Tesler v. State

672 S.E.2d 522, 295 Ga. App. 569, 2009 Fulton County D. Rep. 243, 2009 Ga. App. LEXIS 44
CourtCourt of Appeals of Georgia
DecidedJanuary 15, 2009
DocketA08A2190
StatusPublished
Cited by6 cases

This text of 672 S.E.2d 522 (Tesler 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
Tesler v. State, 672 S.E.2d 522, 295 Ga. App. 569, 2009 Fulton County D. Rep. 243, 2009 Ga. App. LEXIS 44 (Ga. Ct. App. 2009).

Opinions

Miller, Chief Judge.

Arthur Tesler was indicted on charges of violating his oath as a public officer (OCGA § 16-10-1) (Count 1); making false statements to a state or local government agency or department (OCGA § 16-10-20) (Count 2); and false imprisonment under color of law (OCGA § 16-5-42) (Count 3). A jury convicted Tesler of Count 2 of the indictment, making false statements to a state or local government agency or department, but acquitted him of all other charges. Tesler now appeals his conviction, asserting: (1) that the State failed to prove venue as to Count 2 of the indictment; and (2) that the evidence was insufficient to sustain his conviction, because he made the false statements at issue to federal, rather than state or local, law enforcement authorities. Finding that the State failed to prove venue, we reverse.

Viewed in the light most favorable to the jury’s verdict (Drammeh v. State, 285 Ga. App. 545, 546 (1) (646 SE2d 742) (2007)), the record shows that in November 2006, Tesler worked as an investigator in the Narcotics Unit of the City of Atlanta Police Department (the “APD”). Tesler frequently partnered with two other narcotics investigators in his unit, Gregg Junnier and J. R. Smith. On November 21, 2006, Tesler, Junnier, and Smith arrested Fabian Sheats for possession of cocaine and marijuana with intent to distribute. This arrest was the third time in an approximately seven-month period that Sheats had been charged with a cocaine-related crime. The officers told Sheats that this was his “third strike” arrest, but stated that if he would provide them with information about the person supplying him with drugs, they would release him without charging him for his most recent offense.

Sheats eventually told the officers that he had purchased his drugs earlier that day from a man known as “Sam,” who had an entire kilo of cocaine at his house. The officers asked Sheats to make a “controlled buy” of additional cocaine from “Sam,” so that they could confirm his information. Sheats refused, saying that he was too afraid of Sam. Junnier then called Alex White, a confidential informant frequently used by the APD, to see if he would make the controlled buy. White was willing to make the purchase, but explained that he did not have a car.

The officers drove back to the police station with Sheats, and in the car discussed the fact that, given the large quantity of cocaine at [570]*570issue, they should not do a “knock and talk” at Sam’s residence, but instead should get a search warrant for the house. Neither Tesler nor Junnier, however, was willing to apply for a warrant without witnessing a controlled buy from the house. After Smith indicated that he was willing to apply for a warrant without witnessing a controlled buy, the men had Sheats direct them to Sam’s house. Riding with the officers in their patrol car, Sheats guided them to a house at 933 Neal Street in southwest Atlanta, and claimed that he had purchased the cocaine at that residence.

The group drove back to the police station, where Smith exited the car, went inside and filled out an electronic application for a “no-knock” search warrant,1 returning to the police car approximately 30 minutes later with the warrant in hand. In the affidavit he submitted in support of the search warrant, Smith stated, inter alia, that he and Tesler had witnessed a confidential informant make a controlled buy of cocaine at 933 Neal Street, from an individual known as “Sam.” Smith also averred that a “no-knock” warrant was necessary because the house was equipped with electronic surveillance devices.

After Smith obtained the warrant, the three officers met up with other members of the Narcotics Unit to execute it. Because it was a no-knock warrant, police executed it by breaking down the front door of the Neal Street residence with a battering ram. Junnier then entered through the front door shouting “Atlanta Police, search warrant!” He was met by a “flash of light” and saw what he thought was a black male standing inside the house with a gun. Junnier returned fire as he fell backward, down the front steps, and other officers also began shooting. Wounded in the gunfire were several police officers and the lone occupant of the house, 92-year-old Kathryn Johnston. Ms. Johnston later died of a gunshot wound to the chest. Ms. Johnston’s wounds and those sustained by police officers all resulted from bullets fired from police weapons.2 The only contraband discovered at Ms. Johnston’s residence was a small amount of marijuana, which Smith had planted at the scene after he realized that the Neal Street residence was not, in fact, a drug house.

Shortly after the raid on Ms. Johnston’s home, Smith called Alex White “in a panic,” explaining that he had “screwed up,” and asking White to lie to investigators and tell them that he had made a controlled drug buy earlier that day from a black male named Sam at [571]*571933 Neal Street. White agreed to lie, and took notes on the details Smith provided him of the alleged transaction.3

Later that same evening, Tesler went to the hospital to check on the wounded officers. There he saw Smith, who told Tesler that he was mentioned in the warrant, and that Tesler therefore “might be in trouble.” Smith explained that when filling out the electronic application for the Neal Street warrant, he had “cut and pasted” information from a previous application that had contained Tester’s name, and that he had failed to delete Tester’s name before submitting the application.

The following day, Tesler reported to APD headquarters to give a statement to the Homicide Division regarding the issuance and execution of the Neal Street warrant. After he arrived at headquarters, Smith pulled Tesler aside, showed him a copy of the warrant, and told Tesler to “get familiar with it[, because] you’re in it.” Smith then explained to Tesler the “story” regarding the warrant that Smith was going to give to the Homicide Division, and told Tesler “to stick with [the story].” Smith’s “story” essentially mirrored the facts set forth in his affidavit in support of the warrant. Specifically, Smith instructed Tesler to tell Homicide that Tesler and Smith were driven by Alex White to 933 Neal Street, where they witnessed WThite exit the car, approach the house, and buy drugs. White then returned to his car and drove Tesler and Smith back to their patrol car. Smith showed Tesler a diagram he had drawn that showed the location where they allegedly met with White to drive to 933 Neal Street, and showed where and in what position the officers and White had parked their respective cars.

Later that day, before Tesler gave his statement to Homicide, he spoke with Junnier by cell phone, and Junnier instructed him to call Alex White and get details on White’s car, such as the exact make and model. Junnier further told Tesler to “stick with the story” provided to him by Smith. Although Tesler called Wdiite to obtain the details about his car prior to giving his statement to Homicide, Homicide did not question him about the events giving probable cause for the warrant. Tesler was the last one to give his statement, and Homicide questioned him only about his role in executing the warrant.

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Tesler v. State
672 S.E.2d 522 (Court of Appeals of Georgia, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
672 S.E.2d 522, 295 Ga. App. 569, 2009 Fulton County D. Rep. 243, 2009 Ga. App. LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tesler-v-state-gactapp-2009.