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Sharber v. State6/24/2004
The question presented in this appeal from a conviction for conspiracy to manufacture methamphetamine is whether the trial court erred in ruling that a law enforcement officer could give hearsay testimony about a statement made to him by one of the conspirators which incriminated the other conspirator. We hold that the court did err in allowing the testimony because the Georgia Supreme Court has held that such a statement is not made during the pendency of the criminal project and is thus inadmissible.
Sonny Lamberth is a cattle rancher and fertilizer dealer who lives in Mitchell County. On the night of August 7, 2001, he was on his property talking with the county sheriff about recent thefts of one of his fertilizers, anhydrous ammonia, when a truck pulled into his driveway. As the truck lights shined on the sheriff's car, the driver of the truck stopped, backed out of the driveway, and drove away.
The sheriff immediately got into his car, followed the truck and stopped it. In the back of the truck he noticed a round tank that can be used to store anhydrous ammonia. The sheriff discovered that Solomon Sharber was driving the truck and Henry Freeman was riding in the passenger seat. He called on his radio for assistance, and a short time later other officers arrived at the scene.
The officers searched Sharber's truck and found sixteen packets of Allerfed antihistamine tablets, two walkie-talkie radios, and a night vision lens. Sharber and Freeman were arrested and taken to the sheriff's office, where they were separately questioned by an investigator. Sharber denied any wrongdoing, but Freeman allegedly made statements incriminating Sharber to the investigator.
Sharber and Freeman were jointly indicted for conspiracy to manufacture methamphetamine. Sharber was also indicted for possessing marijuana, driving under the influence of drugs and affixing a license plate to a vehicle with the intent to misrepresent the identity of that vehicle. The state decided not to prosecute Sharber on the marijuana, DUI and license plate charges due to insufficient evidence, and the trial judge entered an order of nolle prosequi on those charges. The conspiracy to manufacture methamphetamine charges against Sharber and Freeman proceeded to a jury trial.
At the start of the trial, Sharber argued a Bruton motion, asking the court to prohibit the state from introducing testimony about the incriminating statements made by Freeman to the investigator on the ground that such evidence would violate his right to confront witnesses against him. The trial court instructed the state not to ask any Bruton questions without first addressing the court about those questions outside the jury's presence.
The trial commenced, with the state presenting the testimony of several witnesses. The court then excused the jury for a brief recess. At that point, the judge, apparently sua sponte, informed the parties that he was going to revisit the matter of the statements that both Freeman and Sharber had made to the investigator. The judge ruled that he would allow evidence of such statements because the declarations of co-conspirators are admissible. Sharber and Freeman objected, but the court maintained its ruling that the statements were admissible.
The state then called the investigator to the witness stand, and he testified before the jury about the statements. According to the investigator, Sharber denied any wrongdoing, claiming that at the time he was stopped he was not looking for anhydrous ammonia, but was looking for a drive shaft for a truck that someone had left for him in the area. Freeman, however, told the investigator that Sharber was looking for anhy
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