Bennett v. State
| Decision Date | 09 January 1980 |
| Docket Number | No. 58899,58899 |
| Citation | 153 Ga.App. 21,264 S.E.2d 516 |
| Parties | BENNETT et al. v. The STATE. |
| Court | Georgia Court of Appeals |
Bobby L. Hill, Jack P. Friday, Jr., Savannah, for appellants.
Andrew J. Ryan, III, Dist. Atty., Stephen R. Yekel, Asst. Dist. Atty., for appellee.
Smith and Bennett were convicted on April 19, 1978, of possession and sale of marijuana. Appellants enumerate five errors. Held :
I.
Smith and Bennett contend they were denied a speedy trial and that the trial court erred in overruling their plea in bar made on that basis. They were arrested September 11, 1974. A trial three years later in October, 1977, resulted in a hung jury; appellants were tried again and convicted on April 19, 1978, three years and seven months from the date of arrest.
Appellants contend they made a jury demand in August, 1975, and that the case was set for trial four times and each time was "passed" by the state, three times for no expressed reason, and one time by "inadvertence." At no time, they say, was the state precluded from bringing the case to trial and each of the continuances was at the request of the state.
The record and transcripts of proceedings do not support these contentions of the appellants. The record reveals that appellants were first scheduled for trial in July, 1975, ten months after arrest and six months after they were indicted, but at about that time, appellants' attorney Hill notified the state by letter that he was removing himself from the case. A month later, the attorney notified the state, again by letter, that he was reinstated as appellants' attorney. That same month, August, 1975, appellants filed seven pre-trial motions, including motions to stay the prosecution until the indicting grand jury and the petit jury composition could be investigated, examined, challenged, and quashed. One of these motions is entitled "Motion to Require that the Defendant Have an Opportunity to Select a Traverse Jury that Fairly Represents a Cross-Section of the Community of Chatham County"; it requests only that the twelve jurors who sit in judgment on the defendants be fairly constituted. Neither this nor any other pleading or document, at any time from the arrest until trial, requests or demands that a jury trial be held. On November 12, 1975 and again on August 10, 1976, the case was scheduled for trial. The case was "passed" on these dates. The trial judge recalled being requested by appellants' attorney Hill to continue the case on one of the occasions it was called to trial; the assistant district attorney recalled being asked for a continuance by appellants, or that the case was passed "due to the fact that Mr. Hill had called (the district attorney) and there was a mix-up as to whether this case was going out at that time and it was passed inadvertently." The appellants' motions requesting a stay of prosecutions had never been disposed of at this time.
On June 23, 1977, the case was again scheduled for trial, but Mr. Hill advised the court that there were motions pending, and he arranged motion hearings for August 9 and 10. On August 9, Hill withdrew all motions and advised the trial court that appellants would enter an open-ended guilty plea on August 10. The pleas were entered; the attorney requested a nine-day sentencing deferral; on August 19, he requested a thirty-day continuance of the sentencing, and this was granted until September 12. On September 12, Hill advised in open court that he no longer represented appellants and that they withdrew their pleas. Another attorney for the appellants set an October 14, 1977, arraignment date, and then requested a continuance. However, on August 26, Hill was reinstated as attorney for appellants; two days later appellants filed a motion to remove the case to federal court (which was later denied), a motion for recusal to have the trial court judge remove himself from the proceedings, a plea in bar for delay in prosecution, a motion requesting a ruling on the constitutionality of the prosecuting statute, a motion for stay of prosecution pending disposition of the federal court removal of action petition, and others. On disposition of all those motions, trial was held October 17, 1977, resulting in a mistrial. The case was not tried until April 19, 1978, because in December, 1977, and again in January, 1978, when trial dates were set, appellants' attorney requested continuances because of conflicts with the sessions of the Georgia legislature, of which he is a member. The legislature recessed in March; on April 19, 1978, the appellants were tried again and convicted.
During all this time following their arrest, the appellants were not incarcerated, and they have not shown any actual prejudice other than the mere passage of time. At no time, until they filed their plea in bar for delay of prosecution, did appellants ask for or urge a trial or indicate or contend in any way that they were chafing under the yoke of prosecution procrastination, real or imagined. It is too plain for elaboration that the delays in this case were created and concurred in by the appellants. We do not agree that the "Motion to Require that the Defendant Have an Opportunity to Select a (Fairly Constituted) Traverse Jury" is a demand for trial operating to invoke Code § 27-1901 and authorizing appellants' discharge if not tried for two terms of court thereafter. By its terms, for whatever laudable reason, the motion sought to postpone any trial; the other motions filed by appellants specifically requested a stay of prosecution. Appellants allowed these motions to dangle in the air for nearly two years; in June, 1977, when another trial date was set, appellants pointed to the pendency of these motions as another reason for continuance. We have no difficulty in holding that the trial court was correct in denying appellants' plea in bar on these grounds. See, as authority for this ruling, Fleming v. State, 240 Ga. 142, 144, 240 S.E.2d 37; and Powell v. State, 143 Ga.App. 684, 685, 239 S.E.2d 560.
II.
A. Appellants contend they were subjected to improper character impeachment by the admission of hearsay statements. During trial a detective testified over objection that his informant in the case had told him that a subject by the name of Ronnie Smith had approximately one hundred pounds of marijuana to sell. This testimony was admissible as original evidence to explain the conduct of the detective in meeting with appellants and entering in the drug transaction with them. Code § 38-302; Burrell v. State, 140 Ga.App. 900, 902, 232 S.E.2d 172. In Boyd v. State, 146 Ga.App. 359, 246 S.E.2d 396, a statement concerning information from an informant was held to be character impeachment because the witness related that the informant had referred to the appellant Boyd as "a known narcotics dealer." That phrase impeached Boyd's character because it refers to his general character and his conduct in other transactions (see Felton v. State, 93 Ga.App. 48, 49, 90 S.E.2d 607 and Lewis v. State, 59 Ga.App. 387, 1 S.E.2d 62). In the testimony in the case at bar, appellants' general character and conduct in other situations is not denigrated, but the statement refers merely to the particular circumstances giving rise to the investigation and prosecution of the appellants for the crime charged. We find no merit in this enumeration of error.
B. Appellants cannot complain that an officer testified to alleged other crimes, and that another witness stated he had seen evidence in this case during another case against the defendants. In the first instance, appellants' attorney pleaded with the officer to state whether he himself had seen appellants violate the law; the officer at first responded negatively, and answered further questions evasively until, when sorely pressed on the question, he stated he had seen additional contraband removed from appellants' vehicle. In the second instance the witness was asked by appellants' attorney when had been the last occasion before trial that he had seen the bag of marijuana, to which the witness said, "Yesterday" and was further pressed to state when, before then, he had seen the bag. He answered, "(D)uring the last trial," meaning apparently the trial which had ended in mistrial. This statement, besides being one the attorney might have expected, does not of itself imply appellants had been tried for other crimes. Nevertheless, the court properly instructed the jury to disregard the answer concerning the fact that there had been another trial. However, in both these instances of testimony, the troubling answers were actively pursued by the appellants, and if they were error, they were induced. Clyatt v. State, 126 Ga.App. 779, 783, 192 S.E.2d 417; Rozier v. State, 126 Ga.App. 336(1), 190 S.E.2d 627.
C. Appellants contend that improper comments made by the district attorney in closing arguments were impeachment of character, in that the district attorney allegedly made statements that appellants "were professional drug dealers who would be selling heroin and cocaine next and who would kill the state's witnesses if their identity was (sic) revealed." Although the actual context of these alleged prejudicial remarks was somewhat different, nevertheless appellants made no objection until after the court's charge and no ruling was invoked on the subject, either by way of reprimanding counsel or of instructing the jury or of declaring a mistrial, and therefore even if the remarks were improper there is no ground for reversal. Rhodes v. Rogers, 134 Ga. 551, 68 S.E. 323. Any possible injury to the appellants was attributable to failure of their attorney to make the appropriate objection and motion for mistrial. Bass v. State, 152 Ga. 415, 110 S.E. 237. As to the district attorney's comment: ...
To continue reading
Request your trial
-
Castell v. State
...be more likely to believe law enforcement officers, or less likely to believe a defendant, than other witnesses, Bennett v. State, 153 Ga.App. 21(3), 264 S.E.2d 516 (1980); to ask prospective jurors their understanding of matters of law (such as the presumption of innocence, death penalty p......
-
Henderson v. State
...supra, 132 Ga.App. 615, 208 S.E.2d 625, and the credibility of law enforcement officers over ordinary citizens, Bennett v. State, 153 Ga.App. 21, 25-26, 264 S.E.2d 516 (1980); Smith v. State, 148 Ga.App. 1, 251 S.E.2d 13 (1978); Cox v. State, 248 Ga. 713(3), 285 S.E.2d 687 (1982). Questions......
-
Harris v. State
...is a confidential informant. See, e.g., Moore v. State, 187 Ga.App. 387, 388-389(2), 370 S.E.2d 511 (1988); Bennett v. State, 153 Ga.App. 21, 27-28(IV), 264 S.E.2d 516 (1980). 2. As in Moore, 187 Ga.App. at 392(2), 370 S.E.2d 511, "[h]aving determined that error of a constitutional magnitud......
-
Henderson v. State
...trial judge (see Boyd v. State, [146 Ga.App. 359, 246 S.E.2d 396 (1978) ] ), which in this case was not abused." Bennett v. State, 153 Ga.App. 21, 27, 264 S.E.2d 516 (1980). 3. Thirdly, Henderson contends that the trial court erred in failing to exclude testimony relating to certain in-cust......