Smith v. State, 52753

• Decision Date: 18 October 1976
• Docket Number: No. 1,No. 52753,52753,1
• Citation: 231 S.E.2d 83,140 Ga.App. 385
• Parties: D. W. SMITH v. The STATE
• Court: Georgia Court of Appeals

Page 83

231 S.E.2d 83

140 Ga.App. 385

D. W. SMITH v. The STATE.

No. 52753.

Court of Appeals of Georgia, Division No. 1.

Oct. 18, 1976.

Rehearing Denied Nov. 10, 1976.

Erwin Mitchell, Terry L. Miller, Dalton, for appellant.

Samuel J. Brantley, Dist. Atty., Dean B. Donehoo, Asst. Dist. Atty., Dalton, for appellee.

CLARK Judge.

Defendant presents five enumerations of error in his appeal from a conviction for possession and sale of amphetamines in violation of the Georgia Controlled Substances Act. We deal with each in sequence.

1. Prior to trial defense counsel moved under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) for disclosure of information in the State's possession possibly favorable to the accused. Pursuant to this request the district attorney disclosed the name of the informant and stated that no offers, deals or promises were made to him. Defendant asserts, however, that the State in fact suppressed information of an understanding or agreement between the State and its informant for leniency in another case pending against him in exchange for this testimony. See Rini v. State, 235 Ga. 60, 218 S.E.2d 811.

Evidence adduced during the trial disclosed that prior to the informant's undercover activity in the present case he had been arrested on a drug charge by the same prosecuting G.B.I. agent in the case sub judice and that no further action had been taken on that charge. Our review of the trial transcript reveals defense counsel were aware of the informant's history of drug offenses and knew of his arrest and the lack of prosecution thereon.

Both the prosecution and defense questioned the informant and the G.B.I. agent about the informant's past criminal record. They also interrogated these witnesses as to the existence of any deals, arrangements or understandings concerning leniency or reward in exchange for the informant's testimony. Both witnesses answered the latter inquiries in the negative. The informant further testified that he hoped his testimony would help him in his own case.

The jury was aware therefore that the informant had a history of convictions for drug violations and that prior to his activity in this case he had been arrested by the same prosecuting G.B.I. agent on a drug charge for which he had not been prosecuted. 'The issue of credibility was thus before the jury and the jury could not have been unaware that the witness had assisted the officers in making the purchases of drugs and was assisting the state by presenting his evidence.' Cauley v. State, 130 Ga.App. 278, 296, 203 S.E.2d 239, 253. See Echols v. State, 231 Ga. 633(1), 203 S.E.2d 165; Morris v. State, 228 Ga. 39(10), 184 S.E.2d 82; Cauley v. State, 134 Ga.App. 310(1), 214 S.E.2d 402.

Moreover, defendant has not shown any evidence that an agreement or understanding existed. The record and the transcript of evidence refute any contention of a deal. See Eades v. State, 232 Ga. 735, 736, 208 S.E.2d 791.

Accordingly, the first enumeration of error is without merit.

2. Defendant next contends that the court's charge on entrapment was erroneous and prejudicial. This is without merit. Considering the charge on entrapment in its entirety, it was a correct statement of the law. See Rucker v. State, 135 Ga.App. 468(3), 218 S.E.2d 146; Gibson v. State, 133 Ga.App. 68, 69(2), 209 S.E.2d 731.

3. During its case in chief the State asked its prosecuting witness, G.B.I. agent Davis, what was his next 'involvement in the investigation' folowing the physical arrest of the defendant. After narrating some events concerning the taking of the defendant into custody, Agent Davis continued 'I attempted to interview him by asking him did he have anything that he would like to talk to us about. I also explained to him that he didn't have to talk to us, and he decided not to talk to us. So the attempt to interview him was . . ..' At this point defense counsel objected and moved for a mistrial. The court sustained the objection, overruled the motion for a mistrial, directed the district attorney not to pursue that line of inquiry, and directed the jury to disregard the answer given by the witness.

Defendant contends that a mistrial should have been granted because the witness' remark was an improper comment on defendant's right to remain silent during custodial interrogation and was therefore highly prejudicial to his right to a fair and impartial trial.

In Lowe v. State, 136 Ga.App. 631(2), 222 S.E.2d 50 this court was concerned with the propriety of cross-examining a defendant about his failure to tell police at the time of his arrest facts supportive of his claim of his innocence. Relying on United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) we held that the questioning of the defendant, under the facts in that case, was irrelevant and highly prejudicial in that it imported to the jury an indication of the defendant's guilt because he was silent when first questional although presently claiming to be innocent. '(T)his type of examination raises serious constitutional questions involving a defendant's Fifth Amendment right to remain silent following arrest. Additionally, the allowance of this type of examination undermines the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and curtails the due process rights otherwise afforded to criminal defendants.' Lowe v. State, 136 Ga.App. at 636, 222 S.E.2d at 54, supra.

In both Lowe and Hale, supra, the facts involved an improper examination at trial of a criminal defendant. In Hale there was an improper attempt to impeach the defendant on his defense of alibi because the government had failed initially to 'establish a threshold inconsistency between silence at the police station and later exculpatory testimony at trial, . . ..' 422 U.S. at 176, 95 S.Ct. at 2136. Compare Johnson v. State, 235 Ga. 355, 219 S.E.2d 430. In Lowe the state's attempt to impeach the defendant was similarly improper. Moreover, the trial court in that case had not given any curative instructions to the jury.

' Evidence as to silence on the part of the defendant at the time of his arrest should be excluded when objected to, for he is then entitled to remain silent, and the prosecution may not use against him the fact that he stood mute or claimed his privilege.' Reid v. State, 129 Ga.App. 660, 664(5), 200 S.E.2d 456, 461. See Jacobs v. State, 137 Ga.App. 592(2), 224 S.E.2d 462. This principle of law is applicable here.

Unlike Hale and Lowe, the improper comment here was made during a narrative on the part of the G.B.I. agent in the telling of a course of events. The remark was apparently not intended to nor did it have the effect of being probative on the guilt...