Baker v. State, 51449
| Decision Date | 25 November 1975 |
| Docket Number | No. 51449,No. 1,51449,1 |
| Citation | 137 Ga.App. 33,222 S.E.2d 865 |
| Parties | J. T. BAKER v. The STATE |
| Court | Georgia Court of Appeals |
Harrison, Martin, Childs & Foster, Mobley F. Childs, C. David Wood, Decatur, for appellant.
Richard Bell, Dist. Atty., George N. Guest, Asst. Dist. Atty., Decatur, for appellee.
John Travis Baker appeals from his indictment and conviction of two counts of violating the Georgia Controlled Substances Act on July 14 and July 22, 1974, each count alleging the possession and sale of cocaine. The state's evidence was that Baker was arrested on or about October 25, 1974, after making the sales of cocaine alleged in the indictment to Officer S. B. Courtney, an undercover narcotics agent of the Drug Enforcement Agency of the Atlanta Police Department. Baker denied the sale of drugs to any person at any time and presented alibi defenses for the two dates alleged in the indictment.
1. The trial court did not err in denying Baker's motion for directed verdict made at the close of the state's case based on the failure of the proof to sustain the allegations of the indictment that the cocaine was sold on July 14 and 22.
The state concedes that the indictment was drawn so as to make the dates material allegations which required proof. See Smith v. State, 74 Ga.App. 777(3), 41 S.E.2d 541. 'Where an accusation sets out a criminal offense as committed in a particular way, the proof must support the allegations thus made, even though the offense be stated with unnecessary particularity.' Jackson v. State, 39 Ga.App. 35, 145 S.E. 902.
Officer Courtney identified state's exhibits 1 and 2 as the purchases of cocaine he made from the defendant and stated positively that the dates alleged in the indictment were in fact the dates on which the offenses occurred although he had erroneously dated one of the packets July 23. Officer Watts, who assisted in the arrest, had to use the reports he made at the time to refresh his memory and also identified the evidence by his initials and the dates inscribed thereon.
It is well settled that a witness may use notes to refresh his memory while testifying. Code § 38-1707. What conflicts there were here did not disprove the dates alleged but merely created an issue of fact to be resolved by the jury, which it resolved in favor of the state.
2. Error is enumerated in the admission of state's exhibits 1 and 2, which contained the cocaine allegedly sold by the defendant, on the ground that an insufficient chain of custody was proven.
Officer Courtney testified that he made two purchases of aluminum foil packets of white powder from the defendant on July 14 and July 22; that on each date he immediately returned to the Drug Enforcement Agency (DEA) office where he, in the presence of Officer Watts, sealed the aluminum foil packets in a plastic envelope with a heat seal; and that both bags remained in the DEA office until July 23, 1974, at which time they were sent by registered mail to the DEA laboratory in Miami, Florida.
Charles Clark of the DEA laboratory testified that state's exhibits 1 and 2, the plastic bags containing the cocaine, were received in the laboratory on July 25, 1974, by Clifford Pike, the evidence custodian; that he recognized Pike's signature on the registered mail receipts; that on July 26 he (Clark) received the items for analysis in the condition in which they were received and secured in the evidence vault under Pike's control; that the plastic bags containing the aluminum packets of cocaine were heat-sealed at the top; that he opened the bags at the bottom and removed and analyzed the material; and that upon conclusion of the tests he replaced the items in the bags, heat-sealed them at the bottom and returned them to the vault where they remained until he signed them out for delivery to court.
Officers Courtney and Watts both identified state's exhibits 1 and 2 as being the items that were purchased, sealed and mailed to Miami. Officer Courtney swore that the items marked as state's exhibits 1 and 2 were exactly as he had sent them except that the aluminum foil was 'flatter.'
Nothing was introduced to show that the exhibits had been tampered with or mishandled or that the items were in an unsealed condition at any time other than when being analyzed by the chemist. Therefore, this evidence was properly admitted. Epps v. State, 134 Ga.App. 429 433(6), 214 S.E.2d 703; Meadows v. State, 135 Ga.App. 758, 219 S.E.2d 174, and cases cited.
3. The trial court did not err in allowing the jury to disperse. Counsel for defendant made no objection at the time of dispersal and the judge properly instructed the jury not to discuss the case or to listen to or read news reports during the recess. Code Ann. § 59-718.1; White v. State, 230 Ga. 327, 340, 196 S.E.2d 849; Walters v. State, 128 Ga.App. 232, 196 S.E.2d 326.
4. Enumerated error 6 complains of the court's charge to the jury on the alternative forms its verdict could take. The charge complained of was the second time the court charged on the alternative forms. The first charge was correctly given. The second time it was charged, the court stated: '. . . you can find the defendant guilty of Count One, as I have said, and not guilty on Count Two, or guilty on Count One and not guilty on Count One.' (Emphasis supplied.)
Clearly this was merely a restatement of the correct charge which contained a slip of the tongue whereby the court said 'One' instead of 'Two.' If this constituted error it was harmless since the jury had previously heard the correct charge and could have reasonably noted any error t...
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Wilson v. State
...and not prejudical it will not require a new trial. Childers v. State, 130 Ga.App. 555(5), 203 S.E.2d 874. In Baker v. State, 137 Ga.App. 33(4), 222 S.E.2d 865 where the judge inadvertently stated "One" rather than "Two," this court found no error, and we find none here. The court stated th......
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