Bennett v. State

• Decision Date: 01 May 1981
• Docket Number: No. 61314,61314
• Citation: 158 Ga.App. 421,280 S.E.2d 429
• Parties: BENNETT v. The STATE.
• Court: Georgia Court of Appeals

Page 429

280 S.E.2d 429

158 Ga.App. 421

BENNETT v. The STATE.

No. 61314.

Court of Appeals of Georgia.

May 1, 1981.

Certiorari Denied June 23, 1981.

Clarence L. Leathers, Jr., Jonesboro, for appellant.

Robert E. Keller, Dist. Atty., Harold G. Benefield, Asst. Dist. Atty., for appellee.

CARLEY, Judge.

Appellant was indicted for possession with intent to distribute more than one ounce of marijuana resins in violation of the Georgia Controlled Substances Act. After an original plea of guilty was withdrawn, appellant was tried and the jury returned a verdict of guilty. Judgment was entered on the verdict and appellant was sentenced to ten years, three years to serve and seven years on probation. He appeals.

1. Appellant enumerates as error the denial of his motion for directed verdict at the close of the state's evidence. The evidence for the state adduced at trial was as follows: After receiving information that appellant had "hash oil" to sell, a GBI agent arranged a meeting with appellant through the informant. On August 24, 1978, at the appointed time and place two GBI agents and the informant met with appellant. The purchase of hash oil was discussed. Appellant and one of the agents left and returned with a bottle which appellant asserted contained the contraband. Appellant was paid the agreed price, counted the money and was arrested. The bottle was delivered to the State Crime Laboratory where analysis demonstrated the substance contained therein consisted of some 4.3 ounces of tetrahydrocannabinol that "most likely (was) not synthetic" and "would be considered marijuana resins." This evidence clearly did not demand a verdict of "not guilty" of possession of marijuana resins. There is no merit to arguments that the motion for directed verdict of acquittal was erroneously denied because there was a fatal variance between the allegation in the indictment that appellant possessed marijuana resins and proof at trial that he possessed Schedule I tetrahydrocannabinol within the meaning of former Code Ann. § 79A-806(d)(16) (Ga.L.1974, pp. 221, 231). Compare Aycock v. State, 146 Ga.App. 489, 246 S.E.2d 489 (1978). There was no fatal variance and the motion was not erroneously denied on that ground. Byers v. State, 236 Ga. 599, 225 S.E.2d 26 (1976).

After his motion for directed verdict was denied, appellant presented his defense of entrapment. Citing Harpe v. State, 134 Ga.App. 493, 214 S.E.2d 738 (1975), Hall v. State, 136 Ga.App. 622, 222 S.E.2d 140 (1975), and other cases too numerous to mention, appellant argues that the evidence of his entrapment demands an acquittal and that the guilty verdict cannot stand. We do not agree. We have reviewed the transcript and find that appellant's evidence that he was entrapped consists of no more than his testimony that he had never before been involved with drugs and that the government informer made repeated requests for drugs. "Because the phrase 'undue persuasion' is used in context with 'incitement or deceitful means,' (in Code Ann. § 26-905), it must mean something more than repeated requests for contraband drugs knowingly owned and possessed by one who at first demurs to the disposition of his drugs." Garrett v. State, 133 Ga.App. 564, 566, 211 S.E.2d 584 (1974). "The focus of the entrapment defense is the intent or predisposition of the defendant to commit the crime. (Cits.)" Johnson v. State, 147 Ga.App. 92, 93, 248 S.E.2d 168 (1978). Appellant's testimony that he had never before been involved in and was therefore presumably not predisposed toward drug transactions was rebutted by testimony that "showed him to be a person extremely knowledgeable in the drug trade who was eager to make sales and who had multiple sources of supply." Taylor v. State, 149 Ga.App. 362, 363, 254 S.E.2d 432 (1979). Compare, e. g., Robinson v. State, 145 Ga.App. 17, 243 S.E.2d 257 (1978). "(W)here the state produces rebuttal to the testimony of the appellant, it is not essential for the informer to testify. (Cit.)" Chambers v. State, 154 Ga.App. 620, 625, 269 S.E.2d 42 (1980). Thus, appellant's testimony negating his intent or predisposition to commit the crime charged was not unrebutted and the evidence authorized the submission of the entrapment defense to the jury. Causey v. State, 154 Ga.App. 76, 80(4), 267 S.E.2d 475 (1980). The jury was instructed as to the defense of entrapment and there is evidence to support their verdict. Smith v. State, 239 Ga. 477, 480(1), 238 S.E.2d 116 (1977). It was within the province of the jury to believe the state's witnesses and to disbelieve appellant. Taylor v. State, 149 Ga.App. 362, 254 S.E.2d 432, supra.

2. There are four terms of the Superior Court of Clayton County beginning on the first Monday of February, May, August and November. Appellant was indicted and filed his demand for speedy trial pursuant to Code Ann. § 27-1901 during the November 1978 term. During the next succeeding term, that of February 1979, appellant pled guilty after expressly acknowledging that such action on his part would result in a waiver of trial by a jury. A pre-sentence investigation was ordered and the sentence hearing, originally scheduled for the May 1979 term, was continued until the August 1979 term. Apparently at or before this sentence hearing appellant decided to withdraw his guilty plea and, on August 10, 1979, formally did so and demanded a jury trial. Appellant's case was called on January 30, 1980, during the next term of court, the November 1979 term. At that time both appellant and the state moved to continue the case and the trial court granted the request. Also on January 30, 1980, appellant moved to be discharged and acquitted because more than two terms of court had passed since he had made his demand for a speedy trial during the November 1978 term. The trial court denied appellant's motion and his subsequent trial and conviction occurred during the February 1980 term. Appellant enumerates as error the denial of his motion for discharge and acquittal under Code Ann. § 27-1901.

We have no difficulty in holding that appellant waived his right to rely on his demand for a speedy trial when he voluntarily entered his plea of guilty during the February 1979 term. "A waiver of the demand would result from a continuance granted on the motion of the accused, or from any other act on his part showing affirmatively that he consented to passing the case until a subsequent term." Walker v. State, 89 Ga. 482, 15 S.E. 553 (1892). The only question, therefore, is what effect the subsequent withdrawal by appellant of his guilty plea and the filing of his demand for jury trial had on appellant's right to insist that he be tried within a definite period or be discharged. The issue is whether appellant's subsequent withdrawal of his guilty plea and his demand for a jury trial "revived" his previously filed demand for speedy trial and, if so, whether his demand was met in this regard.

We find no precedent which presents the exact factual and procedural circumstances which exist in the instant case. In Gordon v. State, 106 Ga. 121(2), 32 S.E. 32 (1898) it was held: "If, at a term when a demand for trial is operative, a trial be had which results in a verdict of guilty, and a new trial be granted at that term, the failure of the accused to then move for a discharge will not affect his rights under the demand. It will stand over to be complied with at the next term." (Emphasis supplied.) While there is admitted dicta to the contrary in Clay v. State, 4 Ga.App. 142, 146, 60 S.E. 1028 (1908), we are prepared to assume for the limited purpose of the instant appeal only that Gordon stands for the proposition that when an otherwise "guilty" defendant who has filed a demand for a speedy trial successfully takes action to negate the determination of guilt, the demand "will stand over to be complied with at the next term." Applying this analysis to the instant case, appellant withdrew his guilty plea during the August 1979 term and would in fact have been tried during the "next term," the November 1979 term, had he not moved to continue the case. This was a waiver of any right appellant may have had under a "revived" demand to be tried no later than the November 1979 term. Walker v. State, 89 Ga. 482, 15 S.E. 553, supra. It is thus clear that absent appellant's own voluntary actions at every stage of the case he would have been tried at a term of court which would have been in compliance with his demand for a speedy trial. We find no error.

Furthermore, if appellant's demand for a jury trial filed in conjunction with the withdrawal of his guilty plea in the August 1979 term is itself construed as a demand for a speedy trial under Code Ann. § 27-1901 (Wallis v. State, 154 Ga.App. 764, 270 S.E.2d 45 (1980)), it was, in effect, a waiver of any and all rights he may have had to rely upon his original demand for a speedy trial and his right to be acquitted must stand or fall upon the state's compliance with the demand filed on August 10, 1979. Huckeba v. State, 157 Ga.App. 795, 278 S.E.2d 703 (1981). Again, under this analysis appellant would have been tried during the "next succeeding regular term" following the filing of this demand had he not agreed to continue the case to another term by joining in the motion for continuance when his trial was called on January 30, 1980. Thus pretermitting any argument that appellant's original demand for a speedy trial was "revived" when he withdrew his guilty plea, the record demonstrates that he was tried in full compliance with the demand filed during the August 1979 term.

3. The trial court properly overruled appellant's motion to strike testimony and evidence concerning statements made by the informant to the investigating officer. "Code § 38-302 provides that, 'When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they...