Vogleson v. State
Vogleson v. State
Opinion of the Court
A jury found Owen Vogleson guilty of trafficking in cocaine and violating the Georgia Controlled Substances Act for possession of cocaine with intent to distribute. His co-defendant negotiated a reduction in sentence in exchange for his testimony against Vogleson. Vogleson claims that the trial court erred by denying him his constitutional right to cross-examine his co-defendant
When he reached the area, Franklin observed the Jeep and was able to confirm the license tag number, the race and gender of the driver and the race of the passenger. The passenger had his seat reclined, making it difficult for Franklin to determine his gender. Franklin eventually was able to determine that the passenger was male. Franklin testified that the driver repeatedly looked into his side view and rear view mirrors and turned around in his seat to watch the vehicles following him. Franklin notified Officers Becker and Frank of his observations and of the Jeep’s location.
Officer Becker located the Jeep, drove behind it and activated his blue lights. When the Jeep stopped, Becker, speaking through his public address system, asked the driver, whom he identified as Wilson, to get out and go to the rear of the vehicle. Wilson complied with that request and with Becker’s request for his driver’s license. Becker asked Wilson if there were any guns in the vehicle, and Wilson said, “yes.” Wilson told Becker that there was a gun under the driver’s seat. After patting Wilson down, Becker went to the driver’s side of the vehicle, looked under the driver’s seat and found a gun and a bag of marijuana. When Wilson acknowledged that the gun and marijuana belonged to him, Becker placed him under arrest.
Becker then approached the passenger, whom he identified as Vogleson, and instructed him to exit the Jeep. After Vogleson exited, Becker asked Officer Frank to conduct an open air search of the vehicle. Frank walked his dog (trained in the detection of narcotics) around the outside of the vehicle. The dog “alerted” on the front driver’s side and the front passenger’s side of the vehicle and again in those areas and the backseat when he entered the vehicle. The officers found two bags containing almost two kilograms of cocaine on the front passenger floorboard and a large amount of marijuana under the backseat.
At trial, Wilson testified to the following. His involvement in the
1. Vogleson claims that the trial court committed reversible error by denying him the right to cross-examine Wilson about the mandatory minimum sentence for trafficking in cocaine. He argues that he was denied his constitutional right to explore Wilson’s bias as a witness.
On direct examination, Wilson admitted that he received a deal from the State in exchange for his testimony in this case, including a recommendation for a reduction in sentence that would require him to serve ten years in prison. On cross-examination, the following transpired:
VOGLESON’S ATTORNEY: And so you are going to plead guilty to a reduced charge of possession with intent to distribute the cocaine?
WILSON: Yes.
VOGLESON’S ATTORNEY: But you want this jury to believe that the cocaine belonged to Mr. Vogleson?
WILSON: That’s who it belonged to. . . .
VOGLESON’S ATTORNEY: By pleading guilty to the possession with intent to distribute you save yourself from getting a mandatory —.
THE COURT: We don’t talk about mandatory sentences. We don’t talk about any of that stuff.
VOGLESON’S ATTORNEY: Okay. You are saving yourself 15 years, aren’t you?
Before Wilson could answer, the trial judge admonished Vogleson’s attorney for disregarding his instruction. Vogleson’s attorney then asked additional questions on other subjects designed to explore Wilson’s bias.
The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” This guarantee applies to both federal and state criminal defendants.
“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.”
Much of Wilson’s deal with the State was revealed on direct examination. But the trial court completely precluded any testimony regarding the sentence Wilson would have received if he had not reached a deal with the State and had been convicted of the crimes for which he was indicted. By doing so, the trial court prevented the jury from considering the most important aspect of Wilson’s deal — how much prison time he was avoiding by agreeing to cooperate with the State.
We think that a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination*559 designed to show a prototypical form of bias on the part of the witness, and thereby “to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.” [Cit.] [Vogleson] has met that burden here: A reasonable jury might have received a significantly different impression of [Wilson’s] credibility had [Vogleson’s] counsel been permitted to pursue his proposed . . . cross-examination.10
Because the trial court denied Vogleson his constitutionally protected right to explore Wilson’s motive, bias and interest in cooperating with the State and testifying against Vogleson, we reverse.
We previously addressed restrictions on cross-examination of an accomplice in Whitlock v. State
In Ross, defense counsel elicited the fact that an accomplice was facing a mandatory sentence of ten years for armed robbery and that by pleading guilty to robbery, he was able to reduce the sentence to seven years.
We recognize the potential conflict between Hernandez on the one hand and Whitlock and Ross on the other. Because Hernandez more fully protects a defendant’s constitutional right of confrontation, we will follow it and disapprove of Whitlock and Ross only to the
The State argues that to the extent Hernandez permits cross-examination regarding mandatory minimum sentences, it conflicts with the Supreme Court of Georgia’s decision in Hodo v. State.
We find Hodo distinguishable. The witness, a drug dealer, was not involved in the crimes being tried and had not been charged with any crime. Requiring such a witness to speculate about possible punishment for crimes with which he might be charged differs from requiring an accomplice to reveal the punishment he would receive if not for his deal with the State.
The dissent takes issue with our reliance on Hernandez to support reversal in this case. Although the issue arose in a different context in Hernandez, we nevertheless held as a basis for reversal that “[flinally, and perhaps most importantly, such cross-examination is proper because it is constitutionally protected.”
2. We now address Vogleson’s challenge to the sufficiency of the evidence. An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia.
Vogleson claims that the only evidence linking him to the cocaine
Judgment reversed.
We affirmed the conviction of his co-defendant. Wilson v. State, 249 Ga. App. 560 (549 SE2d 418) (2001).
Newman v. State, 233 Ga. App. 794 (1) (504 SE2d 476) (1998).
244 Ga. App. 874 (537 SE2d 149) (2000).
Id. at 876-877 (1) (c).
Pointer v. Texas, 380 U. S. 400 (85 SC 1065, 13 LE2d 923) (1965).
Chambers v. Mississippi, 410 U. S. 284, 295 (93 SC 1038, 35 LE2d 297) (1973).
Davis v. Alaska, 415 U. S. 308, 316 (94 SC 1105, 39 LE2d 347) (1974).
Id.
(Citation and punctuation omitted.) Hines v. State, 249 Ga. 257, 260 (2) (290 SE2d 911) (1982).
Delaware v. Van Arsdall, 475 U. S. 673, 680 (106 SC 1431, 89 LE2d 674) (1986).
Hernandez, 244 Ga. App. at 877.
239 Ga. App. 763, 765-766 (2) (521 SE2d 901) (1999).
231 Ga. App. 506, 509 (3) (499 SE2d 351) (1998).
231 Ga. App. at 509 (3).
Id.
272 Ga. 272, 274-275 (4) (528 SE2d 250) (2000).
244 Ga. App. at 876-877 (1) (c).
443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
See id.
Concurring Opinion
concurring and concurring specially.
I fully concur with both the reasoning employed and the result reached by the majority. However, in view of the significance of the constitutional right at stake — the Sixth Amendment right of confrontation — I am compelled to enter the fray to voice my concern with the dissent’s position. (The reference to the dissent refers to Judge Eldridge’s dissent.)
The importance of the Sixth Amendment right to confront witnesses cannot be overstated. The clarity and undeniability of that amendment are firm, and today we reaffirm our commitment to it. Embodied in this constitutional right is the ability to cross-examine one’s accusers. As the United States Supreme Court has made clear, “[t]he opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.”
Here, the dissent states unequivocally that “[t]he injection of [sentencing] in a jury’s deliberation as to guilt or innocence is improper.” Context is key, and the dissent recontextualizes the sce
In two cases this Court has ruled that the trial court did not abuse its discretion in limiting the cross-examination of a State’s witness regarding the minimum or maximum punishment that the witness avoided by striking a deal with the State.
The dissent is evidently troubled by the fact that, in addressing the accomplice’s potential sentence had he not pled guilty, the jury would inadvertently be informed of the possible sentence that the defendant faced as both had been charged with the same crime. Indeed, I acknowledge that tension exists between the defendant’s right to thoroughly cross-examine an accomplice-witness to establish bias and the defendant’s right to a bifurcated trial, in which his punishment is not addressed until his guilt is established.
Even if the bifurcated trial does inure to the State’s benefit, also, I do not believe that such interest justifies abrogating a defendant’s Sixth Amendment right to thoroughly cross-examine the witnesses against him. Rather, I believe that “[t]he State’s policy interest in
Finally, I disagree with the dissent’s contention that any error was harmless. Although Vogleson’s attorney did ask whether the accomplice “saved himself” 15 years by pleading guilty, the trial court did not allow the accomplice to answer the question. Even assuming that the jury could infer that the answer would have been affirmative, I do not believe a defendant should be forced to impeach a crucial witness inferentially. To the contrary, a defendant retains the right to establish the exact nature and extent of any bias on the part of a State’s witness, which includes the ability to delve into the details of the deal reached with the State. To hold otherwise would greatly erode the effectiveness of the fundamental constitutional right of confrontation. Hence, I concur with the majority.
I am authorized to state that Judge Miller joins in this concurrence and special concurrence.
(Punctuation omitted.) Davis v. Alaska, 415 U. S. 308, 316 (94 SC 1105, 39 LE2d 347) (1974).
Id. at 316.
Farley v. State, 225 Ga. App. 687, 696 (484 SE2d 711) (1997) (Ruffin, J., concurring specially).
See Bellamy v. State, 272 Ga. 157, 159 (4) (527 SE2d 867) (2000); Ford v. State, 232 Ga. 511, 518 (14) (207 SE2d 494) (1974); Green v. State, 206 Ga. App. 539, 541 (2) (426 SE2d 65) (1992).
See Whitlock v. State, 239 Ga. App. 763, 765-766 (2) (521 SE2d 901) (1999); Ross v. State, 231 Ga. App. 506, 509 (3) (499 SE2d 351) (1998).
(Emphasis supplied.) Whitlock, supra at 766.
(Punctuation omitted.) Davis, supra at 316.
See OCGA § 17-10-2 (a). See also Ford, supra.
Davis, supra at 320.
Dissenting Opinion
dissenting.
I respectfully dissent because I cannot distinguish the case at bar from our Supreme Court’s decision in Hodo v. State, 272 Ga. 272 (528 SE2d 250) (2000). In Hodo, the witness whom the defendant was not allowed fully to cross-examine, an admitted drug dealer, was not an accomplice but had admitted to criminal conduct on the stand. Id. at 274 (3). In the present case, the witness was an accomplice in the crimes being tried. Nonetheless, both witnesses had large incentives to testify favorably to the state. Hodo held that a defendant’s right of confrontation was not violated by the trial court’s refusal to allow questions about the potential sentence the witness could face because of his criminal conduct. To be sure, the witness in Hodo
The majority in the case at bar may be correct that questions about mandatory minimum sentences for crimes with which the witness is charged, or could be charged, should be permitted. But we must follow Hodo until and unless the Supreme Court reconsiders its holding. Thus I would vote to affirm.
I am authorized to state that Judge Ellington joins in this dissent.
Dissenting Opinion
dissenting.
1. Vogleson did not object to the trial court’s ruling that he was not to go into mandatory minimum sentencing requirements. His only response to the court’s ruling was to state, “Okay,” and then to inform the jury anyway that Damon Wilson had saved himself 15 years by pleading to a lesser offense than trafficking. Vogleson “cannot submit to the ruling or otherwise acquiesce in the holding or response and then complain of the same on appeal; he must stand his ground.”
2. The jury was informed that Vogleson’s co-defendant, Wilson, received ten years to serve pursuant to a plea to a lesser offense than the trafficking for which he was co-indicted. On cross-examination, the trial court ruled only that Vogleson could not bring out the mandatory minimum sentence Wilson would have gotten for trafficking had he not pled: ‘We don’t talk about mandatory sentences. We don’t talk about that stuff.”
Vogleson’s lawyer, however, disregarded the trial court’s ruling and stated before the jury that “You [Wilson] are saving yourself 15 years, aren’t you?” The trial court did not strike the question, but reinforced defense counsel’s assertion by immediately declaring before the jury that counsel had “completely disregarded” the court’s
In fact, the mandatory minimum sentence for trafficking in the indicted amount of cocaine is 25 years.
3. The injection of sentence in a jury’s deliberation as to guilt or innocence is improper.
So too, in this case, Wilson was indicted for the same trafficking offense as Vogleson. Had he not pled guilty to a lesser offense, Wilson was facing the same mandatory minimum sentence for trafficking that Vogleson faced during trial. The single cross-examination question in dispute, while in the guise of an exposé of bias, would have permitted the injection of the specific mandatory sentence for trafficking into the jury’s deliberations of Vogleson’s guilt or innocence of that offense. This is error.
4. Finally, there is no conflict between Hernandez v. State
Hernandez was not an appeal from a criminal conviction with an enumeration of error claiming defendant was denied his constitutional right to a thorough and sifting cross-examination, as in this case. Hernandez was an appeal from the trial court’s denial of a plea in bar of double jeopardy.
The issue in Hernandez was not the scope of the right to cross-examine, as in this case. It was whether a cross-examination question which violated a trial court’s ruling justified the granting of a State’s mistrial motion on the basis of “manifest necessity”: “the manifest necessity for a mistrial can exist alongside less drastic alternatives, so long as the record discloses that the trial court considered alternatives before declaring mistrial.”
And so, in Hernandez, we examined the basis for the State’s mistrial motion as demonstrating a manifest necessity therefor:
During the jury trial, Hernandez cross-examined his co-defendant, Diaz, about Diaz’s prior negotiated plea to a lesser offense and reduced sentence in exchange for State’s testimony. This questioning went without objection. Hernandez then asked Diaz if, by his plea, he had avoided a specific mandatory minimum sentence. The State moved for mistrial specifically based on a violation of OCGA
On appeal of the denial of Hernandez’s subsequent plea in bar, we found no manifest necessity for mistrial. In so doing, we held: (a) that defense counsel’s questioning did not violate OCGA § 17-8-76. “OCGA § 17-8-76 prohibits only argument that a defendant may not serve the full amount of his sentence; it does not prohibit even making argument in this regard concerning a witness”-,
Thus, contrary to the majority’s assertion, we did not hold in Hernandez that a defendant has a “constitutional right” to inject sentencing considerations into the jury’s deliberations and reveal the mandatory minimum sentence an accomplice would have received. Instead, we determined that a cross-examination question as to a mandatory minimum sentence was properly subject to a pretrial motion in limine or, if asked during trial, subject to a corrective instruction, which actions were not taken by the State.
As the single cross-examination question about which Vogleson complains could have been excluded in limine pursuant to Hernandez, it follows that the trial court’s exclusion of such question during the trial of this case does not demonstrate an abuse of discretion: “[t]he trial court. . . retains wide latitude to impose reasonable limits on cross-examination, based on such concerns as the prevention of prejudice and of questioning on subjects that are only marginally relevant.”
In sum, the issue upon which the majority reverses was waived by Vogleson’s failure to object to the trial court’s ruling. Further, the information about which Vogleson complains was put before the jury despite the trial court’s ruling. Finally, under Hernandez, Ross, and Whitlock, the single question about the mandatory sentence Wilson would have received was properly kept out as an injection of punishment for the indicted crime. Thus, reversal of neither judgment nor precedent is warranted.
I am authorized to state that Chief Judge Blackburn and Presiding Judge Andrews join in this dissent.
Wilburn v. State, 199 Ga. App. 667, 669 (2) (405 SE2d 889) (1991). See also Cox v. State, 242 Ga. App. 334, 339 (10) (528 SE2d 871) (2000); James v. Tyler, 215 Ga. App. 479, 480-481 (451 SE2d 506) (1994); Warsham v. State, 200 Ga. App. 322 (2) (408 SE2d 122) (1991).
OCGA § 16-13-31 (a) (1) (C).
See, e.g., King v. State, 273 Ga. 258, 273 (30) (539 SE2d 783) (2000); Goss Bros. Trucking v. Ashley, 228 Ga. App. 354, 356 (492 SE2d 7) (1997); Willett v. State, 223 Ga. App. 866, 868 (1) (479 SE2d 132) (1996).
Copeland v. State, 235 Ga. App. 682, 685 (2) (b) (510 SE2d 124) (1998). See also Sanders v. State, 181 Ga. App. 117, 121-122 (3) (351 SE2d 666) (1986).
Green v. State, 206 Ga. App. 539, 541 (2) (426 SE2d 65) (1992).
Bellamy v. State, 272 Ga. 157, 159 (4) (527 SE2d 867) (2000); Ford v. State, 232 Ga. 511, 518-519 (14) (207 SE2d 494) (1974).
Fletcher v. State, 197 Ga. App. 112, 113 (3) (397 SE2d 605) (1990). See Bellamy v. State, supra at 159.
244 Ga. App. 874 (537 SE2d 149) (2000).
Whitlock v. State, 239 Ga. App. 763, 766 (2) (521 SE2d 901) (1999); Ross v. State, 231 Ga. App. 506, 509 (3) (499 SE2d 351) (1998).
(Citation and punctuation omitted.) Banks v. State, 230 Ga. App. 258, 263, fn. 27 (495 SE2d 877) (1998).
No attorney at law in a criminal case shall argue to or in the presence of the jury that a defendant, if convicted, may not be required to suffer the full penalty imposed by.the court or jury because pardon, parole, or clemency of any nature may be granted by the Governor, the State Board of Pardons and Paroles, or other proper authority vested with the right to grant clemency.
OCGA § 17-8-76 (a).
Hernandez v. State, supra at 875.
(Emphasis in original.) Id. at 876 (1).
(Punctuation omitted.) Id. at 877 (1) (c).
Id.
Id. at 878 (2).
Id. at 878, citing Steele v. State, 181 Ga. App. 695, 696 (1) (353 SE2d 612) (1987) (curative instructions suffice when sentencing issues improperly interjected during trial).
Whitlock v. State, supra at 766 (2).
See Ross v. State, supra at 509 (3). See also Hodo v. State, 272 Ga. 272, 275 (528 SE2d 250) (2000).
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