Tomlin v. State, 67890
| Decision Date | 05 March 1984 |
| Docket Number | No. 67890,67890 |
| Citation | 170 Ga.App. 123,316 S.E.2d 570 |
| Parties | TOMLIN v. The STATE. |
| Court | Georgia Court of Appeals |
Albert C. Palmour, Jr., Summerville, for appellant.
David L. Lomenick, Jr., Dist. Atty., David Whitman, Asst. Dist. Atty., for appellee.
Defendant was found guilty of violating the Georgia Controlled Substances Act by selling marijuana to an undercover agent of the Georgia Bureau of Investigation (GBI) and sentenced to serve 10 years in the penitentiary. Defendant appeals from the judgment of conviction and sentence. Held:
1. The trial court did not err in denying defendant's motion to compel disclosure of the confidential informant since the evidence revealed that defendant already knew the informant. See State v. Royal, 247 Ga. 309, 313 (fn. 6), 275 S.E.2d 646. Moreover, defendant did not acquaint the court with the nature of his entrapment defense prior to the court's ruling in favor of nondisclosure. See State v. Royal, supra at page 313, 275 S.E.2d 646. Henderson v. State, 162 Ga.App. 320, 322(2), 292 S.E.2d 77.
2. Defendant enumerates as error the restrictions placed on him during cross-examination of certain state's witnesses. Essentially, defendant contends that he was restricted from asking questions concerning the identity of the informant and questions concerning a conflict in the testimony as to the whereabouts of Jackie Blackmon (the alleged confidential informant) on certain days. Defendant argues that these limitations of cross-examination denied him the right to a thorough and sifting cross-examination. Defendant's contention is without merit.
In the case sub judice, the defendant questioned certain state's witnesses as to their presence with the informant on certain dates. Defendant then inquired as to the witnesses' presence with Jackie Blackmon on those very same dates. This was an attempt by defendant to disclose the informant's identity indirectly after the court had already prohibited him from doing so directly. Therefore, the state's objections grounded upon the defendant's attempt to elicit the identity of the informant were properly sustained.
Moreover, Phillips v. State, 146 Ga.App. 423, 424(1), 246 S.E.2d 438. This record discloses no such abuse. Kessel v. State, 236 Ga. 373, 375(3), 223 S.E.2d 811.
3. Defendant contends the evidence demanded as a matter of law a finding that he had been entrapped. However, a distinction must be made between evidence which raises a defense of entrapment and evidence which would demand a finding of entrapment. See State v. Royal, 247 Ga. 309, 310, 275 S.E.2d 646, supra. "[A] defendant's testimony as to entrapment, even if unrebutted by any other witness to the alleged misconduct, will not entitle him to a directed verdict of acquittal unless that unrebutted testimony, together with all reasonable deductions and inferences therefrom, demands a finding that entrapment occurred." State v. Royal, supra at page 310, 275 S.E.2d 646.
In the case sub judice, defendant testified that a day prior to the drug transaction in question (January 26, 1983), Jackie Blackmon (the alleged confidential informant) came to his house and asked whether he and his stepbrother would be interested in helping him facilitate a sale of drugs. As defendant explained, Blackmon did not want the prospective buyers (the two female undercover agents) to know that he was the one selling the drugs or else they would want him to give (as a gift) the drugs to them and he would not make a profit. Thus, Blackmon proposed that he (Blackmon) bring the prospective buyers to defendant's house so that defendant and his stepbrother could make the sale for him. Defendant further testified that Blackmon told him that the prospective buyers were prostitutes from Atlanta and that after the drug sale had taken place, they would be back in town and stay with defendant and his stepbrother for a couple of days.
This unrebutted testimony together with all reasonable deductions and inferences therefrom, did not demand as a matter of law a finding that defendant had been entrapped. Defendant did not know at the time of the sale that the informant was an informant or that the female prospective buyers were GBI agents. Nor did the informer lead defendant to believe that by selling the marijuana, he was assisting the state. Therefore, the case of Perry v. State, 143 Ga.App. 227, 237 S.E.2d 705 cited by defendant in his brief is distinguishable.
Furthermore, the testimony of the GBI agents who witnessed the alleged sale provided evidence of defendant's predisposition to deal in drugs. So while it is true that there were some...
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