Black v. State
Decision Date | 16 June 1983 |
Docket Number | No. 65752,65752 |
Citation | 305 S.E.2d 837,167 Ga.App. 204 |
Parties | BLACK v. The STATE. |
Court | Georgia Court of Appeals |
Rodger E. Davison, Royston, for appellant.
Tim Madison, Dist. Atty., for appellee.
Appellant was convicted of one count of possession of marijuana with intent to distribute and one count of possession of cocaine. He appeals from the judgments of conviction and sentences entered on the jury's guilty verdicts.
1. Appellant enumerates as error the denial of his motion to suppress. The contention in this regard is that the warrant was issued on an affidavit containing "stale" information. The affidavit recited that information had been received from an informant that contraband had been seen at appellant's residence "within the past 21 days." Also, "this informant stated that he had known [appellant] for the past 6 months and during that time he had been in the [appellant's] residence on a regular basis at 3 week intervals and each time [appellant] had drugs that he used, stored and sold on the premises." In addition to the above, the affidavit stated that further information had been received from a second informant "who stated that within the past 7 days he had personally seen cocaine, marijuana and prescription drugs being kept on the premises."
Tuzman v. State, 145 Ga.App. 761, 764, 244 S.E.2d 882 (1978). Pretermitting consideration of whether the information received from the first informer "within the past 21 days" was stale, the information received from the second informant "within the past 7 days" was not. Giles v. State, 149 Ga.App. 263-264, 254 S.E.2d 154 (1979).
Appellant further asserts that his motion to suppress should have been granted because the state's analysis "destroyed" the evidence and thus prevented appellant from having his own independent scientific test conducted.
In the first instance, destruction of evidence in the course of analysis by the state is not a ground upon which to seek the suppression of the results of the state's test. State v. Johnston, 249 Ga. 413, 291 S.E.2d 543 (1982). In the second instance, the record does not support appellant's assertion that the evidence was "destroyed." What appears is that, pursuant to appellant's motion, the trial court properly granted appellant the limited right to conduct an independent analysis of the evidence. See generally Patterson v. State, 238 Ga. 204, 232 S.E.2d 233 (1977). Pursuant to this order, appellant's expert was in fact afforded the opportunity to inspect such evidence as was then in the possession of the state crime lab. Upon that inspection, it was discovered that, as a result of analysis, the contraband had changed from a solid to a distillate form, but there is no evidence that it had been destroyed. We find no error in the denial of the motion to suppress.
2. Apparently at the time of the execution of the search warrant, appellant had stated to the sheriff: "You caught me holding the most I've ever had." When this statement was subsequently brought into evidence at trial, appellant moved unsuccessfully for a mistrial on the ground that he had not been supplied with a copy of this statement purported to have been made by him. Appellant asserts that the trial court erred in failing to grant his motion for a mistrial.
Appellant had made no pre-trial motion pursuant to OCGA § 17-7-210 (Code Ann. § 27-1302). Only a Brady motion had been filed. Accordingly, this enumeration is without merit. McCarty v. State, 249 Ga. 618, 292 S.E.2d 700 (1982).
3. Appellant asserts that the district attorney twice violated OCGA § 17-8-75 (Code Ann. § 81-1009) in his closing argument and that the trial court consequently erred in denying appellant's motions for mistrial. The first contested statement, apparently referring to high school student observers in the court room, was as follows: Appellant's argument in this regard is meritless. Brand v. Wofford, 230 Ga. 750, 754(9), 199 S.E.2d 231 (1973). The second statement of the district attorney was the following: We likewise find that this portion of the state's argument was not violative of OCGA § 17-8-75 (Code Ann. § 81-1009). See Minor v. State, 143 Ga.App. 457(2), 238 S.E.2d 582 (1977).
Moreover, it appears that the trial court instructed the district attorney not to continue the line of argument and instructed the jury to disregard both comments. Accordingly, there was no error. See generally Ritter v. State, 163 Ga.App. 158(2), 293 S.E.2d 547 (1982).
4. Appellant enumerates as error the trial court's instruction to the jury with reference to circumstantial evidence. It is apparently appellant's contention that the charge as given on this issue was erroneous because it did not include the following principle of OCGA § 24-4-6 (Code Ann. § 38-109): "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of guilt of the accused." However, our review of the transcript demonstrates that a charge in almost the exact language of OCGA § 24-4-6 (Code Ann. § 38-109) was in fact given. Accordingly, this enumeration of error is patently meritless.
5. Appellant enumerates as error the failure to give a certain requested instruction to the...
To continue reading
Request your trial-
Callahan v. State
...that they could take part in the war against drug trafficking by convicting the defendant is not an improper appeal. Black v. State, 167 Ga.App. 204, 305 S.E.2d 837. Moreover, we are satisfied that the curative instructions to the jury cured any potential harmful error in the prosecutor's r......
-
Blackston v. State, 68453
...failure to support law enforcement officers. See Minor v. State, 143 Ga.App. 457, 238 S.E.2d 582 (1977). See also Black v. State, 167 Ga.App. 204, 206(2), 305 S.E.2d 837 (1983). The jury may also be informed that it has the ultimate responsibility of deciding whether " 'to turn [a defendant......
-
Meeks v. State
...failure to define the meaning of terms used in the charge is not ordinarily ground for reversal.' [Cits.]" Black v. State, 167 Ga.App. 204, 207(6), 305 S.E.2d 837 (1983). As to appellant's reference to an alleged misstatement by the state on the law of possession, appellant failed to object......
-
Jordan v. State, s. 68840
...return a verdict of guilty. This he may do." Stancil v. State, 158 Ga.App. 147, 148, 279 S.E.2d 457 (1981). Accord Black v. State, 167 Ga.App. 204(3), 305 S.E.2d 837 (1983); Williams v. State, 159 Ga.App. 772(2), 285 S.E.2d 232 (1981). The discretion conferred upon the trial court by OCGA §......