Birge v. State

• Decision Date: 07 October 1977
• Docket Number: No. 3,No. 54296,54296,3
• Citation: 143 Ga.App. 632,239 S.E.2d 395
• Court: Georgia Court of Appeals
• Parties: Edwin BIRGE v. The STATE

Page 395

239 S.E.2d 395

143 Ga.App. 632

Edwin BIRGE v. The STATE.

No. 54296.

Court of Appeals of Georgia, Division No. 3.

Oct. 7, 1977.

Rehearing Denied Oct. 25, 1977.

Al M. Horn, James K. Jenkins, Atlanta, Douglas C. Vassey, Carrollton, for appellant.

William F. Lee, Jr., Dist. Atty., Newnan, for appellee.

BIRDSONG, Judge.

The appellant, Edwin Birge, along with two co-defendants, was indicted by the grand jury of Carroll County for violating the Georgia Controlled Substances Act by possessing more than one ounce of marijuana. Appellant was convicted of possessing one ounce, or less, of marijuana, and sentenced to twelve months imprisonment. Held :

1. The evidence shows that, at the time of his arrest, appellant resided in an unnumbered, simulated-wood dwelling owned by his father on Lake Carroll. The dwelling was situated at the end of an unnamed city road branching just past a residence numbered 140 Lakeshore Drive. It was the only dwelling located at the end of said road; the residence on the other fork of the road was described as a pink-colored house. The search warrant, pursuant to which the contraband was seized, described the place to be searched as "a wood dwelling house setting on the lake bank" at the end of a dirt road branching just past 140 North Lakeshore Drive.

Appellant contends that the trial court erred in overruling appellant's motion to suppress evidence seized pursuant to the above-described search warrant, and in admitting into evidence, over objection, said evidence. In an exhaustive argument, appellant asserts an array of theories in support of his contention.

( a) Several of appellant's theories may be categorized as mere " technical irregularities," the existence of which is insufficient to invalidate the warrant. Code Ann. § 27-312 (Ga.L.1966, pp. 567, 571). The alleged "irregularities" as to time of issuance of the warrant and the incorrect caption on the search warrant all fall within the category of a "technical irregularity not affecting the substantial rights of the accused." Merritt v. State, 121 Ga.App. 832, 833(2), 175 S.E.2d 890, 892 (1970); Latimer v. State, 134 Ga.App. 372, 214 S.E.2d 390 (1975).

( b) As to appellant's assertion that the investigating officer's alleged misstatement concerning appellant's inclusion in the City Directory would constitute grounds for invalidating the warrant under principles enunciated in United States v. Thomas, 489 F.2d 664 (5th Cir. 1973), we find that the trial judge did not err in his conclusion that the appellant failed to establish an intentional misstatement of a fact such that invalidation of the warrant would be required. In a hearing on a motion to suppress evidence, "the trial judge sits as the trior of the facts, hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it." State v. Swift, 232 Ga. 535, 536, 207 S.E.2d 459, 460 (1974); Smith v. Hornbuckle, 140 Ga.App. 871, 232 S.E.2d 149 (1977).

( c) Appellant contends that the description of the place and persons to be searched is ambiguous and overbroad. We find that the description of the premises ". . . sufficiently permits a prudent officer with a search warrant to be able to locate the person and place definitely and with reasonable certainty." Fomby v. State, 120 Ga.App. 387, 170 S.E.2d 585, 587; State v. Megdal, 139 Ga.App. 397, 228 S.E.2d 333 (1976). The plain wording of the warrant reveals both the place and persons to be searched, as well as the specific contraband sought: marijuana. "A warrant which identifies the premises and its owners or occupants is not void as a general warrant because it authorizes the search of other persons found there who may reasonably be involved in the commission of the crime for which the warrant is issued." Willis v. State, 122 Ga.App. 455, 457, 177 S.E.2d 487, 489; Campbell v. State, 139 Ga.App. 389, 228 S.E.2d 309 (1976).

( d) Appellant urges upon us the application of the principles established in Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977), which held that the issuance of a search warrant by a justice of the peace effected a violation of the protections afforded by the Fourth and Fourteenth Amendments to the United States Constitution. The warrant in this case was issued prior to the Connally decision, and this court has held that the Connally decision is not to be applied retroactively. State v. Patterson, 143 Ga.App. 225, 237 S.E.2d 707 (1977). Furthermore, the evidence established that the justice of the peace who issued the warrant had never received a fee for issuing a warrant, thereby eliminating the taint of pecuniary interest proscribed by Connally. Connally does not require reversal here. Williams v. State, 142 Ga.App. 764, 236 S.E.2d 893 (1977).

Appellant's first enumeration of error is without merit.

2. Appellant contends that the trial court erred in overruling appellant's motion challenging the composition of the grand and traverse juries as to sex, race, age and geographical distribution. On the hearing of appellant's jury challenge, the only evidence as to the composition of the jury panels was the opinion testimony of a statistician employed by appellant. The trial court, as trier of fact, was free to reject such expert testimony. Birge v. State, 142 Ga.App. 735, 236 S.E.2d 906 (1977); Ford Motor Co. v. Hanley, 128 Ga.App. 311, 315(2), 196 S.E.2d 454. These enumerations of error are without merit.

3. Appellant challenges the correctness of the trial court's refusal to grant appellant's motions for severance and mistrial, inasmuch as the co-defendants' defenses were claimed to have been potentially antagonistic. "The mere fact that co-defendants' defenses are antagonistic is not sufficient in itself to warrant separate trials." Cain v. State, 235 Ga. 128, 129, 218 S.E.2d 856, 858 (1975). The burden is on the defendant requesting the severance to "make a clear showing of prejudice. . . ." Cain,supra, p. 129, 218 S.E.2d p. 857. Appellant has failed to carry this burden. "Since the grant or denial of a motion to sever is left in the discretion of the trial court, its ruling will only be reversed for an abuse of discretion." Baker v. State, 238 Ga. 389, 391, 233 S.E.2d 347, 349 (1977). As we find no abuse of discretion, this enumeration of error is without merit.

4. Appellant enumerates as error the trial court's limitation of cross examination on certain matters not relevant to the determination of whether appellant was guilty of committing the offense charged. Specifically, appellant sought to introduce evidence concerning a separate search of the automobile and residence of appellant's co-defendant. While it is true that the right to a thorough and sifting cross examination may not be abridged, the permissible scope of cross examination is not unlimited. Jones v. State, 135 Ga.App. 893, 219 S.E.2d 585 (1975). "The scope of the cross-examination rests largely within the discretion of the trial judge, to control this right within reasonable bounds, and his discretion will not be controlled by a reviewing court unless it is abused." Sullivan v. State, 222 Ga. 691, 693, 152 S.E.2d 382, 383. "The trial judge may properly restrict the cross examination to matters material or relevant to the issues." Jones, supra, p. 898, 219 S.E.2d, p. 589. After thoroughly reviewing the voluminous transcript, we conclude that the trial judge did not abuse his discretion in limiting the appellant's cross examination to matters relevant and material to the issues. There is no error.

5. Appellant asserts that the trial court erred in overruling appellant's motion for an independent laboratory analysis of the contraband seized. The principles established in Patterson v. State, 238 Ga. 204, 232 S.E.2d 233 (1977), decided after the conclusion of appellant's trial, require that a defendant charged with possession or sale of a prohibited substance be entitled, upon timely motion, to an independent laboratory analysis of the contraband, by an expert of his own choosing. "Of course, the defendant does not have an absolute unqualified right to examine such evidence. The motion for an independent examination must be timely made. . . . The request must be reasonable. . . ." Patterson, supra, p. 206, 232 S.E.2d, p. 234. The motion should be granted only "(w)here the defendant's conviction or acquittal is dependent upon the identification of the substance as contraband . . . ." Id. See also Jackson v. State, (Miss.) 243 So.2d 396 (1971), affd., 261 So.2d 126 (1972).

The evidence shows that there was no bona fide dispute that the contraband was marijuana. During the search of appellant's premises, he was asked to "get the marijuana," upon which he handed the officers a plastic bag containing green, leafy material later identified by the state as marijuana. The appellant admitted that, together with two other individuals, he owned the marijuana, then later stated that the marijuana belonged to another individual. Appellant never claimed that the contraband was not marijuana, or any other legitimate substance, arguing simply that it belonged to someone else, or, alternatively, that the state had failed to adequately identify the substance as marijuana. Under these circumstances, Patterson does not require reversal, there being no bona fide claim that the contraband is not marijuana. Moreover, the law is settled that error, to be reversible, must be harmful. Robinson v. State, 229 Ga. 14, 15, 189 S.E.2d 53 (1972). We cannot say that under these circumstances, the trial judge's refusal to grant a motion for independent laboratory analysis was harmful. There is no error.

6. Appellant urges as error the trial court's admission into evidence, over objection, the contraband seized and later identified by the state's witness as marijuana, on the ground that the state's...