Whitehead v. State
| Decision Date | 06 November 2002 |
| Docket Number | No. A02A1576.,A02A1576. |
| Citation | 574 S.E.2d 351,258 Ga. App. 271 |
| Court | Georgia Court of Appeals |
| Parties | WHITEHEAD v. The STATE. |
OPINION TEXT STARTS HERE
Walker L. Chandler, Zebulon, for appellant.
W. Kendall Wynne, Jr., Dist. Atty., Charles E. Rooks, Asst. Dist. Atty., for appellee. RUFFIN, Presiding Judge.
After a jury trial, Donald Wayne Whitehead was convicted of trafficking in marijuana and possession of marijuana with intent to distribute. On appeal, Whitehead contests the trial court's denial of his motion to suppress evidence, refusal to grant a mistrial, questioning of a witness, and preliminary instructions to the jury. Whitehead also claims there was insufficient evidence to support his trafficking conviction and that he was denied effective assistance of counsel at trial. For the reasons that follow, we affirm.
The record shows that members of the East Metro Drug Enforcement Team, in conjunction with the Drug Enforcement Administration ("DEA"), undertook a covert operation to purchase a large quantity of marijuana through a confidential informant. Before initiating the purchase, agents thoroughly searched both the informant and his vehicle. Inside the car, task force agents installed several electronic devices, including a global positioning system, a digital voice recorder, and an audio transmitting device. Agents monitored the informant's whereabouts by airplane and unmarked vehicles.
The informant drove to the residence of his friend, Bobby Hayes, who had earlier approached the informant about buying drugs. Hayes joined the informant in the car and directed him to Whitehead's house. When the informant and Hayes went into Whitehead's house, approximately 15 agents maintained surveillance. Inside, the informant and Hayes purchased 100 pounds of marijuana from Whitehead and arranged to buy 200 additional pounds. When the informant and Hayes left, half of the drug agents followed them, and the remaining officers continued watching Whitehead's house. A DEA officer contacted the Georgia State Patrol and asked officers to intercept the informant's vehicle. They did so and found a red cooler in the car that contained 24 packaged blocks or "compressed bricks" of marijuana. The officers also found four additional blocks of marijuana in a green ammunition can inside the car. The combined gross weight of the marijuana was 100.64 pounds.
Meanwhile, Whitehead left his house in his pickup truck. DEA agents followed Whitehead, and, after confirming that officers had seized the marijuana from the informant and Hayes, they stopped Whitehead. After Whitehead was stopped, he was placed under arrest and brought to DEA Agent Frank Smith at a location near Whitehead's residence. Smith informed Whitehead of his Miranda rights. Whitehead then told Smith that another 25 pounds of marijuana were located in Whitehead's house, and Smith relayed this information to the people applying for a search warrant for Whitehead's residence. Smith brought Whitehead back to the house after he obtained the search warrant. Investigators executing the warrant found 25 pounds of marijuana located inside a blue cooler in the master bedroom. Investigators also found twenty guns including eight pistols in the house and $19,000 in cash on top of a china cabinet.
Sergeant Chris Cain conducted a second interview with Whitehead at Whitehead's residence, which was recorded. Whitehead told Cain that Hayes had contacted him about two weeks earlier to buy 200 pounds of marijuana. Whitehead said he was able to obtain only 125 pounds of marijuana. He agreed to sell 100 pounds of it to Hayes for $800 per pound.
At trial, the informant testified that he and Hayes purchased 100 pounds of marijuana from Whitehead. The State presented forensic testimony confirming that the confiscated contraband was, in fact, marijuana and the weight of the marijuana. The jury heard the audiotape of the custodial statements Whitehead made at his house. The jury also listened to the tape recording made in the informant's car.
1. Whitehead contends that the trial court erred in denying his motion to suppress the evidence obtained during the traffic stop of his vehicle and the search of his residence. In reviewing a ruling by the trial court on a motion to suppress, the factual findings of that court will not be disturbed unless they are clearly erroneous and not supported by any evidence.1 Further, in reviewing the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial.2
(a) Traffic stop. Whitehead argues that because he was unlawfully stopped, the evidence obtained as a result of the stop should have been suppressed. He claims that the arresting officer lacked any reasonable, articulable suspicion that he was committing or was about to commit any criminal offense. On the contrary, before stopping Whitehead, investigators had already intercepted the informant and Hayes and confiscated the red cooler containing what appeared to be compressed bricks of marijuana. The informant and Hayes had already implicated Whitehead as their source. Thus, the record contains evidence to support the trial court's finding that officers had probable cause to stop Whitehead's vehicle.3
(b) Search of the residence. Whitehead contends that the search warrant was based on illegally obtained information and that the evidence gained from the execution of the search warrant should be suppressed. Whitehead complains that the affidavit supporting the search warrant was based on coerced custodial statements he gave during the seven hours that he was detained. Specifically, Whitehead complains that, after being arrested, officers pressured him to give a statement, and that he was confused and afraid that his wife would be arrested if he did not tell the officers what they wanted to know.
Evidence shows that the affidavit for the search warrant was based on information that the informant and Hayes had purchased marijuana at Whitehead's residence and Whitehead's initial statement to Agent Smith that he had another 25 pounds of marijuana at his house. The affidavit provided the judge issuing the search warrant with a substantial basis for concluding that probable cause existed to search Whitehead's residence for contraband or evidence of a crime.4 As discussed below, evidence also showed that Whitehead's statements were freely and voluntarily given. The affiant's reliance upon the information gained from Whitehead's statements does not render the search warrant invalid.
(c) Custodial statements. Whitehead argues that his statements to police should also be suppressed. As to his two custodial statements, "[t]he question of whether a post-Miranda custodial statement is admissible depends on whether, under the totality of the circumstances, there was a knowing and voluntary waiver of rights."5 Here, the record supports the trial court's finding that such statements were freely and voluntarily given.
Agent Smith testified that, soon after Whitehead was stopped, handcuffed, and advised of his rights, Whitehead told Smith that there were another 25 pounds of marijuana at Whitehead's house. Later, while officers were executing the search warrant, Whitehead gave a tape-recorded statement in which he admitted participating in the drug transaction. Sergeant Cain, who conducted the taped interview, testified he had personally advised Whitehead of his rights and Whitehead signed a waiver form. Both Cain and Smith testified that no threats or promises were made to Whitehead. The trial court was able to hear the testimony of these officers as well as the tape of the second statement. Whitehead has not shown by reference to the record any coercive acts by law enforcement personnel bringing into question the voluntary nature of his confession. We conclude that the trial court did not err in denying Whitehead's motion to suppress his custodial statements.
(d) Audiotape. Whitehead claims the trial court erred by allowing the jury to hear the audiotape of Whitehead's second statement to police. The tape was incomplete because the recorder's batteries failed during the recording, causing portions of the statement to be inaudible. Whitehead argued to the trial court that the presentation of part of the conversation destroyed the integrity of the statement as a whole, and that it in effect changed the statement. "When a recording is inaudible, its admissibility is subject to question; but when material portions are inaudible, then the recording should be rejected when it is the only evidence offered as to the statement." 6 Here, Whitehead's statement was corroborated by the informant's testimony about the purchase of marijuana from Whitehead, as well as the physical evidence showing that a total of 125 pounds of marijuana was recovered from the informant's vehicle and Whitehead's residence. Whitehead makes no showing that the incomplete recording is misleading, or that the State intentionally failed to record a portion of Whitehead's statement. Furthermore, the jury was informed that the audiotape did not cover the entire statement, and the State presented it without alteration. The foundational requirements for the admission of the audiotape were met.7 The admission of evidence is generally within the sound discretion of the trial court, and we find the trial court's admission of the audiotape was not an abuse of that discretion.8
2. Whitehead complains that the trial court erred in denying his motion for mistrial based on the State's inflammatory display to the jury pool of numerous firearms owned by his wife, himself, and his family. The transcript belies these claims. There is no evidence that a cache of weapons was openly brandished in the courtroom during voir dire or prior to trial. The exhibit at issue consisted of guns seized during the execution of the warrant that were packaged in boxes. Noting that a single firearm in a glass case was visible, and...
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