Smith v. State, s. 53397-53402
| Decision Date | 24 February 1977 |
| Docket Number | Nos. 53397-53402,No. 3,s. 53397-53402,3 |
| Citation | 141 Ga.App. 529,233 S.E.2d 841 |
| Parties | Helen SMITH v. The STATE (Six Cases) |
| Court | Georgia Court of Appeals |
E. Kontz Bennett, Jr., Waycross, for appellant.
Dewey Hayes, Dist. Atty., Douglas, for appellee.
1. The jury was authorized from the evidence to find the following:
A G.B.I. agent approached a resident and indicated that he wanted to buy marijuana. The resident took him to a store and called out the defendant. The question was put to her; she called out another girl and both got in the car and directed the agent to a house. The second girl, a juvenile, went into the house with $10.00 given her by the defendant (the agent refused to pay over any money until he saw the merchandise) and returned with marijuana, which the agent accepted and for which he paid with a ten dollar bill. This evidence authorized a verdict of guilty against either or both of the girls involved. It further appears that the second girl who was called in by the defendant was or might have been working with a deputy sheriff, and that she called him before getting into the agent's automobile. Neither of these facts adds up to entrapment. "It does not constitute entrapment where a defendant approaches a police officer (or, as here, an informer) with an offer to commit a crime, if that officer then plays a role in order to provide the defendant with an opportunity to commit the intended offense." Orkin v. State, 236 Ga. 176, 195, 223 S.E.2d 61, 76. Here, the defendant herself first approached the juvenile who directed them to the drug vendor. Nor was she entrapped by the G.B.I. agent. Entrapment under Code § 26-905, where the phrase "undue persuasion" is used in context with "deceitful means" means something more than mere requests to purchase. Garrett v. State, 133 Ga.App. 564, 566, 211 S.E.2d 584. The general grounds urging that entrapment existed as a matter of law are without merit. Nor would the exclusion of the evidence complained of in Enumerations 4 through 7 change the result. Neither the juvenile's relationship with any law enforcement officers nor the failure to lodge a complaint against her in the present case in the juvenile court establishes the entrapment defense. She was in fact present and testified on the trial of the case. That this is not sufficient evidence of "agreement" which might impugn the credibility of another party to the crime, see Fleming v. State, 236 Ga. 434, 438, 224 S.E.2d 15.
2. The state's attorney, referring to a witness in his concluding argument, said, "But the minute you start working in drug cases and so on, they not only feel free to lie about you they create them and they preach them." While counsel may draw inferences from the evidence regarding the credibility of witnesses, he should not substitute his interpretation of the testimony for that of the jury. Barnum v. State, 136 Ga.App. 469(3), 221 S.E.2d 829. It is improper for the district attorney to urge his personal belief either as to the defendant's guilt or the veracity of the witnesses, although he may draw these conclusions from facts proven. Manning v. State, 123 Ga.App. 844(6), 182 S.E.2d 690. Counsel should have been rebuked for the remark and the jury cautioned to disregard it. But not every remark of counsel, although it strains at the evidence, will justify a reversal. See Ga. Northern Ry. Co. v. Hathcock, 93 Ga.App. 72(3), 91 S.E.2d 145. The credibility of certain witnesses being very much under attack throughout the trial, we doubt that this additional straw broke the back of the defense. The statement is not approved but does not in context constitute reversible error.
3. Where the defendant has been indicted, tried, and convicted, there is no basis under Georgia law for reversing the conviction because of failure to hold a commitment hearing. State v. Middlebrooks, 236 Ga. 52, 222 S.E.2d 343.
4. Following the conviction and sentence in the marijuana case the defendant pleaded guilty to and was sentenced on two accusations of theft. Defense counsel subsequently moved to set aside the guilty pleas and sentences and to disqualify the trial judge from these cases, based on the facts that the night before the verdict a deputy sheriff had threatened his life, and immediately after the sentence in the marijuana case but before the taking of pleas in the theft cases he had assaulted him in the hall. These motions contend that counsel had reported the actions to the trial court and received no support from him, that counsel was therefore justifiably fearful for his personal safety, upset, and not capable of rendering effective assistance to his client; that she did not have benefit of counsel in this broad sense when she pleaded guilty to the theft charges, and that the judge's lack of affirmative protection showed bias and prejudice on his part. The judge stated that he did not know the defendant, had no interest in the case, had not personally been present at the altercation between counsel and the police officer, and refused to recuse himself. At a subsequent hearing entitled a hearing on the motion to withdraw the pleas of guilty counsel desired to swear the...
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Norley v. State
...have committed except for the conduct of such officer." 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 ......
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Shirley v. State
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Smith v. State
...guilt or the veracity of the witnesses, he still is authorized to draw these conclusions from facts proven. See Smith v. State, 141 Ga.App. 529, 531(2), 233 S.E.2d 841. It was therefore not improper for the assistant district attorney here in his argument to infer that the defendant was not......
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Philmore v. State
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