Victrum v. State, MAYCOCK-BECKLES
| Decision Date | 03 February 1992 |
| Docket Number | A91A2152,MAYCOCK-BECKLES,Nos. A91A2151,s. A91A2151 |
| Citation | 416 S.E.2d 740,203 Ga.App. 377 |
| Parties | VICTRUM v. STATE.v. STATE. |
| Court | Georgia Court of Appeals |
William M. Shurling III, for appellant (case no. A91A2151).
Maloy & Jenkins, James K. Jenkins, for appellant (case no. A91A2152).
Willis B. Sparks III, Dist. Atty., Kimberly S. Shumate, Asst. Dist. Atty., for appellee.
Defendant Wade Maycock-Beckles and defendant Earnest Victrum were charged jointly with trafficking in cocaine and possession of a firearm in the commission of a felony. They were also both charged separately with giving a false name to a law enforcement officer. They were jointly tried and convicted of all charges. Each defendant appeals. We combined the two appeals for purposes of this opinion.
1. Defendant Maycock-Beckles argues he was denied the opportunity of a full and fair hearing on his motion to suppress the evidence obtained as a result of a search of the apartment in which defendants were arrested. The affidavit in support of the search warrant for the apartment was based in pertinent part on information supplied to the affiant, who was the agent investigating the case, by Kevin Fuller, who had been arrested earlier in the evening and charged with trafficking in cocaine. The agent attested in the affidavit and in a sworn statement to the issuing magistrate that Fuller provided him with information concerning the place and persons from whom he had purchased the cocaine found on his person when he was arrested and that he had identified the apartment in question.
Defendant called Fuller as a witness with the intent of presenting his testimony denying he supplied the agent with the information contained in the affidavit. Fuller's attorney was present at the hearing to advise him and, to every pertinent question, Fuller invoked the privilege of the Fifth Amendment. Defendant's attorney stated it was his understanding that Fuller intended to enter a guilty plea to the trafficking charges pending against him and requested a continuance until after Fuller's sentencing hearing at which time Fuller would, presumably, be willing to testify. The trial court denied the request.
Contrary to defendant's contention, we hold the trial court did not err in conducting the hearing during which the witness invoked his privilege not to testify. The invocation was not made as a general objection to inquiry but was made in response to some, but not all, of defendant's questions. As to each question, the trial court allowed argument concerning whether the answer could incriminate the witness and made a determination on whether the danger was real and appreciable, in accordance with the procedure recommended in Spivey v. State, 200 Ga.App. 284, 285, 407 S.E.2d 425 (1991). Here, the questions the witness refused to answer pertained to the witness' familiarity with the defendants, whether he had ever visited the raided apartment and the statements he made to the State's agent. Since the witness pleaded guilty to the charge arising out of his activities on the day he was arrested, it is true, as defendant argues, that the answer to these questions could not further incriminate him as to these charges. Because, however, the evidence showed defendants had a history of using the apartment for drug trafficking, it is certainly possible that the witness' answer to that question could incriminate him in regard to other potential criminal charges. In regard to questions concerning the witness' statements to the State's agent, the prosecutor acknowledged he could be subject to charges for giving false statements. Thus, the trial court did not err in determining that the answers could incriminate the witness. Once it is determined that the answer could incriminate the witness, the decision whether the answer might incriminate must be left to the witness. Id. Here, the witness was rightly permitted to make that determination for himself, despite defendant's repeated assertions that the answers would not be incriminating.
Neither did the trial court abuse its discretion in denying defendant's motion for a continuance until after the witness had been sentenced for the charges pending against him. The witness continued to invoke his Fifth Amendment privilege and refused to testify at the hearing on defendant's motion for new trial, long after the witness had been sentenced on the charges pending against him at the time of the hearing on the motion to suppress. Thus, it appears that defendant was not prejudiced by the refusal to continue the hearing. Moreover, defendant has no right to postpone the criminal proceeding against him until the proceeding against another accused is complete in order to have the other accused available as a witness in his defense. See United States v. Carlin, 573 F.Supp. 44 (N.D.Ga.1983) aff'd. 734 F.2d 1480 (11th Cir.1984) (). To hold otherwise would permit, for example, co-defendants to avoid trial indefinitely on the ground that the testimony of the other defendant was necessary to each defendant's case.
2. Defendant argues the trial court erred in denying his motion to suppress because the search warrant was issued without a sufficient showing of the informant's reliability. The magistrate testified he was provided with Fuller's name, address, telephone number and date of birth. Fuller was in custody and had been charged with trafficking in cocaine when he gave his statement to the agent identifying the apartment at which he purchased the drugs in his possession at the time he was arrested. He described an automobile with Florida license tags, which the State's agent found parked in front of the apartment, and stated he made the purchase from the "Florida Boy" or "Florida Boys," whom he described as armed and dangerous.
Even though the informant was not previously known by the agent and he thus could not attest to the informant's reliability, the circumstances under which the statements were made provide the necessary indicia of reliability. ...
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