Welch v. State, A92A1674

• Decision Date: 04 December 1992
• Docket Number: No. A92A1674,A92A1674
• Citation: 427 S.E.2d 22,207 Ga.App. 27
• Parties: WELCH v. The STATE.
• Court: Georgia Court of Appeals

Page 22

427 S.E.2d 22

207 Ga.App. 27

WELCH v. The STATE.

No. A92A1674.

Court of Appeals of Georgia.

Dec. 4, 1992.

Reconsideration Denied Dec. 18, 1992.

Tommy W. Welch, pro se.

Bagby, Bagby & Henley, T. Lee Henley, Dallas, for appellant.

William A. Foster, III, Dist. Atty., Thomas V. Driggers, James E. Barker, Asst. Dist. Attys., for appellee.

POPE, Judge.

Defendant Tommy W. Welch appeals his conviction of one count of attempt to sell cocaine and two counts of violation of the Georgia Controlled Substances Act for the sale of cocaine. Although the defendant has no right to represent himself and also be represented by counsel (Hance v. Kemp, 258 Ga. 649(1), 373 S.E.2d 184 (1988)), throughout the proceedings the trial court permitted representation both by defendant and by his counsel. On appeal, defendant and his counsel filed separate enumerations of error and separate briefs. We have examined both sets of enumerations of error and find no reversible error.

1. Both defendant and his counsel argue the trial court erred in denying his motion for directed verdict to Count I of the indictment, charging defendant with attempt to sell cocaine. The indictment alleged defendant agreed to sell "a quantity of cocaine" to an undercover agent and agreed upon "price and quantity." Both defendant and his counsel argue no evidence was presented to prove the allegations of this count of the indictment. We disagree. Two informants who assisted the undercover officers in the transactions with defendant and his co-defendants testified that defendant agreed to provide them with cocaine at a later time if they would give him $200. One of the informants testified defendant "talked about weight and volume." We conclude the evidence was sufficient to create an issue for jury determination and the trial court did not err in denying defendant's motion for directed verdict on this count.

2. Both defendant and his counsel argue the trial court erred in denying defendant's motion for directed verdict on Counts II and III of the indictment, charging him with the sale of cocaine. Both argue that the only evidence implicating defendant in the two transactions is the conflicting testimony of the two informants who admitted they were convicted drug violators. The credit to be given the testimony of a witness where impeached for conviction of a crime involving moral turpitude is for the jury to determine under proper instructions from the court. Taylor v. Marsh, 107 Ga.App. 575(1), 130 S.E.2d 770 (1963). The record shows the jury was properly instructed concerning the credibility of witnesses, and we cannot say the witness' testimony was insufficiently credible to submit the issue of defendant's guilt to the jury.

The inconsistency between the testimony of the two informant witnesses concerned the order in which the two sales occurred and the exact number of packages of crack cocaine which were sold. One witness stated defendant first made a sale of 13 small bags of crack cocaine at a trailer late at night. According to this witness, after midnight he and the other informant went to a house near the trailer and defendant sold him another six bags of cocaine. The witness identified the two groups of packages of cocaine as exhibits which were introduced into evidence. The other informant witness testified defendant sold approximately ten bags of crack cocaine at the house between 10:00 and 11:00 p.m., and after midnight the two informants went to a trailer. This witness, however, admitted his recollection of the details of the two transactions could have been affected by the passage of time between the transactions and the date of the trial. "The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury's verdict." King v. State, 157 Ga.App. 733, 734(1), 278 S.E.2d 491 (1981). The inconsistencies between the testimony of the two informant witnesses were minor and explainable and the trial court did not err in denying defendant's motion for directed verdict as to Counts II and III.

3. Both defendant and his counsel argue the evidence was insufficient to sustain his convictions. We have examined the record and conclude the evidence was sufficient so that a rational trier of fact could find the essential elements of each of the crimes charged beyond a reasonable doubt.

4. We reject the argument of defendant's counsel that the trial court erred in admitting in evidence the cocaine which one of the informant witnesses identified as that which the defendant sold him. We have examined the trial transcript and, contrary to counsel's argument, we conclude the State proved an adequate chain of custody for the evidence.

5. Defendant, acting pro se, argues the trial court erred in allowing the prosecutor to state during his opening statement that one of defendant's co-defendants had pleaded guilty to the charges. The prosecutor's statement does not appear in the record. The record does reflect, however, that when an objection was raised to the comment the prosecutor noted that his statement contained no indication that the co-defendant had implicated the other defendants. The co-defendant's plea was not admitted into evidence but was merely mentioned in the prosecutor's opening statement. The trial court instructed the jury that the opening statements of the attorneys were not evidence in the case. Thus, the prosecutor's reference did not violate OCGA § 24-3-52, which prohibits the confession of one joint offender from being admissible in evidence against another joint offender. It was...