Mitchell v. State

281 S.E.2d 260, 158 Ga. App. 628, 1981 Ga. App. LEXIS 2345

Opinions

Pope, Judge.

Defendant was indicted for the offense of violation of the Georgia Controlled Substances Act in the sale of marijuana. At his trial he asserted the affirmative defense of entrapment. He was convicted and sentenced to serve a term of five years imprisonment. Defendant then filed a motion for new trial which was later amended and denied after a hearing. The defendant appeals. Held:

1. The substance of the evidence by the state and the defendant is somewhat similar in many instances, although there are many differences in the testimony. An undercover agent was brought into the county for the purpose of buying marijuana. This witness testified he approached the defendant because the agent witness and another had “made an undercover drug buy” from the defendant’s brother. At the residence of the brother and the defendant he asked the defendant where the brother was that night and finding that he was out of town asked the defendant if he knew of a location where he could purchase a quantity of marijuana. He and the defendant then proceeded to another location in the defendant’s car allegedly to obtain a quantity of marijuana. Other persons with the undercover agent witness followed him and the defendant in another automobile. At another residence some distance from the defendant’s residence defendant advised, “the subject is nervous to strangers,” hence it would be best for the undercover agent witness to give him the money and for him to go in and get the marijuana and for this witness to return to the residence and wait for him to return with the marijuana. The price as quoted by the defendant was given to the defendant. The undercover agent witness returned to the residence, and upon the defendant’s return he removed from an army field jacket (upper right pocket, “with his right hand”) and gave the undercover agent witness “a green leafy material contained in a clear plastic bag” at which time the witness testified the transaction was complete.

The defendant on direct examination denied that he sold the marijuana but that this undercover agent witness, whom he knew as Nathan or Nate, had requested him to buy him some beer which he did and then asked “for some marijuana, reefer,” but that he did not know where he could “find a reefer.” But in riding around with him and approaching a crowd of people the agent requested him to ask these people if they knew where he could find some marijuana, and “we ask them about the marijuana. So, one of the dudes said, ‘Yes, I have got some marijuana,’ said ‘It’s going to cost you $35.00,’ Nathan gave me $35.00... He gives me the $35.00.1 give the $35.00 to the man. The man give me the bag of reefers. I give the reefers to Nathan.”

In consideration of the general grounds of the motion for new trial, the admission of the defendant as to the purchase of the marijuana, the non-acceptance of the defense of entrapment by the jury’s not returning a not guilty verdict, as well as a careful review of the entire record and transcript, causes us to find and hold that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of the guilt of the defendant beyond a reasonable doubt as to the sale of marijuana in violation of the Georgia Controlled Substances Act. The general grounds of the motion for new trial are not meritorious. See Driggers v. State, 244 Ga. 160, 161 (1) (259 SE2d 133); Moses v. State, 245 Ga. 180, 181 (1) (263 SE2d 916); Sanders v. State, 246 Ga. 42 (1) (268 SE2d 628).

2. Defendant enumerates as error the admission of evidence relating to his prior conviction for marijuana possession. His objection is based upon Code Ann. § 38-415 which states that no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.

The transcript of the case sub judice indicates that on direct examination the defendant was giving a narrative of the various activities in which he and an undercover police officer had participated. The defendant testified that on several occasions the undercover officer had asked the defendant if he knew where to obtain some marijuana. The defendant stated, “I would always say, ‘Naw, I don’t know where you can get no marijuana, I just don’t know where you can get none. I don’t mess with it. I don’t know where you can get any marijuana.’ ”

On cross examination the district attorney asked the defendant, “Now, Mr. Mitchell, you made the statement to the question by your lawyer, Mr. Fears, that you didn’t sell any marijuana and that you didn’t fool with it, is that right?” The defendant answered, “Yes, sir.” The district attorney questioned further stating, “You don’t fool with marijuana?” The defendant responded, “No, sir.” The district attorney attempted to ask another question stating, “You never have in your life?” At that point the defendant's attorney made his objection.

The trial court allowed the introduction of evidence of defendant’s prior conviction for marijuana possession for the limited purpose of contradicting the defendant’s testimony. Assuming that defendant’s statement was not sufficient to place his character in issue because he was repeating a statement made to a third party and not directly responding to an attorney’s question (compare Murray v. State, 157 Ga. App. 596 (278 SE2d 2) (1981)), the defendant may still be impeached by contradictory statements. This court has held that “while a criminal defendant is not subject to impeachment by proof of general bad character or prior convictions until he puts his general good character in evidence, he is subject to impeachment the same as any other witness.” Favors v. State, 145 Ga. App. 864, 865 (244 SE2d 902) (1978). Code Ann. § 38-1802 provides that a witness may be impeached by disproving the facts testified to by him. Certainly the defendant’s statement that he did not “mess” with marijuana, made on direct examination, and his response of “No, sir” when asked the question “You don’t fool with marijuana?” on cross examination could be construed as a denial by defendant that he had ever been involved in any offenses involving marijuana.

We therefore uphold the trial court’s admission of the evidence of his prior conviction of marijuana possession in order for the jury to decide if his credibility was impeached.

3. The remaining enumerations of error deal with written requests to charge with reference to the presumption of innocence, reasonable doubt and affirmative defense of entrapment. The substance of the requests was amply covered in the charge as given, and the trial court did not err in refusing to give the verbatim requests even if such requests were essential amplification of the standard instruction as to the requirement of proof beyond a reasonable doubt and were correct statements of applicable law. No longer is the court required to give the exact verbatim written request, provided the charge covers the general principles of law which the jury must consider in reaching a correct conclusion upon questions submitted for consideration with or without requests. Crowder v. State, 233 Ga. 789, 792 (10) (213 SE2d 620); Leutner v. State, 235 Ga. 77, 81 (5) (218 SE2d 820); Crawford v. State, 236 Ga. 491, 493 (224 SE2d 365); McClendon v. State, 231 Ga. 47, 48 (4) (199 SE2d 904).

Decided April 30, 1981— Rehearing denied May 26, 1981 Alfred D. Fears, William P. Bartles, for appellant. E. Byron Smith, District Attorney, W. Hal Craig, Assistant District Attorney, for appellee.

Judgment affirmed.

Quillian, C. J., Deen, P. J., Shulman, P. J., Banke, Birdsong, Carley and Sognier, JJ., concur. McMurray, P. J., dissents.