Scudiere v. State

• Citation: 203 S.E.2d 581,130 Ga.App. 477
• Decision Date: 04 December 1973
• Docket Number: No. 48626,No. 2,48626,2
• Parties: Richard SCUDIERE, Jr. v. The STATE
• Court: United States Court of Appeals (Georgia)

Page 581

203 S.E.2d 581

130 Ga.App. 477

Richard SCUDIERE, Jr. v. The STATE.

No. 48626.

Court of Appeals of Georgia, Division No. 2.

Dec. 4, 1973.

Rehearing Denied Dec. 18, 1973.

Guy B. Scott, Jr., Athens, for appellant.

Richard E. Allen, Dist. Atty., Augusta, for appellee.

Syllabus Opinion by the Court

HALL, President Judge.

Richard Scudiere, Jr., appellant here, sold marijuana and LSD to undercover agent H. V. Kronise, a police officer with the Augusta Police Department. Another undercover agent accompanied Kronise, and one Wallace Moore was with Scudiere at the apartment where the sales were made. Scudiere and Moore were jointly indicted and tried on two counts, one for the sale of marijuana and one for the sale of LSD. Kronise testified at the trial concerning the circumstances of his purchase from Scudiere, whom he identified as the seller. The state also presented the testimony of Steven Carothers, an acquaintance of Scudiere and his cellmate following his arrest on these charges, that in an in-jail conversation with Carothers 'He (Scudiere) had said he had sold to a narcotics agent and that he was selling dope.' . . . 'that he was selling drugs and that he gave Wallace Moore a dollar for gas of the marked money.' The jury acquitted Moore and convicted Scudiere on both counts, from which he brings this appeal.

1. Enumeration 1, concerning the overruling of the new trial motion, raises only points enumerated as error individually and disposed of by this opinion.

2. Enumeration 2 claims error in the trial court's failure without a request to charge the jury on the weight and credit to be given the testimony of expert witnesses. In the absence of a request, the failure of the court to charge on the subject of expert testimony is not grounds for a new trial. Cameron v. State, 111 Ga.App. 691, 692, 143 S.E.2d 189; Godwin v. Atlantic Coast Line RR. Co., 120 Ga. 747(6), 48 S.E. 139.

3. As his third claimed error, Scudiere enumerates the trial court's failure without a request to charge on the subject of admissions and confessions with respect to his remarks to his cellmate Carothers. In the absence of a request to charge no error occurred, whether these remarks be considered a mere admission (Norrell v. State, 116 Ga.App. 479(2), 157 S.E.2d 784) or as a confession (Story v. State 145 Ga. 43(2),88 S.E. 548; Staggers v. State, 101 Ga.App. 463, 464, 465, 114 S.E.2d 142; Keen v. State, 43 Ga.App. 331(3), 158 S.E. 611; Chapman v. State, 28 Ga.App. 107(2), 110 S.E. 332; Washington v. State, 24 Ga.App. 65(3a), 100 S.E. 31).

4. Fourth, Scudiere enumerates error in the trial court's allowing Carother's testimony of his 'confession' to be presented to the jury without a voluntariness hearing claimed to be required by Jackson v. Denno,378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634; and Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593. This contention cannot succeed because not only is there no claim by Scudiere that his statements to Carothers were in any way involuntary, but on this record no colorable claim of involuntariness seems feasible. In Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524, the Supreme Court held that accused's statements concerning the killing, made to an insurance agent visiting him in the jail, who in collaboration with officials tape recorded the conversation, were as a matter of law not involuntary. No hearing on voluntariness is required until some claim of involuntariness is made (Procunier v. Atchley, 400 U.S. p. 451, 91 S.Ct. 485); see Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, supra. No such claim is made here, and the only objection to this testimony at the time it was given was that it put Scudiere's character in issue. 'Absent a proper objection and any evidence that the defendant's in-custody statement was involuntary, the admission of such statement in evidence without a hearing as to its voluntariness was not error.' Watson v. State, 227 Ga. 698(1), 182 S.E.2d 446; accord, Fountain v. State, 228 Ga. 306, 309, 185 S.E.2d 62.

5. Fifth, Scudiere enumerates the admission of the testimony complained of in paragraph four above on the additional ground that over his objection it injected his character in evidence. This testimony was admissible for the reasons stated above, and this fifth enumeration is without merit.

6. The sixth enumeration claims error in the trial court's failure to charge the jury that they must make an independent determination of the voluntariness of the confession under Jackson v. Denno. Such an instruction is unnecessary where, as discussed above, no evidence of nor claim of involuntariness appears. Jackson v. Denno, on which Scudiere founds his position, does not allow the jury independently to pass on voluntariness, as was pointed out by Mr. Justice Black in his dissenting opinion in Sigler v. Parker, 396 U.S. 482, 484, 90 S.Ct. 667, 24 L.Ed.2d 672. Nor does Georgia law independent of Jackson v. Denno and its progeny require the jury to pass on voluntariness where there is no claim of involuntariness. See 7 Encyclopedia of Georgia Law, Criminal Law § 523 (1963).

7. The seventh enumeration concerns the court's failure to grant the mistrial motion when Carothers testified that Scudiere told him 'that he had sold drugs' prior to the offense in question. The objection was made that this injected Scudiere's character in evidence. The State urges that this testimony is admissible to show state of mind, course of dealing, or scheme of the accused. Though the point is perhaps not entirely free from doubt, we hold that no error occurred, on the authority of Terry v. State, 36 Ga.App. 305, 136 S.E. 476, a case involving the scienter with which transactions in contraband were performed, as well as Ledford v. State, 215 Ga. 799, 804, 113 S.E.2d 628, holding that no error occurred in refusing a mistrial motion where the statement of other crimes was a part of the accused's confession to the crime charged. See Moore v. State, 221 Ga. 636(1), 146 S.E.2d 895; Sligh v. State, 171 Ga. 92, 110, 154 S.E. 799; Diggs v. State, 90 Ga.App. 853, 858, 84 S.E.2d 611; Goldberg v. State, 20 Ga.App. 162, 163, 92 S.E. 957. In any event here the trial court explicitly instructed the jury to disregard the testimony entirely, cf. Ledford v. State, supra 215 Ga. p. 800, 113 S.E.2d 628. Moreover, Carothers testified to Scudiere's admission of guilt of the crime charged, and the undercover agent testified to making the purchase from Scudiere. On this record, had error occurred with reference to testimony of earlier drug sales, the same would be harmless.

8. Scudiere enumerates as his eighth error the court's refusal to grant his mistrial motion subsequent to agent Kronise's testimony on cross examination that 'I did not induce him to commit any crime that he wouldn't have committed before I came there.' The objection was that this put defendant's character in issue. The trial judge has large discretion in matters of this type. See Bowen v. State, 123 Ga.App. 670, 182 S.E.2d 134, and here elected to deny the motion based upon the fact that Scudiere's attorney had elicited such an answer by the formulation of his question to the agent which was 'You went there to try to make somebody commit a crime, didn't you?' We hold the answer responsive to the question and find no merit in this enumeration.

9. Enumeration nine urges that the record shows entrapment. On the contrary, the record is devoid of evidence of entrapment. Agent Kronise testified that he went to the place in question with police money with which to make drug purchases. However, he did not himself even ask to buy drugs; he waited until Scudiere asked if he would like to buy, and he said 'Yes.' No entrapment exists where the officer merely furnishes an opportunity to a person who is ready to commit the offense. Sutton v. State, 59 Ga.App. 198(2), 200 S.E. 225.

10. Enumeration ten complains of the admission of state's exhibit one which was a paper sack containing the drugs sold to the agent, on the double ground that the chain of custody was not adequately proved and that the writing on the bag, 'Victim: Richard Scudiere and Wallace Moore' appeared to connect the two defendants to the crime. Concerning the chain of custody, Scudiere complains in essence that there were two occasions when the chain was broken: when officer Joyner held them in a locked box in the locked trunk of his car, while he ate supper at home before delivering them to the locker at the jail; and when witness Price from the crime lab kept the drugs in his bedroom closet one evening before bringing them to the trial. In the absence of any evidence to refute the testimony of the unbroken chain of custody, there was no error in admitting the exhibit. White v. State, 230 Ga. 327, 334, 196 S.E.2d 849. It is not necessary that the state show the drugs to have been personally guarded each minute.

Regarding the writing on the bag, the enumeration is without merit: such writing showed only identification of the source of the contents and was in effect part of the chain of custody. The two defendants were connected to the crime charged through eyewitness testimony and not through this bag.

11. The eleventh enumeration, alleging as error the trial court's allowing the witness Price, a chemist from the Department of Public Safety Crime Laboratory to testify over Scudiere's objection that he presented no certificate to prove that he was a licensed and authentic agent, is without merit. Scudiere concedes on appeal that no statute requires this, and no other authority for his position is set forth. We decline to...