Bennett v. the State

FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

November 10, 2015

In the Court of Appeals of Georgia
A15A1007. BENNETT v. THE STATE.

MCMILLIAN, Judge.

Keith Bennett appeals the trial court’s denial of his motion for new trial

following his conviction on October 24, 2013 for trafficking methamphetamine in a

quantity of 200 or more grams, possession of methamphetamine with the intent to

distribute, possession of clonazepam, possession of a firearm during the commission

of a crime, and possession of a gun by a convicted felon. We affirm.

Viewed in the light most favorable to the verdict,1 the evidence showed that on

October 17, 2012, Kenny Pogue drove Bennett and Pogue’s friend, Kelsey Lambert,

in Pogue’s vehicle to a prearranged methamphetamine transaction with Mark Pham.

Pogue subsequently pled guilty to charges arising from this incident, and the State

1
Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
called him as a witness against Bennett at trial. Although Pogue refused to answer

most of the prosecutor’s questions on direct examination, Pogue testified on cross-

examination that Bennett had a gun and drugs when he got into Pogue’s car. He said

that the three individuals in the car combined their drugs into one bag and hid it under

the dash because they were concerned that Pham would rob them of their drugs. He

also said that Bennett rode with him to the meeting with Pham to make sure that

Pogue repaid money he owed to one of Bennett’s friends from a prior drug deal.

The State also introduced evidence of Pogue’s testimony during his guilty plea

hearing. During that testimony, Pogue stated that before the meeting, Bennett,

Lambert, and he combined their supply of drugs into one bag, and Pogue put the bag

under the dash of his car. They then met with one of Bennett’s friends, who put

another bag of drugs under the hood of Pogue’s car. Because Bennett’s friend did not

trust Pogue, Bennett accompanied Pogue to keep an eye on his friend’s drugs and to

make sure that Pogue brought the money back to his friend. Lambert testified that

before arriving at the arranged location, Pogue stopped the car and pulled two guns

out from underneath his seat, handing one gun to Bennett and keeping the other one

himself.

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 Unbeknownst to the three people in the car, Pham was a confidential informant,

who was working with the Hall County Multi-Agency Narcotics Squad to set up a

controlled buy from Pogue. When the three approached the vacant house where the

meeting was to take place and spotted police officers, Pogue and Bennett threw their

guns out of the car windows. The officers subsequently retrieved the two guns, along

with a small bag of pills and a small baggie of methamphetamine from the area where

they had observed items thrown from the car. After Pogue, Bennett, and Lambert

were taken into custody, the officers conducted a search of the vehicle. A bag of

methamphetamine weighing 175.05 grams was discovered under the dashboard of the

car. The officers also found a magnetic box under the car’s hood containing 361.31

grams of methamphetamine, marijuana, oxycodone pills, a set of scales, and a ledger.

Police further discovered $7,500 in cash in the car’s glove compartment.

During a taped interview with the police that was played during the trial,

Bennett admitted that he suspected Pogue was a drug dealer and that he agreed to ride

with him to a vacant house that night to meet a man who owed Pogue money. Bennett

decided to ride with Pogue because Pogue owed money to Bennett’s friend, who had

asked Bennett to make sure nothing happened to Pogue. Bennett accepted a gun from

Pogue in the car, which Pogue described as “insurance.” Bennett suspected that there

3
might be trouble and was scared when Pogue handed him the gun. Bennett denied

actual knowledge that there were drugs in the car. However, when an officer recited

the events of that night, including that Bennett knew that Pogue was a drug dealer,

that Pogue was “probably carrying dope,” and that they were collecting money for a

drug debt, he asked Bennett to tell him if that basically was what happened that night.

Bennett replied, “That is basically what happened,” and he did not correct any portion

of the officer’s recitation.

1. We first address Bennett’s assertions that the trial court impermissibly

allowed unsworn testimony from Pogue and improperly admitted Pogue’s prior

testimony from his guilty plea hearing to impeach him.

When the State called Pogue to the stand, he refused to take the oath and

announced that he would not testify because he did not want to “get stabbed” in

prison for his testimony at trial. In response, Bennett’s trial counsel asked that Pogue

not testify. After the lawyers conferred with the trial judge, the prosecutor tried again

to administer the oath to Pogue. But he again refused, and the prosecutor requested

to proceed with unsworn testimony. The trial court granted the request without

objection from Bennett’s counsel. And trial counsel later cross-examined Pogue,

eliciting further unsworn testimony.

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 (a) Georgia law provides that “[b]efore testifying, every witness shall be

required to declare that he or she will testify truthfully by oath or affirmation

administered in a form calculated to awaken the witness’s conscience and impress the

witness’s mind with the duty to do so.” OCGA § 24-6-603 (a). However, it is well

settled that the failure to object to unsworn testimony waives the issue for appeal. See

Brown v. State, 290 Ga. 321, 322 (4) (720 SE2d 617) (2012); Chapman v. State, 257

Ga. 19, 20 (3) (354 SE2d 149) (1987); Sweeting v. State, 291 Ga. App. 693, 694 (662

SE2d 785) (2008); Hilson v. State, 204 Ga. App. 200, 203 (1) (418 SE2d 784) (1992).

Although Bennett asserts on appeal that his counsel objected to Pogue’s testimony,

the cited portions of the record failed to preserve Bennett’s argument for review by

this Court. After Pogue initially refused to take the oath, Bennett’s attorney stated, “I

ask that he not testify,” without articulating the reason for the request or the grounds

for any objection. Further, he raised no objection at the time the State requested that

Pogue be allowed to provide unsworn testimony. Although Bennett’s attorney

objected on relevance grounds to questioning about Pogue’s being “jumped” while

in prison, Bennett has not cited us to any objection raised by his counsel to the fact

that Pogue gave unsworn testimony. “[I]n order to raise on appeal an impropriety

regarding the admissibility of evidence, the specific ground of objection must be

5
made at the time the evidence is offered, and the failure to do so amounts to a waiver

of that specific ground.” (Citation and punctuation omitted.) Hites v. State, 296 Ga.

528, 530 (2) (769 SE2d 364) (2015).

Accordingly, we find that Bennett waived any objection to Pogue’s unsworn

testimony.

(b) Bennett also argues that the trial court erred in allowing the State to

introduce Pogue’s testimony from his guilty plea hearing. During the State’s direct

examination, the prosecutor asked Pogue about the individual statements he made in

his proffer at the guilty plea hearing, and he responded by stating “I don’t know” or

“I don’t remember” to the State’s questions. He gave similar answers when

questioned about his prior statements to police. However, when Bennett’s trial

counsel cross-examined Pogue about his prior convictions, his prior statements to

police, and the drugs and guns present the day of the crime, Pogue answered his

questions. The trial court later allowed the State to call a victim advocate who was

present at Pogue’s guilty plea hearing to read the transcript of the proffer Pogue made

at that time.

Prior to the enactment of the new Evidence Code,

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 a guilty plea of a joint offender [was] not admissible in evidence at the
trial of another joint offender. This rule [did] not apply where the joint
offender [was] present at trial and [testified] as a witness subject to
cross-examination. Nor [did] it apply where the joint offender’s guilty
plea [was] admitted with instructions that it not be used as evidence of
the defendant’s guilt.

Pinckney v. State, 236 Ga. App. 74, 74-5 (510 SE2d 923) (1999). However, Bennett

was tried in 2013, after the effective date of Georgia’s new Evidence Code. See Ga.

L. 2011, pp. 99, § 101 (new Code applies “to any motion made or hearing or trial

commenced on or after” January 1, 2013). The Pinckney case, upon which Bennett

relies, was decided under former OCGA § 24-3-52,2 236 Ga. App. at 75 (1), which

was repealed with no directly corresponding provision under the new Code. See Ga.

L. 2011, p. 99, § 2 But see Ronald L. Carlson & Michael Scott Carlson, Carlson on

Evidence 504 (3d ed. 2015) (suggesting that OCGA § 24-3-52 may have been

subsumed within OCGA § 24-8-801 (d) (2) (E) regarding the admission of statements

by co-conspirators made in furtherance of a conspiracy).

2
That statute “provided, in toto, that ‘(t)he confession of one joint offender or
conspirator made after the enterprise is ended shall be admissible only against
himself.’” Allen v. State, 296 Ga. 785, 788 (5) (770 SE2d 824) (2015).

7
 We need not determine whether the holding in Pinckney has current application

in this case because Bennett failed to preserve the issue for appeal. When the State

offered the transcript of the guilty plea into evidence as a prior inconsistent statement,

Bennett’s counsel objected to the admission of the transcript on procedural grounds,

and the trial court refused to admit the transcript through Pogue’s testimony. The next

day, the State called the victim advocate who had attended the plea hearing, and, after

argument, the trial court allowed her to read the transcript to the jury. Bennett’s

counsel apparently renewed his objection to the procedure as well as a prior objection

on the grounds that reading the transcript would be “redundant and cumulative” to

Pogue’s cross-examination the previous day.3 Because Bennett’s counsel never raised

any specific objection on the ground of Pogue’s status as a joint offender as described

in Pinckney, he waived the issue for appeal. See Bailey v. State, 273 Ga. 303, 306-07

(4) (540 SE2d 202) (2001).

2. Bennett also argues that the evidence presented at trial was insufficient to

support his convictions because he asserts that only Pogue’s testimony tied him to any

of the drugs found in the car.

3
The argument on this issue took place in the morning before the trial started
for the day and apparently was not taken down by the court reporter.

8
 On appeal, we do not weigh evidence or determine the credibility of the

witnesses. Rather we consider whether, viewed in the light most favorable to the

verdict, the evidence is sufficient for a rational trier of fact to find Bennett guilty of

the crimes of which he was convicted beyond a reasonable doubt. Clark v. State, 296

Ga. 543, 545 (1) (769 SE2d 376) (2015).

Under Georgia’s new Evidence Code, the testimony of a single accomplice is

generally insufficient to support a felony conviction and must be corroborated with

other evidence. OCGA § 24-14-8. This Code section is “virtually identical” to former

OCGA § 24-4-8, and the Federal Rules of Evidence contain no comparable

provision.4 Bradshaw v. State, 296 Ga. 650, 653 (2) (769 SE2d 892) (2015).

Accordingly, “we give the new accomplice provision the same meaning as the old

one.” Id. And Georgia courts have interpreted the accomplice provision to mean that

“sufficient corroborating evidence may be circumstantial, it may be slight, and it need

not of itself be sufficient to warrant a conviction of the crime charged.” (Citation

omitted.) Clark, 296 Ga. at 547 (1). See also Odle v. State, 331 Ga. App. 146, 150

4
In fact, under the federal rules the “‘uncorroborated testimony of an
accomplice is sufficient to support a conviction in the Federal Courts if it is not on
its face incredible or otherwise insubstantial.’ United States v. LeQuire, 943 F.2d
1554, 1562 (11th Cir. 1991).” Bradshaw, 296 Ga. at 654.

9
(770 SE2d 256) (2015) (only slight evidence is required to corroborate an

accomplice’s testimony and the independent corroborating evidence need only justify

an inference that the defendant is guilty). “And whether the State presents sufficient

corroboration of the accomplice’s testimony is peculiarly a matter for the jury to

determine.” (Citation and punctuation omitted.) Hines v. State, 320 Ga. App. 854,

857-58 (1) (740 SE2d 786) (2013).

Moreover,

[e]ven if a person does not directly commit the crime, a person who
intentionally aids or abets in the commission of a crime or intentionally
advises, encourages, hires, counsels or procures another to commit the
crime may be convicted of the crime as a party to the crime. Whether a
person is a party to a crime may be inferred from that person’s presence,
companionship, and conduct before, during and after the crime.

(Citations and punctuation omitted.) Green v. State, 298 Ga. App. 17, 20 (1) (679

SE2d 348) (2009). See also Buruca v. State, 278 Ga. App. 650, 652 (1) (629 SE2d

438) (2006).

In the instant case, Pogue’s testimony incriminating Bennett was corroborated,

inter alia, by evidence that Bennett was arrested as a passenger in a vehicle containing

over 500 grams of methamphetamine, marijuana, clonazepam pills, a digital scale,

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and a large amount of cash in a drug sting operation; by Bennett’s own admissions

that he suspected Pogue was a drug dealer, that he knew Pogue “probably” had drugs

in the car, that he was in the car with Pogue to help him collect a drug debt, and that

he was there to protect Pogue; and by Lambert’s testimony that Bennett accepted a

gun from Pogue and threw it out the window when he saw police. We find that this

and other evidence at trial was sufficient to support Bennett’s convictions beyond a

reasonable doubt. See Green, 298 Ga. App. at 21 (accomplice’s statements was

sufficiently corroborated by evidence that a weapon was located under the

defendant’s feet and a black bag containing drug money was found within arm’s

reach of the defendant).

3. Bennett further asserts that a fatal variance exists between the indictment and

the verdict reached by the jury with regard to the charge of trafficking in

methamphetamine because the trial court charged the jury on trafficking in more than

200 grams of methamphetamine, in addition to charging them on trafficking in more

than 400 grams of methamphetamine, as alleged in the indictment.

(a) Under OCGA § 16-13-31 (e),

[a]ny person who sells, delivers, or brings into this state or has
possession of 28 grams or more of methamphetamine, amphetamine, or

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 any mixture containing either methamphetamine or amphetamine, as
described in Schedule II, in violation of this article commits the felony
offense of trafficking in methamphetamine or amphetamine.

The statute delineates three levels of punishment for trafficking in methamphetamine

depending upon the quantity of methamphetamine involved. “If the quantity of

methamphetamine, amphetamine, or a mixture containing either substance involved

is 28 grams or more, but less than 200 grams, the person shall be sentenced to a

mandatory minimum term of imprisonment of ten years and shall pay a fine of

$200,000.00” under subsection (e) (1). If that quantity “is 200 grams or more, but less

than 400 grams, the person shall be sentenced to a mandatory minimum term of

imprisonment of 15 years and shall pay a fine of $300,000.00” under subsection (e)

(2). And if the quantity “is 400 grams or more, the person shall be sentenced to a

mandatory minimum term of imprisonment of 25 years and shall pay a fine of $1

million” under subsection (e) (3).

Bennett was charged with trafficking by knowingly possessing more than 400

grams of methamphetamine under OCGA § 16-13-31 (e) (3) , and the evidence at trial

showed that methamphetamine was found in Pogue’s vehicle in two places, with

175.05 grams of methamphetamine in a bag under the dash of the car and 361.31

12
grams of methamphetamine in a black box under the hood of the car. During the

charge conference, the State requested that, in addition to charging the jury with the

amount specified under subsection (e) (3) of OCGA § 16-13-31, the trial court also

charged the jury under subsections (e) (1) and (e) (2). Bennett’s counsel did not

object to the charge, but instead replied:

If we do this, . . . we would be giving 400 grams as charged, 28 grams
trafficking, simple possession if they can’t make up their mind, and
while you are at it, to be thorough, I guess over 200, which wouldn’t
make a lot of sense, honestly, but I guess you have to be complete,
because we would say if we are going trafficking only, give us simple
possession. I don’t know if the 200 makes any sense, except for the fact
that the co-defendant pled to 200, so in a sense of fairness, the jury may
decide that that works. And since one bag was over 175 grams, add a
little more, we could be guilty of over 200. A lot of [verdict] form to
give [the jury], but if we are going to go 400 and 28 possession, we
might as well –

The trial judge then interjected, “Yeah, if I’m going to give them one lesser, I guess

I have to give all of the lessers. So then you are okay with that?” Bennett’s counsel

responded, “I don’t love it, but if we’re going to give one, we’ll give them all.” The

jury ultimately convicted Bennett of “trafficking in methamphetamine (200 or more

grams),” in lieu of the other alternative offenses. Bennett argues that this process

13
resulted in a fatal variance between the form of the indictment and his conviction. We

disagree.

Georgia courts do not apply an overly technical analysis to a claim of fatal

variance, but rather focus on the materiality of any discrepancy.

The true inquiry, therefore, is not whether there has been a variance in
proof, but whether there has been such a variance as to affect the
substantial rights of the accused. It is the underlying reasons for the rule
which must be served: 1) the allegations must definitely inform the
accused as to the charges against him so as to enable him to present his
defense and not to be taken by surprise, and 2) the allegations must be
adequate to protect the accused against another prosecution for the same
offense.

(Citation omitted.) Green v. State, 301 Ga. App. 343, 344 (687 SE2d 623) (2009). See

also DePalma v. State, 225 Ga. 465, 469-70 (3) (169 SE2d 801) (1969).

We find that trafficking in methamphetamine in a quantity of 200 or more

grams is a lesser included offense of trafficking in methamphetamine in a quantity of

400 or more grams, because proof of the former is necessarily included in the latter

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(i.e., a defendant cannot possess 400 or more grams without possessing 200 or more

grams).5 And it is well settled that

an indictment not only charges the defendant with the specified crime,
it also embraces all lesser included offenses of the charged offense. An
indictment places an accused on notice that he can be convicted of the
crimes expressly charged as well as lesser crimes that are included in the
charged offenses as a matter of law or fact. Indeed, if an offense is a
lesser included offense as a matter of law or fact, an accused can be
convicted of that offense.

(Citation omitted.) Bryant v. State, 320 Ga. App. 838, 842-43 (3) (740 SE2d 772)

(2013). See also OCGA § 16-1-6 (1) (“An accused may be convicted of a crime

included in a crime charged in the indictment or accusation. A crime is so included

when . . . [i]t is established by proof of the same or less than all the facts . . . than is

required to establish the commission of the crime charged”). Bennett was both

5
Stated another way, under the required evidence test set out in Drinkard v.
Walker, 281 Ga. 211 (636 SE2d 530) (2006), because trafficking in 200 or more
grams does not require proof of any element that trafficking in 400 or more grams
does not also require, the former is a lesser included offense of the latter. See
Jernigan v. State, 333 Ga. App. 339, 343 (3) (775 SE2d 791) (2015) (under the
Drinkard test, court examines “whether each offense requires proof of a fact which
the other does not”) (citation and punctuation omitted; emphasis supplied); Stuart v.
State, 318 Ga. App. 839, 842-43 (734 SE2d 814) (2012) (Drinkard test applies to
determine whether one offense is a lesser included offense of another).

15
charged with and convicted of trafficking in methamphetamine in some amount. The

fact that the jury found him guilty of trafficking in a smaller amount of

methamphetamine than the indictment alleged does not give rise to a fatal variance.

(b) Moreover, to the extent that Bennett is arguing that the trial court’s charge

on trafficking methamphetamine constituted plain error, we find that his counsel

invited any error by agreeing to the charge and thus affirmatively waived appellate

review for plain error. See Hicks v. State, 295 Ga. 268, 275 (2) (759 SE2d 509)

(2014); Shank v. State, 290 Ga. 844, 845 (2) (725 SE2d 246) (2012); Cheddersingh

v. State, 290 Ga. 680, 682-84 (2) (724 SE2d 366) (2012) (Affirmative waiver requires

“deviation from a legal rule must have been intentionally relinquished or

abandoned.”) (citation and punctuation omitted).

Accordingly, we affirm the trial court’s denial of Bennett’s motion for new

trial.

Judgment affirmed. Barnes, P. J., and Ray, J., concur.

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