Baines v. The State., 175 Ga. App. 234, 333 S.E.2d 103 (1985)
Linked as:
Summary
Judgment affirmed in Case No. 70145. Judgments affirmed in part and reversed in part in Case Nos. 70143 and 70144. Birdsong, P. J., and Sognier, J., concur.
Summary
Judgment affirmed in Case No. 70145. Judgments affirmed in part and reversed in part in Case Nos. 70143 and 70144. Birdsong, P. J., and Sognier, J., concur.
Text
J. Raymond Bates, Jr., for appellant (case no. 70145).William W. Keith III, for appellant (case no. 70143).
Appellants were tried together before a jury on multi-count indictments. Appellant Beal was found guilty of two counts of theft by receiving stolen property, to wit: one 1981 white Chevrolet Corvette and one 1980 claret Chevrolet Corvette; bribery; and possession of a firearm during the commission of a crime. Appellant Baines was found guilty of one count of theft by receiving stolen property, to wit: a 1980 claret Chevrolet Corvette. The jury returned a guilty verdict against appellant Cochran for the offenses of theft by receiving stolen property, to wit: one 1981 white Chevrolet Corvette; bribery; and, possession of a firearm during the commission of a crime. Appellants appeal from the judgments of conviction entered on the guilty verdicts. Their appeals are consolidated herein for the purpose of clarity.
1. Enumerated as error by all appellants is the denial of their motions to suppress evidence obtained pursuant to a wiretap placed on appellant Beal's telephone.
(a) Appellants' first enumeration concerns the undisputed fact that the warrant was issued by the same superior court judge who had previously notarized an affidavit which was submitted in support of the application for the investigative warrant. Appellants assert that, having notarized the affidavit, the judge was not neutral when he subsequently issued the warrant.
The determination of whether probable cause exists to issue a warrant must be made by a neutral and detached magistrate. This " 'requires severance and disengagement from activities of law enforcement.' [Cits.]" Thomason v. State,
(b) All three appellants next argue that the affidavit submitted in support of the wiretap application failed to demonstrate probable cause. "Probable cause is required for the invasion of a citizen's privacy by authority of a wiretap warrant. [OCGA
The evidence shows that Georgia Bureau of Investigation (GBI) agent Johnson executed an affidavit setting forth his knowledge of a criminal operation involving the theft of motor vehicles. Agent Johnson's information was provided to him by "Informant A," as well as two named investigative police officers who, in turn, received their information from four more informants. Briefly summarized, the information contained in the affidavit was as follows: "Informant A" advised Johnson that appellant Beal and co-indictee Hambright were conducting an ongoing business whereby they stole Corvettes, cut them up, and placed on them valid motor vehicle identification (MVI) numbers obtained from wrecked Corvettes. Appellant Cochran was financing the business. Johnson stated in his affidavit that "Informant A" had provided reliable information in the past which had led to arrests, including the arrest of Hambright for a prior crime of which he was convicted. It was further stated that "Informant B" had given two named police investigators the same detailed information as provided by "Informant A." "Informant C" advised one of the two other officers that appellants Beal and Hambright were conducting a "chop shop" and that he had purchased a stolen vehicle from Hambright.
Johnson was told by "Informant D" that Hambright offered to pay him a certain sum for any stolen Corvette that he could deliver to appellant Beal or to Hambright. "Informant E" disclosed to one of the officers that appellant Beal was switching engines of stolen Corvettes with wrecked Corvettes and selling them, and that appellant Cochran furnished the money to appellant Beal. Moreover, "Informant E" personally knew of thirty-four vehicles that these men had "changed over" from October of 1980 to April of 1983. In June of 1983 "Informant E" also furnished three MVI stickers which he had obtained personally from Corvettes brought to appellant Beal. These numbers were found to have been taken from three Corvettes which had been reported stolen. "Informant E" also advised the investigator of appellant Beal's address and garage phone number, and stated that appellant Beal used this number to order stolen Corvettes. Highly specific information concerning this ongoing criminal operation, particularly details of activities occurring within the prior months, was provided by "Informant E."
The information obtained from the informants, particularly that concerning telephone contacts by appellant Beal with out-of-state purchasers of stolen automobiles or providers of stolen parts, was corroborated by the police through the use of telephone company records. The affidavit stated that all five of the informants were known and had been reliable in the past.
Our review of the evidence reveals that the superior court judge had a substantial basis for concluding that probable cause existed to issue the warrant. Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983). Accordingly, it was not error to deny appellants' motions to suppress the evidence on the ground that there was no probable cause. See generally Tookes v. State, supra at 423 (1); Cox v. State, supra; Little v. State, supra.
(c) Appellants finally attack the validity of the warrant on the ground the application failed to set forth facts and circumstances which supported the necessity of resorting to the wiretap. See Lawson v. State,
2. Appellants Cochran and Baines enumerate as error the denial of their motions to sever the trial of the charges brought against them from the trial of the charges brought against appellant Beal. They assert that the substantial amount of evidence against Beal "spilled over" to them, causing guilt by association. The evidence shows that Beal was the primary operator of the "chop shop." Insofar as the charges against appellant Cochran are concerned, the evidence shows that he and appellant Beal went to Cleveland and purchased a burned chassis. Cochran rebuilt the engine and prepared the chassis for the installation of a body. Appellants Cochran and Beal called one Vaughn and requested that he obtain a white Corvette. Once a 1981 white Chevrolet Corvette was delivered to the garage, Beal and Cochran disassembled the body, removed the MVI stickers, and placed it on the salvaged chassis. This rebuilt 1981 white Corvette was subsequently seized from Cochran. The evidence adduced at trial concerning appellant Baines was as follows: Baines informed appellant Beal that his ex-wife wanted a late model Corvette and asked Beal if he could get one for him. A few days later, Vaughn delivered to the garage a stolen 1980 claret Corvette. Appellant Baines was present while appellant Beal "changed out" the car. Appellant Baines' ex-wife testified that she purchased the Corvette from appellant Baines.
"We find no abuse of discretion under the criteria set out in Cain v. State,
3. Appellants Beal and Cochran enumerate as error the admission into evidence of certain testimony of co-conspirator Curtis. In presenting its case as to the bribery charge against appellants Beal and Cochran, the State called as a witness Deputy Lewallen. Lewallen was allowed to testify as to a conversation he had conducted with Robert Curtis, an alleged co-conspirator who was not a co-defendant. The crux of the conversation was that Curtis would pay Lewallen for any information the officer could provide concerning the investigation of appellants Beal and Cochran. Appellants concede that under OCGA
4. Also enumerated as error by appellants Beal and Cochran is the denial of their respective motions for directed verdict of acquittal as to the single count against each for possession of a firearm during the commission of a crime. See OCGA
As we have held in Division 3, the evidence was sufficient to establish a conspiracy by Curtis and appellants Beal and Cochran to bribe a police officer. The evidence showed that Curtis actually made the arrangements and exchanged money for information with the police officer, while Beal and Cochran waited in the van. Thus, it is clear that any act committed by Curtis in furtherance of the conspiracy to bribe the police officer would, in legal contemplation, be deemed to be the acts of appellants Beal and Cochran. See Ford v. State,
5. Appellant Beal enumerates as error the denial of his motion to sever the counts of the indictment charging him with the offenses of bribery and possession of a firearm during the commission of a crime. In light of our holding in Division 4, we need only address this enumeration insofar as it concerns the charge of bribery. The charge of bribery was based upon a conspiracy by co-indictee Curtis and appellants Beal and Cochran to obtain investigative information concerning the other offenses for which the men were charged.
Offenses may be "joined for trial when they are based (1) 'on the same conduct' or (2) 'on a series of acts connected together' or (3) on a series of acts 'constituting parts of a single scheme or plan.' [Cit.] If offenses are joined for any of these three reasons, the defendant does not have an automatic right of severance; instead, the trial judge may grant severance if it is necessary 'to achieve a fair determination of the defendant's guilt or innocence of each offense.' [Cit.]" Haisman v. State,
We find that the offense of bribery was properly joined for trial with the remaining offenses as all of the offenses were based on a series of acts constituting parts of a single scheme or plan. The bribery offense arose from attempts made by appellants Cochran and Beal to obtain investigative information concerning the other offenses for which they stood trial. The purpose of all of the crimes, with which appellant Beal was charged, was the continued operation of the "chop shop." The trial court did not abuse its discretion in denying appellant Beal's motion to sever the bribery count from the trial of the case on the other counts.
6. During the trial, appellant Beal's former wife, Ms. Couch, testified as a State's witness. During her testimony, she admitted that it was her responsibility in the "chop shop" organization to remove the stickers from the doors of the stolen vehicles when they were brought to the shop to be "changed over." Because Ms. Couch feared Beal, she secretly kept the MVI stickers and a record of the stolen vehicles brought into the shop. One such record was admitted into evidence as State's Exhibit No. 10, which was a piece of notebook paper containing a MVI sticker with certain notations. Ms. Couch testified that the sticker was the one that she removed from the stolen 1981 white Corvette which was changed over and sold to Cochran. She further testified that the vehicle was delivered to the shop on February 24, 1982. The MVI sticker and notes were recorded by Ms. Couch the day that the stolen 1981 Corvette was delivered. As subsequent cars came into the shop, Ms. Couch placed the MVI stickers from those cars on the same page and on different pages of a notebook. On cross-examination, Ms. Couch admitted that the top portion of the notebook paper had been cut off at a line she had previously drawn on the paper, but that it had been GBI agent Johnson, not Ms. Couch, who had cut the paper. Agent Johnson later testified that the top portion of the exhibit contained another MVI sticker taken from another car which was not a subject of the instant case. He had cut the paper to avoid any prejudice to appellants that might occur when the paper was admitted into evidence.
Appellant Cochran maintains that the alteration of the exhibit violated his rights under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). He contends that the omitted portion of the exhibit was exculpatory in that it contained writings which appear to have been made with the same writing instrument by the same person at the same time, thus refuting Ms. Couch's testimony that she had applied the MVI stickers to the papers at different times and as the vehicles were brought into the shop.
However, the record reveals that the top portion of Exhibit No. 10 was made available to Cochran during trial, and was even admitted into evidence. The trial court allowed appellant Cochran to cross-examine Ms. Couch concerning the order of her attachment of the stickers, and the writing instrument used. Agent Johnson was also cross-examined as to his reasons for "tampering" with the exhibit. " '. . . Brady is not violated when the Brady material is available to defendants during trial. [Cits.]' [Cit.] 'Brady does not require pre-trial disclosure of the materials.' [Cit.] . . . Earlier disclosure would not have benefited the defense, and the delayed disclosure did not deprive him of a fair trial. [Cit.]" Castell v. State, supra at 781.
7. Appellant Cochran enumerates as error the trial court's charge on the law of conspiracy. Contrary to appellant's assertion, "even if conspiracy is not alleged in an indictment, a charge upon the subject is not error if the evidence tends to show a conspiracy. [Cits.] The evidence in this case was sufficient to justify a charge on conspiracy." Alexander v. State,
8. Finally, appellant Baines asserts that the trial court erred in sentencing him as a felon under OCGA
In view of the evidence that it was appellant Baines who requested that an automobile be stolen, that he had knowledge of the changing over of the automobile and was present for such, that he purchased the car before it was changed over, and that he was in possession of the vehicle once it was placed on a valid chassis, we find that the evidence was sufficient to authorize the sentencing of appellant Baines under the provisions of OCGA
9. Accordingly, in Case No. 70145, the judgment of conviction is affirmed. In Case Nos. 70143 and 70144, the judgments of conviction are affirmed, except for the convictions of possession of a firearm during the commission of a felony, which are reversed.
J. O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.
1985
Sponsored links
This document cites
- U.S. Supreme Court - Illinois v. Gates, 462 U.S. 213 (1983)
- U.S. Supreme Court - Brady v. Maryland, 373 U.S. 83 (1963)
- Supreme Court of Georgia - COOPER v. THE STATE., 253 Ga. 736, 325 S.E.2.d 137 (1985)
- Supreme Court of Georgia - CASTELL v. THE STATE., 250 Ga. 776, 301 S.E.2.d 234 (1983)
- Supreme Court of Georgia - CRUMPLER v. THE STATE., 249 Ga. 462, 291 S.E.2.d 497 (1982)
See other documents that cite the same legislation
