D'ANGELO v. State

479 S.E.2d 384 (1996)

223 Ga. App. 558

D'ANGELO v. The STATE.

No. A96A2207.

Court of Appeals of Georgia.

November 14, 1996.

Joseph A. Bazemore, Sylvania, for appellant.

R.J. Martin III, District Attorney, Martha-Ann C. Kirkland, Assistant District Attorney, for appellee.

BLACKBURN, Judge.

A Screven County jury convicted Campanello D'Angelo of possession of cocaine. OCGA § 16-13-30(b). In this appeal, he claims the trial court erred by denying his motion to suppress and by rejecting his motion for mistrial, which was based on remarks the prosecutor made in her opening statement. As his arguments are without merit, the judgment is affirmed.

1. D'Angelo moved to suppress the cocaine officers found in his possession, and the court held an evidentiary hearing on that motion. However, nothing in the record indicates the trial court ruled on the motion, and this evidence was admitted without objection. Therefore, on appeal we presume the trial court denied the motion and address D'Angelo's argument that officers had insufficient reason to stop him or to search him.[1] "On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgment made." (Punctuation omitted). Beck v. State, 216 Ga.App. 532, 534(1), 455 S.E.2d 110 (1995).

Thus construed, the evidence showed that Sylvania Police Officer McKinney received a late-night call from an informant he considered very reliable. This informant, whose information had led to three arrests and seizures of contraband in the previous six months, told Officer McKinney that he had just seen D'Angelo in possession of cocaine. *385 According to the informant, McKinney would find D'Angelo at a specified residence but that he would be leaving that residence to go to a nearby mill to catch a ride home. McKinney was already familiar with D'Angelo, and he went with another officer, Lairscy, to the residence. From a hiding place, McKinney saw D'Angelo enter the house. A few minutes later D'Angelo left on foot, calling to someone in the house that he "had to get to [the mill] and catch his ride." According to the officer, the mill was a few blocks away.

McKinney radioed Lairscy, who pulled her patrol car beside D'Angelo, called his name, and asked him to stop. He would not, nor would he comply with her request to put his hands where she could see them, and he kept walking towards the rear of her car. As Officer McKinney approached on foot and reached to restrain D'Angelo, the defendant threw a paper bag he was carrying into the ditch. A bottle came out of the bag. The officer picked it up and found what was later shown to be cocaine.

At a minimum, the information upon which these officers acted was sufficient to create a reasonable, articulable basis for stopping D'Angelo. Officer McKinney's testimony showed the confidential informant had given reliable information on several occasions, and the officer saw and heard for himself that the informant could accurately predict D'Angelo's activities that evening. See Stanley v. State, 213 Ga.App. 95, 96, 443 S.E.2d 633 (1994) (tip which is sufficiently detailed to predict suspect's future behavior may create reasonable suspicion to support an investigatory stop where officer can corroborate informant's predictions). As in McFadden v. State, 218 Ga.App. 327, 328(1), 461 S.E.2d 542 (1995), this information gave officers the right to momentarily detain and question D'Angelo based on a "fair probability" that he was carrying cocaine. D'Angelo's refusal to comply with Officer Lairscy's requests could be construed as an attempt to leave the scene, adding another basis for the officers' suspicions. See State v. Smalls, 203 Ga.App. 283, 286(2), 416 S.E.2d 531 (1992) (suspect's attempt slowly to leave the scene was assessable as flight). Furthermore, because D'Angelo threw away the bag containing the cocaine when Officer McKinney approached him, the trial court was authorized to find that the cocaine was not seized as the result of a search but was instead abandoned before D'Angelo submitted to the officer's request to stop. See Anderson v. State, 209 Ga.App. 676, 677, 434 S.E.2d 122 (1993); accord Smith v. State, 217 Ga.App. 680(2), 458 S.E.2d 704 (1995). Additionally, on facts similar to those at hand, this Court has found not only grounds for momentary detention, but also probable cause to search. Pittman v. State, 208 Ga.App. 211, 219(7), 430 S.E.2d 141 (1993). Therefore, the trial court did not err in refusing to suppress the cocaine.

2. Neither did the trial court err by failing to grant a mistrial when the prosecutor, in her opening statement, referred to the "drug problem" in America and said D'Angelo was part of that problem. Without any objection, the trial court instructed the State to discuss only the evidence to be presented and not to argue. The court denied D'Angelo's subsequent motion for mistrial and told the jury to disregard the comments. Even if the prosecutor's statement constituted error, D'Angelo failed to preserve the issue because he did not thereafter renew his motion for mistrial or request further curative instructions. See Tidwell v. State, 219 Ga.App. 233, 237(4), 464 S.E.2d 834 (1995). Therefore, this enumeration is without merit. Furthermore, we do not believe these are the type of incurable, inflammatory remarks that require a mistrial. See Cain v. State, 212 Ga.App. 531, 535, 442 S.E.2d 279 (1994); see also McKibbons v. State, 216 Ga.App. 389, 392-393(4), 455 S.E.2d 293 (1995) (not error for prosecutor in closing argument to remark that drugs are "ravaging our community").

Judgment affirmed.

BEASLEY, C.J., and BIRDSONG, P.J., concur.

[1] But see Boston v. State, 185 Ga.App. 740, 741-742(2), 365 S.E.2d 885 (1988) (because the defendant had not obtained a ruling on his motion to suppress, this Court had nothing to review).