Timberlake v. State, s. A91A0214

• Decision Date: 05 June 1991
• Docket Number: Nos. A91A0214,A91A0215,s. A91A0214
• Parties: TIMBERLAKE v. The STATE. BROOME v. The STATE.
• Court: Georgia Court of Appeals

Page 537

406 S.E.2d 537

200 Ga.App. 64

TIMBERLAKE v. The STATE.

BROOME v. The STATE.

Nos. A91A0214, A91A0215.

Court of Appeals of Georgia.

June 5, 1991.

Rehearing Denied June 19, 1991.

Certiorari Denied Sept. 3, 1991.

McGuire, Cook & Martin, John J. Martin, Jr., Avondale Estates, for appellant (case no. A91A0214).

Ronald C. Conner, Conyers, for appellant (case no. A91A0215).

Robert F. Mumford, Dist. Atty., William F. Todd, Jr., Asst. Dist. Atty., for appellee.

SOGNIER, Chief Judge.

Edward Lee Timberlake and William P. Broome were each charged with three counts of violating the Georgia Controlled Substances Act. Broome was also charged with possessing a firearm during the commission of a crime and trafficking in cocaine. They were tried jointly and convicted by a jury on all counts, and each appeals from the judgment and sentence entered on the jury's verdicts.

Construed to support the verdicts, the evidence adduced at trial showed that Eddie Madeira, who was married to the former office manager of appellant Broome's mortgage business, was cooperating with the Rockdale County Police Department and the metropolitan Atlanta DEA State and Local Task Force in order to assist his son, who had been charged with a drug offense. As a result of information given him by Madeira, Task Force Group Supervisor Raleigh Lopez assigned several agents to observe a meeting between Madeira and Broome at a local restaurant. After that meeting, numerous conversations (which were monitored) took place between Broome and Lopez during which Lopez posed as Madeira's cousin from Puerto Rico who had $250,000 and wished to buy cocaine. Eventually, a deal was made for the sale of half a kilogram of cocaine, and Broome arranged for appellant Timberlake, who was in possession of the cocaine, to wait at a gas station nearby while Broome met with Lopez in a restaurant parking lot in Conyers to consummate the sale. A videotape was made of that meeting and was admitted into evidence and shown to the jury.

The tape and other evidence showed that because Lopez would not agree to advance the purchase price before seeing the cocaine, Broome agreed to furnish a small sample in order to get the money. Broome then left the parking lot, drove to the gas station where Timberlake awaited, and returned with a plastic bag containing a sample of a white powdery substance, later identified as a little over a half ounce of 80 percent cocaine. Lopez testified that after Broome gave him the sample, he was sitting in his car in the restaurant parking lot along with Special Agent Tony Pettigrew of the DEA when he observed Timberlake drive up in his own car and park nearby. Lopez then told Broome he was satisfied with the sample and wanted to see the rest of the cocaine, and they walked to Timberlake's vehicle. Timberlake's passenger window was open, and Lopez leaned in, showed a bag containing $25,000 in cash, and asked for the cocaine, whereupon Timberlake lifted a towel, revealing a package of white powder. In response to Lopez's question regarding its quality, Timberlake indicated the cocaine was "between 80 to 90 percent" pure, and broke the plastic bag to show Lopez the powdery consistency of the cocaine.

When Lopez indicated he would be interested in buying another two kilograms, Timberlake replied that he had two more at his home, but Lopez would have to go through Broome. At that point, Lopez gave the prearranged signal for the arrest. The package under the towel was seized by Agent Pettigrew, and it was later identified as containing 448 grams (15.7 ounces) of 79 percent cocaine. An inventory search after Timberlake's car was impounded revealed a leatherette case containing triple beam scales and a box of plastic ziplock bags in the hatchback, and a plastic bag containing a white powdery substance, later identified as a little over an ounce of 80 percent cocaine in the glove compartment. A .38 caliber handgun was found in the glove compartment of Broome's car.

1. Both appellants enumerate error in the prosecutor's questioning of Broome on cross-examination. The exchange in issue was as follows: Q. "Isn't it true Mr. Timberlake asked you to lie to help him in this case?" A. "No, sir." Q. "And you never told your wife that?" Both appellants argue that because the prosecutor knew Broome's wife had clearly invoked her privilege not to testify, see OCGA § 24-9-23, it was error to question Broome in a manner from which the jury could infer that his wife's testimony would indicate he was lying. The record reveals, however, that when defense counsel objected, a conference was held with the trial judge and defense counsel to discuss the matter outside the presence of the jury, during which the district attorney stated that he was "just going to withdraw the question." No objection was then made by either defense counsel, neither counsel moved for a mistrial, and the prosecutor moved on to another line of questioning. It is well established that if appellants deemed the remedy inadequate, it was incumbent upon them to seek curative instructions or move for a mistrial, which they did not do. See generally Barksdale v. State, 161 Ga.App. 155, 158(4), 291 S.E.2d 18 (1982). " 'Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. (Cit.)' [Cit.]" Hight v. State, 195 Ga.App. 727, 730(6), 394 S.E.2d 636 (1990).

2. Timberlake contends his cross-examination was improperly limited when he was prevented from questioning Lopez about the DEA's use of condemned funds in general. We do not agree. Lopez had testified that one reason not all his conversations with Broome had been recorded was that all six of his office's tape recorders were in use at the time. Timberlake sought to discredit Lopez's testimony by questioning him regarding forfeited funds in general, purportedly to show that the agency possessed sufficient funds to enable it to have purchased sufficient recording equipment to record all the conversations in issue. The State objected on relevancy grounds, and the trial court sustained the objection.

Questions of the relevancy of evidence are within the trial court's discretion. See Queen v. State, 182 Ga.App. 794, 796(2), 357 S.E.2d 150 (1987). " 'The right of cross-examination is not abridged where the examination is limited by the trial court to relevant matters by proper questioning.' [Cit.]" Ballentine v. State, 194 Ga.App. 560, 561(2), 390 S.E.2d 887 (1990). " 'Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.' [Cit.]" Robinson v. State, 182 Ga.App. 423, 428(20), 356 S.E.2d 55 (1987). Although the line of questioning excluded might have established that sufficient funds existed to buy additional tape recorders, it could not have established that the funds would have been allocated in the manner suggested by appellant or, more importantly, that the conversations Lopez testified he had with Broome did not occur. Indeed, Broome admitted the conversations occurred but testified that he had lied to Lopez during those conversations. Since it was the existence and the content of those conversations which was in issue, the trial court did not abuse its discretion in excluding this line of cross-examination. See Ballentine, supra.

3. Broome testified that he was 44 years old, had "never liked people who messed with drugs and [had] never done drugs," and was "not a drug dealer of any kind." He testified that, through his mortgage business, he had assisted Madeira in obtaining a loan on his house, and at that time, because his business was slow, had borrowed $4,000 or $4,500 of the loan proceeds from Madeira to catch up on some business bills. Several weeks before the arrest, Broome had encountered Madeira by chance, at which time Madeira had mentioned his own financial problems and the fact that he needed the money owed him, which was due. Broome testified he also knew that Madeira had recently had a heart attack and had no group insurance to cover the hospital bill. During the course of the next several weeks, according to Broome's testimony, Madeira repeatedly called Broome, mentioning that he and his wife would lose their home if they did not come up with some cash.

Madeira also informed Broome that his cousin from Puerto Rico was visiting, had $250,000, and wanted to buy some cocaine. Madeira suggested that if Broome knew anyone from whom his "cousin" (in reality Lopez, who was posing as Madeira's cousin) could buy drugs, both Madeira and Broome could solve their mutual financial problems by earning money putting Madeira's "cousin" in touch with a drug dealer. Broome explained that Madeira may have known that Broome was acquainted with drug dealers because Madeira and his wife had been invited to several Christmas parties at Broome's home at which those people were also in attendance. Broome testified that he "had people come to me before and asked me [where to buy drugs] and I always turned them down." However, this time, after initially putting Madeira off several times, he finally agreed because he "thought the world of" Madeira's wife because of her loyalty to Broome during her employment, and had been motivated to become involved in this scheme to sell cocaine by his desire to prevent Madeira's wife and her mother (who lived with the Madeiras) from losing their home because of Madeira's precarious financial situation. He testified he acceded to Madeira's requests only after Madeira called him several times to say his "cousin" was about to leave town with his money, putting pressure on Broome to come up with a cocaine supplier.

Broome asserted he did not know the source of the cocaine because he arranged through his friend "Minnie" from Alabama to have someone named "Tony" place it in Timberlake's car and tell Timberlake it was jewelry that Broome was going to sell so that Broome could repay...