the same witnesses gave testimony as to both incidents. These factors clearly demonstrate that there was more reason for joining the offenses for trial than simply that they were "of the same or similar character." Thus, the decision not to sever the offenses for trial was within the trial court's discretion. See Davis v. State, 158 Ga.App. 549 (1), 281 S.E.2d 305 (1981). The trial court did not abuse its discretion in denying appellant's motion to sever. Jones v. State, 168 Ga.App. 652, 310 S.E.2d 17 (1983); Johnson v. State, 158 Ga.App. 398, 280 S.E.2d 419 (1981). Compare Davis v. State, 159 Ga.App. 356 (1), 283 S.E.2d 286 (1981).

3. Appellant asserts that the trial court erred in overruling his objections to two questions propounded by the State during voir dire.

OCGA § 15-12-133 provides in relevant part: "[C]ounsel for either party shall have the right to inquire of the individual jurors examined touching any matter or thing which would illustrate any interest of the juror in the case, including any opinion as to which party ought to prevail, the relationship or acquaintance of the juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning, or bias which the juror might have respecting the subject matter of the action or the counsel or parties thereto...." The trial court has discretion to determine whether a question is permissible under this code section. See generally Hart v. State, 137 Ga.App. 644, 224 S.E.2d 755 (1976); Henderson v. State, 251 Ga. 398, 399 (1), 306 S.E.2d 645 (1983).

"Conduct of voir dire is within the discretion of the trial court and the court's rulings are presumed proper in the absence of some manifest abuse of discretion. [Cit.]" Godfrey v. Francis, 251 Ga. 652, 662, 308 S.E.2d 806 (1983). There was no such abuse of discretion in permitting the State to inquire whether a prospective juror had ever been the victim of a crime. Lamb v. State, 241 Ga. 10, 12 (1), 243 S.E.2d 59 (1978). Nor was there an abuse of discretion in allowing an inquiry concerning a prospective juror's experience with children or students who had taken drugs. Since appellant was charged with selling illegal drugs, the question was clearly within the parameters of OCGA § 15-12-133. See Craig v. State, 165 Ga.App. 156 (1), 299 S.E.2d 745 (1983).

4. Appellant next enumerates as error the trial court's refusal to require that the identity of the undercover agent's confidential informant be revealed. Appellant contends that the informant's identity was not privileged because he participated in the drug sale which was the basis of the first two counts against appellant.

We find no evidence of such participation by the informant in the instant case. The record shows that the informant and the undercover agent went to a specified place where appellant was found. The informant introduced the agent to appellant and stated that the agent wanted to buy some heroin. The informant then merely stood nearby while appellant and the officer engaged in the purchase and sale of illegal drugs. Thus, the informant's role was limited to locating appellant and performing an introduction. " 'Where ... a person merely takes an undercover police officer to a location and identifies, or introduces the officer to the defendant, and the officer arranges for and buys contraband from the defendant, and the person witnesses such sale, ... such person is an informer and not a "decoy" and a disclosure of his name, address, etc., to the defendant is not required as a matter of law ... but rests in the discretion of the trial judge, balancing the rights of the defendant and the rights of the [S]tate under all the facts and circumstances.' [Cit.]" Childs v. State, 158 Ga.App. 376, 280 S.E.2d 401 (1981). See also Gilmore v. State, 168 Ga.App. 76, 77, 308 S.E.2d 232 (1983). Here, where appellant did not plead entrapment and "where it appears that disclosure of the informant's identity would at most serve to provide possible testimony to impeach the agent's testimony, we do not find nondisclosure an abuse of discretion by the trial court. [Cit.]" Little v. State, supra, 165 Ga.App. at 392, 300 S.E.2d 540. See also Miller v. State, supra, 163 Ga.App. at 890 (2), 296 S.E.2d 182.

5. Appellant next assigns as error the admission of testimony concerning the two fifty-dollar bills found on his person. Appellant contends that that evidence was the product of an unlawful search. However, we have scrutinized the particular facts and circumstances of the surveillance officers' confrontation with appellant, particularly their probable cause to believe that appellant possessed evidence of a crime, and their reason to believe that that evidence would be lost absent prompt action by them. We find that their inspection of appellant's roll of money did not violate his constitutional rights against unreasonable searches and seizures. See generally Collins v. State, 161 Ga.App. 546 (1), 287...