Ross v. State

Beasley, Judge,

concurring specially.

I concur in affirmance but on a different basis than registered by my brethren.

I agree with the dissent to the extent that there was evidence from which the jury could find that Williams was defendant’s accomplice. The majority opinion points out that it is a jury question, citing Almand v. State, 149 Ga. 182 (1b) (99 SE 795) (1919). While there may be circumstances from which the status of accomplice may arise as a matter of law, the court in this case left the question to the jury to determine as a matter of fact. It instructed: “Now, as to whether or not any witness in this case was an accomplice is a question for you to determine from the evidence in the case.”

Some of the evidence which would support such a finding was that Williams participated in the sale of cocaine by defendant to the undercover officer who initiated it, by taking him to his source and exchanging money supplied by the agent for cocaine, which Williams then directly delivered to him, receiving some monetary compensation for his service as a procurer.

Like defendant, he was indicted for the sale of cocaine on the two occasions, which obviously meant the sale to the officer and not the narrow part of the transaction wherein he exchanged government money for the cocaine the agent was buying from Williams’ source. The jury had that indictment as evidence. Although the State argued that defendant was charged with the sale of cocaine to Williams, the indictment does not allege to whom the sale was made, and the evidence focused on the sale to the officer. The undercover agent referred to Williams as the “mule,” “runner,” “in-between man.” Thus the jury was authorized to consider defendant’s guilt as it related to the sale of cocaine to the officer, in which context Williams was a party participating as a conduit between, as the agent testified, the “supplier” and the “buyer.” OCGA § 16-2-20.

If the jury found that Williams was an accomplice, it was obliged, as the court correctly instructed it, to acquit defendant unless Williams’ testimony connecting defendant with the crime of the sale of cocaine was corroborated. That is, Williams’ testimony and particularly his identification of defendant as the person with whom the exchange of the money for cocaine occurred could not be the sole evidence of defendant’s participation in the transaction. West v. State, 232 Ga. 861, 864 (2) (209 SE2d 195) (1974). As quoted by the dissent, there must be evidence of this fact “independent of the accomplice’s *738testimony.” Milton v. State, 248 Ga. 192, 196 (282 SE2d 90) (1981). This stems from OCGA § 24-4-8.

That corroborating evidence need only be slight, however, as the trial court accurately charged the jury. Inman v. State, 182 Ga. App. 209 (355 SE2d 119) (1987). Of course, it must be more than such as merely casts on defendant a grave suspicion of guilt. Hill v. State, 236 Ga. 831, 834 (225 SE2d 281) (1976). The slight corroborating evidence of participation plus the accomplice’s testimony must then constitute, under the rule of, as required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), sufficient evidence upon which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.

As to the corroborating evidence, “[t]he quantum of testimony and its sufficiency to corroborate the testimony of an accomplice before a jury is a matter addressed entirely to the jury itself.” Brown v. State, 163 Ga. 684, 691 (137 SE 31) (1927).

Here there was evidence that defendant had pled guilty to possession of cocaine found in his car just two years earlier and for which he was serving probation at the time of the offenses on trial. The earlier incident also involved an aborted sale through another person. Its particulars connected defendant with the current similar crimes by showing modus operandi as well as identity “so as to lead to an inference of guilt,” and thus differs from the fact pattern in Perryman v. State, 63 Ga. App. 825, 827 (12 SE2d 392) (1940).

On the two occasions on trial, the officer was taken to defendant’s residence for the sole purpose of purchasing cocaine, by an unsuspecting procurer, Williams. On the first trip, the house was pointed out by Williams. The agent saw Williams go up to it with the agent’s money and, although he did not see Williams actually enter, he saw him at the entrance and later come out. Williams came directly to the car, with cocaine. One officer knew this to be defendant’s residence from the offense two years earlier. On the second trip about a week later on November 6, a car known to be defendant’s from that prior offense was parked in the yard. A car was parked right in front of defendant’s house and the two occupants picked Williams up as he walked to the house. When he returned to the officer, he brought cocaine.

These facts “add to the testimony of the accomplice,” in the words of Childers v. State, 52 Ga. 106, 113 (1874). They, and the reasonable inferences which the jury was permitted to draw, OCGA § 24-4-9 and Johnson v. State, 148 Ga. App. 702, 703 (1) (252 SE2d 205) (1979), constitute at least that slight evidence which authorized the jury to consider it independently supportive of Williams’ direct testimony identifying defendant as the source of the cocaine sold, so that the evidence in its totality supports the jury’s verdict and the judgment of the court based thereon.