Williams v. State

• Decision Date: 16 July 1984
• Docket Number: Nos. 67626,68056,s. 67626
• Citation: 171 Ga.App. 807,321 S.E.2d 386
• Parties: WILLIAMS v. The STATE. BATISTE v. The STATE.
• Court: Georgia Court of Appeals

Page 386

321 S.E.2d 386

171 Ga.App. 807

WILLIAMS v. The STATE.

BATISTE v. The STATE.

Nos. 67626, 68056.

Court of Appeals of Georgia.

July 16, 1984.

Rehearing Denied July 31, 1984.

Certiorari Denied Sept. 13, 1984.

Jerry L. Patrick, Jr., Jonesboro, for appellant in No. 67626.

Wade M. Crumbley, McDonough, for appellant in No. 68056.

Robert E. Keller, Dist. Atty., William L. McKinnon, Asst. Dist. Atty., for appellee.

McMURRAY, Chief Judge.

Defendants were convicted of possessing with intent to distribute more than 400 grams of cocaine, in violation of the Georgia Controlled Substances Act. The enumerations of error as to each appellant are different and will be discussed separately.

Defendants were arrested at the Atlanta Airport after questioning by narcotics officers whose suspicions were aroused by their behavior after they got off a plane from Fort Lauderdale, Florida, together. A kilogram (2.2 pounds) of cocaine was found in a search of Ms. Batiste's purse; a small capsule of cocaine was found hidden in Williams' undershorts; and a small amount of marijuana was found in his bag. Defendants were tried only for possession of the cocaine in Ms. Batiste's purse. Other facts will be included in our discussion of the separate enumerations of error.

Defendant Batiste

1. Defendant Batiste contends the trial court erred by denying her motion to suppress the cocaine found in her purse because her arrest was illegal. The defendants were arrested by Paul Markonni, a special agent of the Drug Enforcement Administration (DEA). Markonni testified that he informed defendant Batiste that she was arrested because "we felt she was in possession of drugs" and also for giving a false name to law enforcement officers. Defendant Batiste argues that Markonni lacked probable cause to arrest her for possession of drugs and that Markonni lacked authority to arrest her for the misdemeanor offense of giving a false name to law enforcement officers.

Pretermitting the issue of whether there was probable cause for the arrest of defendant Batiste for possession of drugs we address the authority of Markonni to make the arrest for the misdemeanor offense of giving a false name to a law enforcement officer. Obviously Markonni, under his arrest powers as a DEA agent, lacked authority to arrest defendant Batiste for the misdemeanor offense against the State of Georgia (as opposed to a crime cognizable under the laws of the United States). See 21 U.S.C. § 878(3). Also, while there was evidence that Markonni had been sworn in as a deputy sheriff of Fulton County and Markonni testified that he accomplished the arrest as a deputy sheriff of Fulton County, it was uncontraverted that Markonni had not attended (nor received a waiver by certificate of compliance of) certain instructional training courses under the provisions of the Georgia Peace Officer Standards and Training Act (then Code Ann. Title 92A, Ch. 21, now OCGA § 35-8-1 et seq.). (Also note these events transpired prior to the enactment of OCGA § 35-9-15.) Thus, Markonni had no power of arrest as a deputy sheriff because then Code Ann. § 92A-2115 (now OCGA § 35-8-17(a)) provides: "Any peace officer ... who does not comply with the provisions of this chapter shall not be authorized to exercise the powers of law enforcement officers generally and particularly shall not be authorized to exercise the power of arrest." Failure to comply with the Act renders the arrest unauthorized. Mason v. State, 147 Ga.App. 179, 182(7), 248 S.E.2d 302. However, such a characterization of an arrest as unauthorized is not equivalent to a determination, nor even necessarily implies that the arrest is illegal. Instead, "[t]he non-complying peace officer is thereby relegated to the status of a private citizen who is also authorized to effect an arrest under certain circumstances." Mason v. State, 147 Ga.App. 179, 182(7), 248 S.E.2d 302, supra.

As he was unauthorized to exercise the arrest powers of a Fulton County deputy sheriff, the issue becomes whether Markonni as a private citizen could legally arrest defendant Batiste for giving a false name to a law enforcement officer, a misdemeanor offense to which Markonni's arrest powers as a DEA agent were not applicable. "A private person may arrest an offender if the offense is committed within his presence or within his immediate knowledge." Code Ann. § 27-211 (now OCGA § 17-4-60). A private person may make an arrest for a misdemeanor offense only when that offense occurs within his presence and moreover the arrest must occur immediately after the perpetration of the offense. Delegal v. State, 109 Ga. 518, 521-522(1), 35 S.E. 105; Walker v. State, 144 Ga.App. 838(2), 242 S.E.2d 753.

The record clearly shows probable cause for Markonni to have believed defendant Batiste guilty of committing the misdemeanor offense of giving a false name to a law enforcement officer. Code Ann. § 26-2506 (now OCGA § 16-10-25); Johnson v. State, 149 Ga.App. 273, 253 S.E.2d 889; Mallory v. State, 164 Ga.App. 569, 570(4), 298 S.E.2d 290. Markonni was a law enforcement officer in the lawful discharge of his official duties (as a DEA agent) when defendant Batiste gave him a false name. Additionally, Markonni was accompanied by a City of Atlanta police officer who was participating in the investigation and present at the time defendant Batiste gave the false name. The officers' proximity at the time of the statement and involvement in the investigation present evidence that the offense of giving a false name to a law enforcement officer was also committed in regard to this police officer. The misrepresentation was clearly made within the presence and within the immediate knowledge of Markonni. The arrest by Markonni was effected immediately after perpetration of the offense. Therefore, Markonni's arrest of defendant Batiste was a lawful citizen's arrest. After the lawful arrest of defendant Batiste the facts and circumstances surrounding her detention resulted in the lawful discovery that she was a drug trafficker. Cash v. State, 136 Ga.App. 149(3), 221 S.E.2d 63; Walker v. State, 144 Ga.App. 838(2), 839, 242 S.E.2d 753, supra.

2. The issues raised as to the punishment imposed for "trafficking in cocaine" raised by defendant Batiste in her motion to quash the indictment have been decided adversely to her in Paras v. State, 247 Ga. 75, 274 S.E.2d 451.

3. The trial court did not err in permitting the State to call, in rebuttal as to the competence of an expert witness tendered by defendant, a witness who had not been sequestered. Gibbons v. State, 248 Ga. 858, 865, 286 S.E.2d 717.

4. Defendant Batiste contends that the State was improperly allowed to examine her expert witness as to irrelevant matters. Defendant's expert was allowed to testify as to the data from tests (gas-liquid chromatograph and nuclear magnetic resonance spectometer) conducted by the State's expert chemist in the course of determining that white powder seized from defendant Batiste was cocaine. In the course of voir dire of defendant's expert as to his qualifications, the State was permitted to ask defendant's expert whether he had been held not competent to analyze controlled substances. Although defendant's expert did not conduct any test of the substance himself, his interpretation of the State's data was obviously substantially similar to an integral part of the testing procedure that is the interpretation of raw data. Thus, we cannot say that the State's inquiry was not relevant. The trial court has wide discretion in determining relevancy, and where relevancy is in doubt the evidence should be admitted and its weight left to the finder of fact. Owens v. State, 248 Ga. 629, 630, 284 S.E.2d 408. Baker v. State, 246 Ga. 317, 319, 271 S.E.2d 360.

5. Defendant Batiste enumerates as error the denial of her motion to strike the testimony of the State's expert witness, a chemist. Defendant Batiste contends that the State failed to properly respond to a motion for discovery of scientific reports under the provisions of Code Ann. § 27-1303 (now OCGA § 17-7-211) in that the State provided only a document setting forth the conclusion of the State's expert and failed to provide two documents described as "printouts."

Defendant Batiste acknowledges that her position is contrary to our recent decisions such as Hartley v. State, 159 Ga.App. 157, 158-160(2), 282 S.E.2d 684; and Sears v. State, 161 Ga.App. 515, 288 S.E.2d 757, but urges us to overrule these decisions. We decline to do so and note that our Supreme Court has cited these cases with approval. Williams v. State, 251 Ga. 749, 753-754, 312 S.E.2d 40.

6. Defendant Batiste's final enumeration of error contends that there are breaks in the chain of custody of the evidence found in defendant Batiste's purse following her arrest. Markonni testified that he sealed the white powder seized from defendant Batiste in a DEA evidence bag. According to Markonni the DEA evidence bags come factory sealed on three sides and after evidence is placed therein an evidence seal is placed on the top and the bags are heat sealed on the fourth side making the bags virtually tamper proof. Markonni testified that State Exhibit 7 was the same package in which he had placed the white powder seized from defendant Batiste and sent to the crime lab, and that the only alterations were two cuts taken off the bottom of the bag which were sealed in the bag. The prosecution's chemist testified that he received State's Exhibit 7 for testing, that at that time it was sealed, that it did not appear to have been entered since it was sealed at the top and that it was unlikely that the bag could have been entered since it was sealed at the top without it being apparent to him. The chemist opened the bag by cutting off a portion of the bottom of the bag, the portion being cut being afterwards placed within the bag as a match to verify how many times the bag had been entered. The chemist...