Vogleson v. State

552 S.E.2d 513, 250 Ga. App. 555, 2001 Fulton County D. Rep. 2370, 2001 Ga. App. LEXIS 822
CourtCourt of Appeals of Georgia
DecidedJuly 13, 2001
DocketA01A0485
StatusPublished
Cited by17 cases

This text of 552 S.E.2d 513 (Vogleson 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
Vogleson v. State, 552 S.E.2d 513, 250 Ga. App. 555, 2001 Fulton County D. Rep. 2370, 2001 Ga. App. LEXIS 822 (Ga. Ct. App. 2001).

Opinions

Phipps, Judge.

A jury found Owen Vogleson guilty of trafficking in cocaine and violating the Georgia Controlled Substances Act for possession of cocaine with intent to distribute. His co-defendant negotiated a reduction in sentence in exchange for his testimony against Vogleson. Vogleson claims that the trial court erred by denying him his constitutional right to cross-examine his co-defendant1 about the mandatory minimum sentence the co-defendant was facing before he agreed to testify against Vogleson. He also claims that the only evidence linking him to the crimes was the uncorroborated testimony of his co-defendant, which was insufficient to support his convictions. Although we find that the evidence was sufficient to support Vogleson’s convictions, we reverse because we find that the trial court erred by limiting Vogleson’s cross-examination of his co-defendant.

[556]*556On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence.2 Viewed in that light, the evidence shows that on April 26, 1999, DeKalb County Police Detective Franklin received a tip from a confidential informant that a white Jeep Cherokee, license tag number 324 JLC, could be found immediately in the area of Redan Road and Covington Highway and that the Jeep would be carrying a large amount of illegal drugs. The informant told Franklin that the Jeep would be occupied by two black males. When he received the tip, Franklin notified uniformed officers Becker and Frank that he would be moving into the area.

When he reached the area, Franklin observed the Jeep and was able to confirm the license tag number, the race and gender of the driver and the race of the passenger. The passenger had his seat reclined, making it difficult for Franklin to determine his gender. Franklin eventually was able to determine that the passenger was male. Franklin testified that the driver repeatedly looked into his side view and rear view mirrors and turned around in his seat to watch the vehicles following him. Franklin notified Officers Becker and Frank of his observations and of the Jeep’s location.

Officer Becker located the Jeep, drove behind it and activated his blue lights. When the Jeep stopped, Becker, speaking through his public address system, asked the driver, whom he identified as Wilson, to get out and go to the rear of the vehicle. Wilson complied with that request and with Becker’s request for his driver’s license. Becker asked Wilson if there were any guns in the vehicle, and Wilson said, “yes.” Wilson told Becker that there was a gun under the driver’s seat. After patting Wilson down, Becker went to the driver’s side of the vehicle, looked under the driver’s seat and found a gun and a bag of marijuana. When Wilson acknowledged that the gun and marijuana belonged to him, Becker placed him under arrest.

Becker then approached the passenger, whom he identified as Vogleson, and instructed him to exit the Jeep. After Vogleson exited, Becker asked Officer Frank to conduct an open air search of the vehicle. Frank walked his dog (trained in the detection of narcotics) around the outside of the vehicle. The dog “alerted” on the front driver’s side and the front passenger’s side of the vehicle and again in those areas and the backseat when he entered the vehicle. The officers found two bags containing almost two kilograms of cocaine on the front passenger floorboard and a large amount of marijuana under the backseat.

At trial, Wilson testified to the following. His involvement in the [557]*557buying and selling of cocaine was limited to connecting suppliers with potential purchasers, thereby earning a “finder’s fee.” Vogleson had cocaine he needed to sell, and a friend (the informant) had told Wilson he was interested in buying up to five kilograms. On April 26, 1999, Wilson and Vogleson met to sell the cocaine. At Vogleson’s suggestion, they went to a restaurant on Covington Highway to get something to eat. Vogleson went into the restaurant and talked to someone who had entered the restaurant carrying a box. When Vogleson exited the restaurant, he was carrying a white plastic grocery bag, which contained food and two kilograms of cocaine. In the car, Vogleson gave Wilson the food, showed him the cocaine and placed the bag containing the cocaine under his leg. They then left the restaurant and headed in the direction of Wilson’s friend’s house to sell him the cocaine.

1. Vogleson claims that the trial court committed reversible error by denying him the right to cross-examine Wilson about the mandatory minimum sentence for trafficking in cocaine. He argues that he was denied his constitutional right to explore Wilson’s bias as a witness.

On direct examination, Wilson admitted that he received a deal from the State in exchange for his testimony in this case, including a recommendation for a reduction in sentence that would require him to serve ten years in prison. On cross-examination, the following transpired:

VOGLESON’S ATTORNEY: And so you are going to plead guilty to a reduced charge of possession with intent to distribute the cocaine?
WILSON: Yes.
VOGLESON’S ATTORNEY: But you want this jury to believe that the cocaine belonged to Mr. Vogleson?
WILSON: That’s who it belonged to. . . .
VOGLESON’S ATTORNEY: By pleading guilty to the possession with intent to distribute you save yourself from getting a mandatory —.
THE COURT: We don’t talk about mandatory sentences. We don’t talk about any of that stuff.
VOGLESON’S ATTORNEY: Okay. You are saving yourself 15 years, aren’t you?

Before Wilson could answer, the trial judge admonished Vogleson’s attorney for disregarding his instruction. Vogleson’s attorney then asked additional questions on other subjects designed to explore Wilson’s bias.

[558]*558Vogleson argues that Hernandez v. State3 requires reversal. In Hernandez, we held that cross-examination of an accomplice regarding the deal he had made with the prosecution, including the potential sentence he could receive and the fact that he would not be eligible for parole, was constitutionally protected because it sought to show the witness’s motive, bias or interest in cooperating with the State and testifying against Hernandez.4 The fact that he faced a sentence without eligibility for parole, or a mandatory minimum sentence, gave him much more incentive to give favorable testimony.

The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” This guarantee applies to both federal and state criminal defendants.5 Implicit in the constitutional right of confrontation is the right of cross-examination, which is an essential and fundamental requirement for a fair trial.6

“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.”7

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Bluebook (online)
552 S.E.2d 513, 250 Ga. App. 555, 2001 Fulton County D. Rep. 2370, 2001 Ga. App. LEXIS 822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vogleson-v-state-gactapp-2001.