Butler v. State, 50042

• Citation: 213 S.E.2d 490,134 Ga.App. 131
• Decision Date: 11 February 1975
• Docket Number: No. 1,No. 50042,50042,1
• Parties: Harvey BUTLER v. The STATE
• Court: Georgia Court of Appeals

Page 490

213 S.E.2d 490

134 Ga.App. 131

Harvey BUTLER v. The STATE.

No. 50042.

Court of Appeals of Georgia, Division No. 1.

Feb. 11, 1975.

Rehearing Denied March 4, 1975.

Terrance Patrick Leiden, Augusta, for appellant.

Richard E. Allen, Dist. Atty., Sam B. Sibley, Jr., Asst. Dist. Atty., Augusta, for appellee.

Syllabus Opinion by the Court

MARSHALL, Judge.

Appellant was indicted on two counts of possession of heroin. Prior to the trial, he made several motions, to wit: (1) for change of venue, (2) to suppress illegally seized evidence, and (3) to have an independent analysis made of the drugs and a drug expert appointed for the defense. In addition, during the hearings and trial appellant contended the trial court erroneously: (4) quashed a defense subpoena, (5) overruled his challenge to the array of jurors, (6) allowed into evidence a statement made by appellant, and (7) admitted into evidence packages that were not proven to contain heroin. The overruling of these motions and the other rulings made by the trial court are the errors enumerated on appeal and discussed below. Held:

1. Appellant moved for a change of venue on the grounds of adverse pre-trial publicity and introduced various newspaper articles and transcripts of television and radio broadcasts. The publicity consisted of the filming of appellant's capture, a news conference wherein Richmond County Sheriff's Department revealed that the seizure from appellant's house was 'probably one of the largest seizures in the state' of cocaine and heroin with a 'street value . . . estimated at $1,700,000.00,' and other publicity concerning an attempted escape and the prior criminal record of a co-defendant. The motion was denied. On voir dire of the jury (the panel of 42), defense counsel asked whether anyone had seen the media coverage concerning defendant. Only one juror responded but he denied that the news report he saw would 'cause (him) to lean one way or the other.' This particular juror was not stricken.

Georgia does not precisely follow the standards for granting a change of venue or continuance as set forth in ABA Minimum Standards § 3.2(c) (if there is a 'reasonable likelihood' that a fair trial cannot be had then the motion should be granted. 'A showing of actual prejudice shall not be required') and as established in the federal cases cited by appellant to the same effect. E.g. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663; Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250. The Georgia Supreme Court has consistently followed the rule conceived in Morgan v. State, 211 Ga. 172(1), 84 S.E.2d 365 that a change of venue or a continuance will not be granted upon a mere showing that publications were made denunciatory to the defendant without further proof that the jurors summoned to hear the case had actually been exposed to the publicity and had formed fixed opinions as to the guilt or innocence of the defendant that would not yield readily to testimony. And 'the granting or the refusing of a motion for a change of venue, is within the discretion of the trial judge. Such discretion will not be controlled by the appellate courts unless abused.' McCrary v. State, 229 Ga. 733, 734, 194 S.E.2d 480, 481; Thacker v. State, 226 Ga. 170(2), 173 S.E.2d 186; Park v. State, 225 Ga. 618(1), 170 S.E.2d 687; Williams v. State, 222 Ga. 208, 209, 149 S.E.2d 449; Chatterton v. State, 221 Ga. 424(2), 144 S.E.2d 726. Applying this standard, we find no abuse of discretion.

2. Appellant filed a written motion to suppress the introduction of the drugs into evidence. The three grounds stated for suppression were: (1) the drugs seized were not under appellant's control, (2) a copy of the warrant was not given to the appellant, and (3) there was no return of the warrant. These also were the three grounds urged by appellant at the hearing on the motion. The motion was overruled and we agree that none of the stated reasons was grounds for excluding the evidence. On appeal, appellant, for the first time, contends that the search warrant was void because it was issued by a justice of the peace of Richmond County who had no authority under Code Ann. § 27-303 to issue the warrant. See Ga.L.1931, p. 270; 1971, p. 2745.

Even if we accept as fact that the warrant issued (it is not included in the record) is void, ab initio, and is a nullity, we must conclude that this is not grounds for reversal. 'The holding of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, that all evidence obtained by searches and seizures in violation of the Fourth Amendment of the Federal Constitution is inadmissible in state courts, is only an exclusionary rule and does not affect the competence of evidence admitted without timely challenge . . . Moreover, Section 13 of an Act of 1966 (Ga.L.1966, pp. 567, 571; Code Ann. § 27-313) established a procedure for the suppression of evidence obtained by unlawful search and seizure and provided that a motion to suppress 'shall be in writing and state facts showing wherein the search and seizure were unlawful.' Defendant's failure to interpose a timely motion to suppress pursuant to the Act amounted to a waiver of the constitutional guaranty in respect to the search and seizure involved in this case.' Gilmore v. State, 117 Ga.App. 67, 68(2), 159 S.E.2d 474, 475; Wilson v. State, 126 Ga.App. 145(1), 190 S.E.2d 128; Garrett v. State, 120 Ga.App. 611(2), 171 S.E.2d 772; West v. State, 120 Ga.App. 390(1), 170 S.E.2d 698; Lane v. State, 118 Ga.App. 688, 165 S.E.2d 474. See also 30 ALR3d 128, § 10(a). We hold that the requirements for timely objection applies with equal force to a warrant that is void as it does to a warrant that is defective for some other reason. The reasons specified by the appellant for challenging the warrant at the trial were not sufficient to raise the reason for challenge raised for the first time on this appeal.

3. Appellant moved for the trial court to appoint an expert to testify for the defense as to the accuracy of the tests made on the drugs and for an independent analysis of same. The trial court's denial of these motions, appellant contends, deprived him of his Sixth Amendment right to effective assistance of counsel; of his right of confrontation and cross examination and, because of his inability to pay for his own expert, of his Fourteenth Amendment equal protection rights. While defense needs for independent analysis and expert testimony may have been held to be a constitutionally protected right in other jurisdictions, People v. Watson,36 Ill.2d 228, 221 N.E.2d 645; State v. Campbell, Iowa, 215 N.W.2d 227; State v. Williams, Iowa, 207 N.W.2d 98, we find no authority in Georgia nor under the Federal Constitution for such a rule. Cf. Taylor v. State, 229 Ga. 536, 192 S.E.2d 249; Moore v. State, 113 Ga.App. 738, 739, 149 S.E.2d 492; Roach v. State, 111 Ga.App. 114(3), 140 S.E.2d 919.

There is provision in 'The Georgia Criminal Justice Act' (Ga.L.1968, pp. 999-1005) for payment by counties of 'expenses necessarily incurred by them (assigned counsel) in the defense of indigents.' Code Ann. § 27-3204. It would seem that such payment would include the expense of employing an expert to testify in behalf of the defendant. The record does not show under what system Richmond County operates, what fee limits have been set by the governing authority, whether 'investigation expenses' had been approved by the court and requested by counsel. In the absence of these facts, appellant has failed to show error in the trial court's denial of these motions.

4. Enumeration of error number 5 is that the trial court erred in quashing the appellant's subpoena of a news director of a local television...