Emanuel v. State

393 S.E.2d 74, 195 Ga. App. 302, 1990 Ga. App. LEXIS 451
CourtCourt of Appeals of Georgia
DecidedMarch 16, 1990
DocketA89A2351, A89A2352
StatusPublished
Cited by13 cases

This text of 393 S.E.2d 74 (Emanuel v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Emanuel v. State, 393 S.E.2d 74, 195 Ga. App. 302, 1990 Ga. App. LEXIS 451 (Ga. Ct. App. 1990).

Opinions

Banke, Presiding Judge.

Defendants David Emanuel and Mary Elizabeth Bruneio were jointly indicted on charges of selling cocaine and distributing marijuana in violation of the Georgia Controlled Substances Act. They were jointly tried before a jury and found guilty merely of possessing cocaine and marijuana. Their primary contention on appeal is that they should have received a directed verdict of acquittal based on the state’s failure to introduce evidence rebutting their defense of entrapment.

It was established without dispute at trial that the appellants had sold approximately 12 grams of cocaine to an undercover agent and had given him a “small sample” of marijuana in connection with that transaction. Defendant Emanuel testified that he and Bruneio were persuaded to make this sale by a close friend named Dennis Evans, who told them that he had gotten into trouble involving drugs, that he had agreed to “turn people over” to the government in return for a reduced sentence, that the law enforcement agents for whom he was supposed to be informing were angry at him due to his lack of success in producing arrests, and that he needed the defendants to help him make a case against a man named “Dominique,” who was coming to town from Chicago, by posing as drug dealers. Emanuel stated that he and Bruneio resisted Evans’ entreaties at first but were eventually persuaded to help him because of their belief that he was working for the government. “Dominique,” of course, proved to be the drug enforcement agent for whom Evans was informing. Emanuel stated that Evans brought the cocaine and marijuana to their apartment prior to the transaction and subsequently retrieved the remaining drugs, along with the money the agent paid them for the cocaine he purchased.

The undercover agent testified that Emanuel wanted to sell him approximately 50 grams of cocaine for $50 a gram but that he told him he was only interested in purchasing a sample of between 10 and 15 grams. The agent further testified that Emanuel told him “he normally bought the cocaine at $45 per gram and he would normally purchase a hundred grams at a time,” that defendant Bruneio told him the cocaine they wished to sell him was of “high quality,” and that Emanuel advised him that it was “not cut to the street level.” The agent stated that both defendants “snorted” cocaine upon his arrival at their apartment, that Bruneio then removed a “rock” of cocaine from a plastic bag and weighed it, and that he purchased this rock for $600 after determining that it weighed approximately 12 grams.

[303]*303Emanuel denied that either he or Bruneio had ever used drugs, maintaining that the only person who had used drugs in his apartment on the night in question was Evans. Also, it was established without dispute that the agent had made subsequent requests to purchase drugs from them but that they had refused to meet with him. It was further shown that Emanuel had hired an investigator in an attempt to secure Evans’ presence at trial, but without success. Held:

1. “[T]here exists no ‘per se rule that a defendant is entitled to a directed verdict where the informant is not called to rebut the defendant’s testimony of entrapment. ... (A) defendant’s testimony as to entrapment, even if unrebutted by any other witness to the alleged misconduct, will not entitle him to a directed verdict of acquittal unless that unrebutted testimony, together with all reasonable deductions and inferences therefrom, demands a finding that entrapment occurred.’ State v. Royal, 247 Ga. 309, 310 (275 SE2d 646) (1981).” Goolsby v. State, 184 Ga. App. 390, 391 (361 SE2d 684) (1987).

We believe the jury in this case could reasonably have determined that the defendants had a criminal predisposition to possess drugs (the only offense of which they were found guilty), based on the undercover agent’s testimony that both of them “snorted” cocaine on the night in question. Also, it was inferable from Emanuel’s purported statement to the agent that he “normally” purchased a hundred grams of cocaine at a time as well as from his statement that the cocaine he was selling had not been “cut to street level,” that this was not his first experience with drug trafficking. It follows that the defendants were not entitled to a directed verdict of acquittal on the basis of their entrapment defense. The defendants’ reliance on Perry v. State, 143 Ga. App. 227 (237 SE2d 705) (1977), as authority for a contrary holding is misplaced, as it does not appear that similar evidence of criminal predisposition was present in that case. Construing the evidence in favor of the verdict, we hold that a rational trier of fact could reasonbly have found the defendants guilty of possessing cocaine and marijuana beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The undercover agent testified on cross-examination that Evans had previously been arrested for selling cocaine, that he had agreed to act as an informant in the hope of receiving a lenient sentence on that charge, and that he had ultimately received a probated sentence after pleading guilty to a lesser offense. The defendants contend that during its subsequent redirect examination of the agent, the state was improperly permitted to “bolster[] the credibility of the non-testifying informant,” as follows: “Q. Is it an unusual practice to allow one [drug dealer] to plead out to a lesser sentence in order to get a greater number? A. No, it is not. I would have to say that Mr. [304]*304Evans was a very good informant . . . who accomplished infiltrating numerous other cocaine distributors where large sales of cocaine were made other than this case. Q. Approximately how many of those type seizures did you make as a result of his information? ... A. I can recall, just thinking now, at least three substantial arrests were in excess of kilograms of cocaine were seized through the utilization of Dennis Evans as an informant.”

This testimony cannot be viewed as improperly bolstering Evans’ credibility, since he was not present in court and did not testify. We note that the defendants’ original objection to this testimony was that it was irrelevant and immaterial. However, the defendants’ entrapment defense was based on the theory that Evans was so desperate to produce an arrest that he was willing to “set up” two close friends who were not even involved in drug trafficking. In this context, the agent’s testimony on redirect examination was relevant to show that Evans’ situation was not in fact that desperate. Thus, the defendants’ objections to this testimony, as stated, were properly overruled.

3. In response to the defendants’ initial objection that the above testimony by the undercover agent lacked relevance, the trial court made the following comment: “I thought y’all’s position was he got a light sentence and there was no good reason for him to have it.” The defendants unsuccessfully moved for a mistrial on the basis of this comment, complaining that it constituted an improper expression of opinion by the court “as to the nature of our testimony as to what we were trying to establish.” On appeal, they contend that the comment “bolstered the state” and was “extremely prejudicial” to the defense. However, we are unable to perceive how the statement could have had either of these effects. “The statutory inhibition (OCGA § 17-8-55

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Bluebook (online)
393 S.E.2d 74, 195 Ga. App. 302, 1990 Ga. App. LEXIS 451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emanuel-v-state-gactapp-1990.