Scudiere v. State

203 S.E.2d 581, 130 Ga. App. 477, 1973 Ga. App. LEXIS 1350
CourtCourt of Appeals of Georgia
DecidedDecember 4, 1973
Docket48626
StatusPublished
Cited by14 cases

This text of 203 S.E.2d 581 (Scudiere 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
Scudiere v. State, 203 S.E.2d 581, 130 Ga. App. 477, 1973 Ga. App. LEXIS 1350 (Ga. Ct. App. 1973).

Opinions

Hall, Presiding Judge.

Richard Scudiere, Jr., appellant here, sold [478]*478marijuana and LSD to undercover agent H. V. Kronise, a police officer with the Augusta police department. Another undercover agent accompanied Kronise, and one Wallace Moore was with Scudiere at the apartment where the sales were made. Scudiere and Moore were jointly indicted and tried on two counts, one for the sale of marijuana and one for the sale of LSD. Kronise testified at the trial concerning the circumstances of his purchase from Scudiere, whom he identified as the seller. The state also presented the testimony of Steven Carothers, an acquaintance of Scudiere and his cellmate following his arrest on these charges, that in an in-jail conversation with Carothers "He [Scudiere] had said he had sold to a narcotics agent and that he was selling dope.” ... "that he was selling drugs and that he gave Wallace Moore a dollar for gas of the marked money.” The jury acquitted Moore and convicted Scudiere on both counts, from which he brings this appeal.

1. Enumeration 1, concerning the overruling of the new trial motion, raises only points enumerated as error individually and disposed of by this opinion.

2. Enumeration 2 claims error in the trial court’s failure without a request to charge the jury on the weight and credit to be given the testimony of expert witnesses. In the absence of a request, the failure of the court to charge on the subject of expert testimony is not ground for a new trial. Cameron v. State, 111 Ga. App. 691, 692 (143 SE2d 189); Godwin v. Atlantic Coast Line R. Co., 120 Ga. 747 (6) (48 SE 139).

3. As his third claimed error, Scudiere enumerates the trial court’s failure without a request to charge on the subject of admissions and confessions with respect to his remarks to his cellmate Carothers. In the absence of a request to charge no error occurred, whether these remarks be considered a mere admission (Norrell v. State, 116 Ga. App. 479 (2) (157 SE2d 784)), or as a confession (Story v. State, 145 Ga. 43 (2) (88 SE 548); Staggers v. State, 101 Ga. App. 463, 464, 465 (114 SE2d 142); Keen v. State, 43 Ga. App. 331 (3) (158 SE 611); Chapman v. State, 28 Ga. App. 107 (2) (110 SE 332); Washington v. State, 24 Ga. App. 65 (3 a) (100 SE 31)).

4. Fourth, Scudiere enumerates error in the trial court’s allowing Carother’s testimony of his "confession” to be presented to the jury without a voluntariness hearing claimed to be required by Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908); Sims v. Georgia, 389 U. S. 404 (88 SC 523, 19 LE2d 634); and Sims v. [479]*479Georgia, 385 U. S. 538 (87 SC 639, 17 LE2d 593). This contention cannot succeed because not only is there no claim by Scudiere that his statements to Carothers were in any way involuntary, but on this record no colorable claim of involuntariness seems feasible. In Procunier v. Atchley, 400 U. S. 446 (91 SC 485, 27 LE2d 524), the Supreme Court held that accused’s statements concerning the killing, made to an insurance agent visiting him in the jail, who in collaboration with officials tape recorded the conversation, were as a matter of law not involuntary. No hearing on voluntariness is required until some claim of involuntariness is made (Procunier v. Atchley, 400 U. S. p. 451); see Sims v. Georgia, 389 U. S. 404, supra. No such claim is made here, and the only objection to this testimony at the time it was given was that it put Scudiere’s character in issue. "Absent a proper objection and any evidence that the defendant’s in-custody statement was involuntary, the admission of such statement in evidence without a hearing as to its voluntariness was not error.” Watson v. State, 227 Ga. 698 (1) (182 SE2d 446); accord, Fountain v. State, 228 Ga. 306, 309 (185 SE2d 62).

5. Fifth, Scudiere enumerates the admission of the testimony complained of in paragraph four above on the additional ground that over his objection it injected his character in evidence. This testimony was admissible for the reasons stated above, and this fifth enumeration is without merit.

6. The sixth enumeration claims error in the trial court’s failure to charge the jury that they must make an independent determination of the voluntariness of the confession under Jackson v. Denno, supra. Such an instruction is unnecessary where, as discussed above, no evidence of nor claim of involuntariness appears. Jackson v. Denno, on which Scudiere founds his position, does not allow the jury independently to pass on voluntariness, as was pointed out by Mr. Justice Black in his dissenting opinion in Sigler v. Parker, 396 U. S. 482, 484 (90 SC 667, 24 LE2d 672). Nor does Georgia law independent of Jackson v. Denno and its progeny require the jury to pass on voluntariness where there is no claim of involuntariness. See 7 Encyclopedia of Georgia Law, Criminal Law § 523 (1963).

7. The seventh enumeration concerns the court’s failure to grant the mistrial motion when Carothers testified that Scudiere told him "that he had sold drugs” prior to the offense in question. The objection was made that this injected Scudiere’s character in evidence. The State urges that this testimony is admissible to [480]*480show state of mind, course of dealing, or scheme of the accused. Though the point is perhaps not entirely free from doubt, we hold that no error occurred, on the authority of Terry v. State, 36 Ga. App. 305 (136 SE 476), a case involving the scienter with which transactions in contraband were performed, as well as Ledford v. State, 215 Ga. 799, 804 (113 SE2d 628), holding that no error occurred in refusing a mistrial motion where the statement of other crimes was a part of the accused’s confession to the crime charged. See Moore v. State, 221 Ga. 636 (1) (146 SE2d 895); Sligh v. State, 171 Ga. 92, 110 (154 SE 799); Diggs v. State, 90 Ga. App. 853, 858 (84 SE2d 611); Goldberg v. State, 20 Ga. App. 162, 163 (92 SE 957). In any event, here the trial court explicitly instructed the jury to disregard the testimony entirely, cf. Ledford v. State, supra, p. 800. Moreover, Carothers testified to Scudiere’s admission of guilt of the crime charged, and the undercover agent testified to making the purchase from Scudiere. On this record, had error occurred with reference to testimony of earlier drug sales, the same would be harmless.

8. Scudiere enumerates as his eighth error the court’s refusal to grant his mistrial motion subsequent to agent Kronise’s testimony on cross examination that "I did not induce him to commit any crime that he wouldn’t have committed before I came there.” The objection was that this put defendant’s character in issue. The trial judge has large discretion in matters of this type, see Bowen v. State, 123 Ga. App.

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Scudiere v. State
203 S.E.2d 581 (Court of Appeals of Georgia, 1973)

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Bluebook (online)
203 S.E.2d 581, 130 Ga. App. 477, 1973 Ga. App. LEXIS 1350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scudiere-v-state-gactapp-1973.