Thomas v. State

213 S.E.2d 129, 134 Ga. App. 18, 1975 Ga. App. LEXIS 1891
CourtCourt of Appeals of Georgia
DecidedJanuary 30, 1975
Docket49915
StatusPublished
Cited by12 cases

This text of 213 S.E.2d 129 (Thomas 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
Thomas v. State, 213 S.E.2d 129, 134 Ga. App. 18, 1975 Ga. App. LEXIS 1891 (Ga. Ct. App. 1975).

Opinions

Webb, Judge.

Donald Thomas, known as Don Juan Thomas, Fat Don and Fats, was indicted, tried, convicted and sentenced on three counts charging violation of the Uniform Narcotic Drug Act1 by the unlawful sales of heroin on October 12, October 24, and October 29,1973 in Macon to Agent Charles L. Haywood, of the Georgia Division of Investigation. On the trial Thomas admitted the sale on October 12, but denied the other sales. He contended that he was sitting down with some others at a beer house on Pió Nono, across the street from Handy Andy and close to Package House, just talking, and was [19]*19approached by "A big dude, his name was Freddie. He was with the agent. He asked did anybody know where he could get some drugs from and so everybody around said, 'yeah’ and I told him 'yeah’ too, and I told him if he give me the money I would go and get it for him. The reason I did that he said he was sick and so you know when he gave me the money and I went and got it for him”; that he was given $90, with which he purchased drugs from another person and brought it back and gave it to him.

Agent Haywood testified that on October 12 at the time of the first purchase he was accompanied by Jimmy Moore, who had previously so! d him drugs. "Jimmy Moore agreed to take me to purchase some heroin. We departed this residence and went to the corner of Pió Nono Street and Anthony Street, at the location of Church’s Fried Chicken. The car was parked at this location. We got out of the car and I followed Jimmy Moore to the High Hat Club, which is located adjacent to the Church’s Fried Chicken. Here Jimmy Moore met a subject, whom I heard him call Fats. I heard him whisper in Fats’ ear. Prior to Jimmy Moore talking — while we were walking towards the High Hat Club where Fats was, I gave Jimmy Moore $90 for the purpose of purchasing suspected heroin. He approached the subject, whom I heard him call Fats, and I heard him whisper and I saw him whisper something, and this was followed by Fats taking some glassine bags out of his pocket and counting them off and handing them to Jimmy Moore and then Jimmy Moore gave him the money which he had in his hands. From there we went back to the car and went back to the residence of Jimmy Moore.” Agent Haywood testified Moore took three of the bags for himself and gave six to him. (Other testimony revealed that at the time of this trial Moore himself was in jail on a narcotics charge.)

Haywood further testified that another person, unidentified, accompanied him and Moore to the area near the High Hat Club (Thomas’ beer club) but he remained in the car on the back seat while the car was parked at Church’s Fried Chicken, not far from the beer club. This unidentified person was a confidential informer, known to the agent as Curtis, who rode from Atlanta down to Macon with the agent to advise him in [20]*20the vernacular of those generally using and trafficking in illegal drugs, as well as the approximate going prices. He did not participate in any transaction with Fats Thomas and did not know the accused. Counsel for Donald Thomas asked that Agent Haywood divulge his name, and to describe him, it being the testimony later given by Don Juan Thomas, the accused, that it was to that man that he sold the heroin. The trial court sustained the state’s objection to disclosure of the informer’s name and a description of him. Thomas named the individual to whom he transferred the heroin as "Freddie,” testifying "the agent gave his name - j Curtis but it was his last name. That was the person that was with him all the time.”

Thomas testified that he got out of service in March, 1970; that he was then on heroin and remained so until July, 1971; that he was on acid when he committed a burglary in July, 1971 to which he entered a guilty plea; that he had smoked reefers, taken acid, used pills and drank romatussin; that he got out of prison in November, 1972 on parole; he went back on heroin Thanksgiving Day, 1972, got into trouble in December of 1972, being charged with Affray and Carrying a Pistol Without a License, to which he pleaded guilty and for which he served six months of a twelve-months’ sentence; and that since Labor Day, 1973 he had been off heroin and enrolled in the methadone program. Thomas testified that he is a "Nickel Willie” and defined for the jury a "Nickel Willie” to be "Somebody that is, ah, like a person, a person or something what he ain’t. Something else, like, for instance a person wants some drugs or something like that, you get the drugs for this person and everybody would be thinking that is what you are doing, pushing drugs, like that, it is something what you are not.”

1. The first of two alleged errors enumerated by Don Juan Thomas is that the trial court sustained the state’s objection to the admission of testimony as to the physical description of the anonymous informer, Thomas contending that such information would have helped him "establish the informer’s identity and such identity was necessary and relevant” to his defense of entrapment as to the first sale on October 12, 1973.

[21]*21Ordinarily, one who acts in the capacity of a peace officer or connected therewith will not be required by the courts to bewray the name or identity of his informant concerning the crime for which the accused is being tried. This rule rests upon sound public policy. Anderson v. State, 72 Ga. App. 487, 493 (4) (34 SE2d 110);Pass v. State, 227 Ga. 730, 732 (182 SE2d 779); Welch v. State, 130 Ga. App. 18 (202 SE2d 223); Code § 38-1102; 58 AmJur 300, Witnesses, § 534. To describe the alleged informer so as to help the accused to "establish the informer’s identity” is tantamount to naming him, and comes within the rule enunciated.

There is no contention that the alleged informer was a decoy, as to which there is a vast difference between an informer. Crosby v. State, 90 Ga. App. 63 (82 SE2d 38). Actually, by his own testimony Fats Thomas seems to have known the person he contends was an informer and to whom he says he made the first sale, he having testified that he was known to him as "Freddie” and Curtis was his last name. In the case sub judice, the agent testified that the informer did not get out of the car that was parked at another location from that where the sale was made, did not know the accused, and did not participate in any transaction with Fats Thomas. The informer here was not used as a lure, did not induce Thomas to enter into any transaction, and there is no "decoy” situation here requiring disclosure of his identity and his production for cross examination. Butler v. State, 127 Ga. App. 539, 541 (194 SE2d 261). As the trial judge remarked, "I don’t recall any testimony connecting the informer with any of these arrests,” and even if he had been a witness to the transaction, his testimony was not essential to Thomas’ conviction. Estevez v. State, 130 Ga. App. 215, 216 (2) (202 SE2d 686). No error was committed by refusing to require the state to identify or describe the informer.

2. The second alleged error enumerated by the accused is that the trial court committed harmful, prejudicial and reversible error by failing and refusing to charge the jury on the principle of entrapment, that Donald Thomas could have been entrapped by an agent of the state.

Under Criminal Code § 26-905, the accused must be [22]

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Thomas v. State
213 S.E.2d 129 (Court of Appeals of Georgia, 1975)

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Bluebook (online)
213 S.E.2d 129, 134 Ga. App. 18, 1975 Ga. App. LEXIS 1891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-state-gactapp-1975.