Ward v. State, A89A1831
| Decision Date | 28 September 1989 |
| Docket Number | No. A89A1831,A89A1831 |
| Parties | WARD v. The STATE. |
| Court | Georgia Court of Appeals |
Milton F. Gardner, Jr., Milledgeville, for appellant.
Joseph H. Briley, Dist. Atty. and Al Martinez, Asst. Dist. Atty., for appellee.
The appellant brings this appeal from his conviction of trafficking in cocaine.
Captain Jerry Wolfe of the Milledgeville Police Department testified that while turning his patrol car around in a parking lot he observed the appellant seated in a parked car engaged in a discussion with two other individuals who were standing next to his car. Wolfe stated that he exited his patrol car, walked up to the trio, and stood there for a while listening to their conversation, until he heard the appellant, whom he had known for years, tell the other two, " Wolfe then said to the appellant, "Wait a minute, I want to talk to you," and the appellant, who had just started his car, turned off his ignition. Wolfe testified that he then told the appellant he had heard reports he was dealing in drugs and advised him that, if he was, he needed to stop. He stated that the appellant denied he was dealing drugs, whereupon he asked the appellant, "Do you have any drugs on you now?" He said the appellant answered, "About a joint," and that he (Wolfe) responded by telling the appellant he "was going to let him throw it away and he could leave."
Following that exchange, according to the officer, the appellant took two paper bags out of his car, dumped the contents of one of them into some weeds, threw the other onto a pile of debris at the edge of the pavement, and asked, "Can I go?" Wolfe stated that he responded in the affirmative and that the appellant then drove away. Wolfe testified that he immediately examined the discarded items and observed that the bag left on the pile of debris contained a white powdery substance, while the material dumped on the ground consisted of "little bitty baggies" of a type which, in his experience, were used to package crack cocaine. The white powdery substance was delivered to the State Crime Lab for analysis and was revealed to be almost nine ounces of 65 percent pure cocaine. The appellant was apprehended and taken into custody several hours after the seizure of the cocaine, pursuant to an arrest warrant.
The appellant's account of his confrontation with Captain Wolfe was somewhat different from the latter's. While he acknowledged that Wolfe had questioned him about drugs in the parking lot, he denied that Wolfe had asked him whether he was in possession of any drugs or that he had told him he was. He also denied having thrown anything out of the car or having had any cocaine in his possession. Held:
1. The appellant contends that the seizure of the cocaine was the product of an unlawful arrest and that the trial court accordingly erred in denying his motion to suppress the contraband. We disagree. " '(A) person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " Moran v. State, 170 Ga.App. 837, 840, 318 S.E.2d 716 (1984), quoting from United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980). There was no indication that Captain Wolfe made any intimidating display of force or authority to the appellant or anyone else on the scene prior to telling him he wished to speak to him. Rather, the officer's testimony was that upon approaching the appellant and the other two individuals with whom the appellant was engaged in conversation he had simply stood silently waiting for them to finish their conversation. From the officer's account of the confrontation, which in this regard did not conflict significantly with the appellant's, the trial court was authorized to conclude that the appellant had no reason to believe he was not free to leave up until the moment he confessed to being in possession of a "joint." (Of course, after he admitted to being in possession of a "joint," probable cause existed for his arrest for possession of marijuana.)
"On motion to suppress evidence, the trial judge sits as the trior of the facts, hears the evidence, and his findings ... are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]." State v. Swift, 232 Ga. 535, 536, 207 S.E.2d 459 (1974). As the evidence in the present case did not demand a finding that a reasonable person in the appellant's position would have believed he was not free to leave at the time he was asked if he had any drugs in his possession, we hold that the trial court did not err in denying his motion to suppress. We do not consider this court's decision in State v. Smith, 137 Ga.App. 101, 223 S.E.2d 30 (1975), to be authority for a contrary holding, inasmuch as the appeal in that case was from the grant of a motion to suppress. In this case, as in Smith, we have declined to interfere with the trial court's determination regarding whether a detention occurred, based on our conclusion that there was evidence to support the court's determination in this regard.
2. The trial court did not err in permitting Captain Wolfe to testify that he told the appellant he had heard reports that the appellant was dealing in drugs. While this statement certainly constituted hearsay and would not have been admissible as evidence that the appellant was in fact dealing in drugs, it was nevertheless relevant and admissible to establish the events leading to the discovery of the cocaine and to the appellant's subsequent arrest. "Testimony of the arresting officer with reference to the legal investigation and circumstances surrounding the arrest is authorized as original evidence under OCGA § 24-3-2 ..." Moses v. State, 166 Ga.App. 425(2), 304 S.E.2d 528 (1983). Accord Cleveland v. State, 155 Ga.App. 267(2), 270 S.E.2d 687 (1980). The appellant's reliance upon Little v. State, 165 Ga.App. 389(3), 300 S.E.2d 540 (1983), as contrary authority is misplaced, in that the hearsay evidence at issue there, unlike the testimony at issue in the present case, had no relevance to the circumstances surrounding the defendant's arrest. Rather, its only purpose was to explain why the arresting officer had approached the defendant seeking to purchase drugs.
3. The appellant contends the trial court erred in allowing Captain Wolfe to testify that, on the only other occasion or occasions when he had seen small plastic baggies such as the ones seized in the present case, they were being used to store "crack," a derivative of cocaine. However, the witness made this assertion twice before the appellant interposed any objection to it, and the appellant made no subsequent motion to strike that testimony. "In this [S]tate it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which the appealing party might have." Bridgers v. State, 183 Ga.App. 98, 99, 357 S.E.2d 894 (1987). Consequently, this enumeration of error presents nothing for review.
4. The appellant contends that the trial court erred in allowing the State to introduce testimony and present argument to the jury that the cocaine seizure in this case was the largest in the history of Baldwin County,...
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