Hunt v. State

420 S.E.2d 656, 204 Ga. App. 799, 92 Fulton County D. Rep. 1374, 1992 Ga. App. LEXIS 991
CourtCourt of Appeals of Georgia
DecidedJuly 6, 1992
DocketA92A0497
StatusPublished
Cited by9 cases

This text of 420 S.E.2d 656 (Hunt 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
Hunt v. State, 420 S.E.2d 656, 204 Ga. App. 799, 92 Fulton County D. Rep. 1374, 1992 Ga. App. LEXIS 991 (Ga. Ct. App. 1992).

Opinion

Cooper, Judge.

Appellant was convicted by a jury of the sale and distribution of cocaine and sentenced to life imprisonment pursuant to OCGA § 16-13-30 (d). He appeals from the judgment and sentence entered on the conviction and from the denial of his motion for new trial.

The evidence reveals that the Georgia Bureau of Investigation conducted a long-term undercover drug investigation whereby agents made undercover drug buys over an extended period of time but made no arrests until the conclusion of the investigation. During one such drug buy, an undercover agent accompanied by a confidential informant went to a house previously identified by the informant as a location where drugs could be purchased. The agent and the informant went around to the back of the house where several persons were standing around talking. As they approached, a man standing in the doorway to the house asked them what they wanted. The informant told the man that the agent wanted to purchase $100 worth of crack cocaine to sell. The agent then accompanied the man to an area away from the confidential informant and the other persons who were in the yard. The agent gave appellant $100 in exchange for a package of crack cocaine. The confidential informant did not see the transaction take place but subsequently told the GBI that appellant was the man from whom the agent purchased the cocaine. The agent identified appellant in a photographic lineup, as well as at trial, as the man from whom he purchased the cocaine.

1. Appellant contends that the trial court erred in failing to require the State to disclose the identity of the confidential informant prior to trial or in conducting an in camera interview with the informant to determine the materiality of the informant’s testimony. In Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1957), the Supreme Court set forth the following standard for determining when to limit the government’s privilege to withhold the identity of a confidential informant: “Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Id. at 60-61. The balancing test of Roviaro was embraced by our Supreme Court in Connally v. State, 237 Ga. 203 (227 SE2d 352) (1976) and is well established as the law of Georgia. Thornton v. State, 238 Ga. 160 (231 SE2d 729) (1977). We are unable to conclude that under the facts of this case, the trial court abused its discretion in not compelling disclosure of the informant’s identity. The informant participated in the transaction only to the extent of introducing the agent to appellant and telling appellant how much cocaine the agent wanted to buy. The *800 informant did not see the actual sale take place. The agent also made an independent identification of appellant from a photographic spread. Appellant did not testify on his own behalf or call any witnesses. “[W]here the evidence sought from the unidentified source is required by [appellant] on ‘the mere possibility that the police might be impeached (it) is not enough to demand disclosure of the informer’s identity.’ [Cits.]” Connally v. State, 237 Ga. 203, 208 (2), supra; see also Josey v. State, 199 Ga. App. 780 (1) (406 SE2d 125) (1991).

Appellant’s reliance on Moore v. State, 187 Ga. App. 387 (370 SE2d 511) (1988) is misplaced. In Moore the informant introduced the agent to defendant and was present along with a man known only as “Isaac” at the actual sale of cocaine to the agent. The agent testified that defendant sold the cocaine; however, defendant testified that Isaac sold the cocaine. We held that the informant’s disclosure could be compelled because the informant was “ ‘the only witness in a position to amplify or contradict the testimony’ of the [defendant] and the police officer.” Id. at 391. However, we also noted that if the informant’s identity were sought only for impeachment purposes, disclosure could not be compelled. Id. In light of the independent identification of appellant by the agent and the fact that appellant did not testify in his own defense, the only possible purpose for which appellant sought the informant’s identity was to impeach the agent’s identification of appellant as the person who sold the drugs. See Milsap v. State, 196 Ga. App. 820 (1) (397 SE2d 168) (1990). Therefore, the trial court did not err in refusing to compel the disclosure of the informant.

2. Appellant argues that his character was improperly introduced into evidence on several occasions.

(a) During opening statements, the prosecutor referred to appellant as a “dope dealer.” Appellant objected and moved for a mistrial. The trial judge denied the motion and instructed the jury to disregard the comment. “ ‘ “[T]he trial judge in passing upon a motion for mistrial ... is vested with a broad and sound discretion, and his ruling will not be controlled by this court unless manifestly abused.” (Cit.)’ [Cit.]” Martin v. State, 193 Ga. App. 581, 587 (4) (388 SE2d 420) (1989). We find no abuse in the trial judge’s discretion.

(b) Appellant argues that the trial judge erred in admitting, as part of the State’s similar transaction evidence, the sentence appellant received in that case. The State introduced a certified copy of an indictment which included appellant’s plea of guilty to the charge of selling cocaine and the sentence appellant received. “We share appellant’s concern here that the sentence in a prior offense does not show motive, intent, scheme, and bent of mind; however, appellant must show not only error but harm. [Cits.]” Groble v. State, 192 Ga. App. *801 260 (2) (384 SE2d 281) (1989). While the better practice is to not admit the sentence in a prior offense where a similar transaction is involved, in this case it seems “highly probable” that the admission of the sentence did not contribute to the verdict. See Groble, supra.

(c) Appellant also contends that the trial court erred in not declaring' a mistrial when a witness for the State testified that appellant told him appellant was on probation. Appellant argues that this statement impermissibly placed his character in issue. Even if the statement placed appellant’s character in issue, in light of the admission of the indictment showing the sentence appellant received for the prior offense, we find that no reversible error resulted from the witness’ reference to appellant’s probation.

(d) Appellant argues that the trial court erred in allowing the State’s similar transaction evidence. This evidence, consisting of an undercover agent’s testimony that he was introduced to appellant by a confidential informant and that on one occasion he purchased cocaine from appellant at a location in the same area where appellant was selling drugs in the case being tried.

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Bluebook (online)
420 S.E.2d 656, 204 Ga. App. 799, 92 Fulton County D. Rep. 1374, 1992 Ga. App. LEXIS 991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunt-v-state-gactapp-1992.