Ross v. State

Deen, Presiding Judge.

The appellant, Rogers Ross, was tried before a jury and found guilty of two counts of selling cocaine. He appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

1. Appellant enumerates the general grounds. He urges that his convictions are based solely on the uncorroborated testimony of his alleged accomplice, Robert Williams.

The evidence shows that a confidential informant introduced an undercover officer to Williams, the alleged accomplice, on October 30, 1986. The officer asked Williams if he knew a source of cocaine. Williams stated that he did and he agreed to arrange a sale. Williams and the officer drove to the neighborhood where appellant resided. Williams instructed the officer to park in close vicinity to appellant’s house. The officer gave Williams $135 for the purchase of cocaine. Although the officer testified that he saw Williams walk to appellant’s house, he did not actually see Williams enter appellant’s house. After approximately ten minutes, Williams returned to the officer’s vehicle with a bag which contained cocaine. The officer gave Williams $20 for his assistance.

The officer then contacted a local GBI agent and reported these events. The GBI agent and the officer made the decision to attempt to make another purchase of cocaine. On November 6, 1986, the officer contacted Williams and expressed a desire to purchase more cocaine. Williams and the officer again drove to a location in close vicinity to appellant’s house. The officer parked his vehicle and gave Williams $250 for the purchase of cocaine. As Williams proceeded on foot in the direction of appellant’s house, an automobile, which had been parked in front of appellant’s house, started towards Williams. Williams entered the automobile. The automobile proceeded down the street and returned approximately twenty minutes later. Williams exited the automobile and returned to the officer’s vehicle carrying a bag which contained cocaine. The officer gave Williams $20. With regard to the description of the automobile and its occupants, the of*736ficer testified that: “It was a dark-colored car, sir, was all I could tell you. It looked like two or three black males in it. I could not describe the people in it.” The GBI agent, who was conducting surveillance on appellant’s house during the sale, testified that he had seen an older black automobile in the area but could not identify any of its occupants. The GBI agent also testified that the automobile which appellant customarily drives, a silver Mercury Zephyr, had been parked in the yard of appellant’s house at the time of the sale. No evidence as to the ownership of the dark-colored car was introduced at trial.

Williams was himself charged with two counts of selling cocaine and he subsequently negotiated a plea of guilty to one count. At appellant’s trial, Williams testified that he had purchased cocaine from appellant at appellant’s residence on October 31, 1986. Williams also testified that appellant had been in the dark-colored automobile November 6, 1986 and that appellant had sold him cocaine on that occasion.

There is no dispute that the witness actually procured the cocaine for the undercover agent, and that this witness’ separate indictment for the offense of selling cocaine was warranted. The evidence authorized a finding that the supplier and the witness, in procuring the cocaine for the undercover agent for a fee, acted separately and with the intent of furthering only their own individual pecuniary interests. In other words, the evidence could support a finding that two criminal acts occurred, i.e., sale by the supplier to the “middle man” and sale by the “middle man” to the undercover agent, and that no principal/accomplice relationship existed between the supplier and the “middle man,” thus eliminating the requirement of corroboration of the “middle man’s” testimony.

In Milton v. State, 248 Ga. 192, 196 (282 SE2d 90) (1981), the Supreme Court noted that “[t]he fact that a witness was jointly indicted with the defendant on trial does not of itself render such witness an accomplice. [Cit.] In Almand v. State, 149 Ga. 182 (1b) (99 SE 795) (1919), the court held that it was not error to submit to the jury the question of whether a witness for the State was or was not an accomplice even where the witness had confessed to being an accomplice and had been jointly indicted with the defendant on trial. [Cit.]” Under the circumstances of the instant case, the question of whether or not the “middle man” was an accomplice was no less a matter for the jury, and not for this appellate court.

Viewing the evidence in the light most favorable to uphold the verdict, as this court is required to do, we conclude that a rational trier of fact could find the appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant’s remaining enumerations of error also are with*737out merit.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Pope and Benham, JJ., concur. Beasley, J., concurs specially. Carley, C. J. Birdsong and Sognier, JJ., dissent.