CLARK v. THE STATE

Court of Appeals of Georgia1999-01-19No. A98A1943

236 Ga. App. 153510 S.E.2d 907

Summary · law.co

Holding. The judgment of conviction was affirmed. The court held that the officer's testimony regarding the co-defendant's statement was admissible as a co-conspirator's declaration, and declined to review the identification procedure challenge because it was not raised at trial.

LaShun Monte Clark was convicted of selling cocaine following a controlled drug buy conducted by police. An undercover officer purchased rock cocaine from an individual at a vehicle window, the individual fled on foot, and fifteen minutes later the officer identified Clark from a photograph at the police station. Clark was subsequently identified in court by the officer as the person from whom he received the cocaine.

Clark challenged his conviction on two grounds. First, he argued that testimony from a hidden officer who overheard Clark's co-defendant calling out "Shun, hurry up" during the transaction was inadmissible hearsay that could not be used to prove his identity. The court rejected this argument, finding that once the conspiracy was established, statements made by conspirators during the criminal activity were admissible under Georgia law, and the statement bore sufficient reliability. Second, Clark contended that the officer's in-court identification based on a single photograph amounted to impermissibly suggestive identification procedures. The court declined to address this claim because Clark failed to raise it during trial, only bringing it up in his motion for new trial.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Admissibility of co-conspirator statements as exceptions to hearsay rule
Reliability of hearsay evidence for purposes of Sixth Amendment confrontation rights
Waiver of objections to identification procedures by failure to raise them at trial

Procedural posture

Defendant appealed his jury conviction for drug sales pursuant to an out-of-time appeal granted by the trial court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

McMurray, Presiding Judge.

In a special presentment, defendant LaShun Monte Clark and co-indictee Barron Anthony Blackshear were charged with a single violation of the Georgia Controlled Substances Act for selling cocaine. The evidence at defendant’s jury trial revealed that Detective Bobby Young of the Vidalia Police Department supervised a controlled buy of narcotics, with Swainsboro police officer Dennis Mason in plain clothes driving an unmarked van. Hidden in the van were patrolmen Tony Phillips and Joel Williams. On the night in question, Officer Mason “pulled up and approached three males, [and] asked one of them where [he] could find some rock. . . . One of them said, ‘Right here, man.’ And as he approached the window, [Officer Mason] gave him a twenty dollar bill and he dropped the rock cocaine in [the officer’s] hand. At that time [Officer Mason] proceeded to throw the vehicle in park and grab, the subject [ran] from [him], and [Officer Mason] proceeded to chase him on foot. While in the chase, [Officer Mason] identified [him] self as a police officer, and he continued to run. [Fifteen minutes later, Officer Mason] identified this gentleman here[, i.e., defendant, through] a picture [at the] Vidalia Police Department.” Officer Mason expressly identified defendant in court as “the one [the officer] received the cocaine from[, and] the one who took the money.”

The jury found defendant guilty as charged. Pursuant to the grant of an out-of-time appeal, defendant challenges the sufficiency of the evidence as to the identity of the perpetrator. Held:

1. Defendant first contends the trial court erroneously permitted Officer Tony Williams, one of the two patrolmen in the back of the van, to testify he overheard Barron Anthony Blackshear, “right as the drug transaction was taking place [say], ‘Shun, hurry up. It might be the ’trol.’ ” He argues this is hearsay which is not admissible to prove identity, in conjunction with Officer Williams’ knowledge that “Shun ... is what [he, i.e., defendant, is] called on the street.” We disagree.

“After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” OCGA § 24-3-5. Compare OCGA § 24-3-52. “Contrary to defendant’s assertion, [Officer Williams’] testimony as to the [statement] made by [Blackshear] was not inadmissible simply because [Blackshear] was not available for cross-examination. Castell v. State, 250 Ga. 776, 779-780 (301 SE2d 234) (1984). The [statement] contained sufficient indicia of reliability to ensure that defendant’s Sixth Amendment rights were not violated. Id.” Robertson v. State, 268 Ga. 772, 776 (11) (493 SE2d 697). See also Hunter v. State, 179 Ga. App. 368 (347 SE2d 2) (physical precedent).

2. Next, defendant contends Officer Mason’s in-court identification constituted reversible error, arguing it was based on an impermissibly suggestive one-on-one show-up because Officer Mason identified defendant after examining only a single photograph. But defendant raised no objection to this evidence until his second motion for new trial.

Decided January 19, 1999

Reconsideration denied January 29, 1999

D. Duston Tapley, Jr., for appellant.

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellee.

Where an objection to evidence is raised for the first time in a motion for new trial or in this Court, nothing is presented for review. Fitzgerald v. State, 193 Ga. App. 76, 77 (5) (386 SE2d 914). This Court will not consider issues and grounds for objection, even of constitutional magnitude, which were not raised and determined in the trial court. Gee v. State, 210 Ga. App. 60, 61 (3) (435 SE2d 275).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.