Cauley v. State, s. 48422

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtEBERHARDT
Citation203 S.E.2d 239,130 Ga.App. 278
PartiesLeroy CAULEY, Jr. v. The STATE. Walter K. WOODS v. The STATE
Docket NumberNo. 3,48423,Nos. 48422,s. 48422,3
Decision Date09 November 1973

Page 239

203 S.E.2d 239
130 Ga.App. 278
Leroy CAULEY, Jr.
Walter K. WOODS
Nos. 48422, 48423.
Court of Appeals of Georgia, Division No. 3.
Nov. 9, 1973.
Rehearing Denied Nov. 26, 1973.

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Syllabus by the Court

1. (a) The sole remedy available to one who wishes to object to a panel of jurors having less than the statutory number of prospective jurors thereon is by challenge to the array, which must be in writing.

(b) The trial court did not err, during the hearing on the motion to suppress evidence, in refusing to permit inquiry as to an overheard telephone conversation in order to determine who made the call to one of the defendants and whether the caller consented to the police overhearing it as provided in Criminal Code § 26-3006, since the conversation was not material to the trial, no evidence as to it was introduced, and the convictions resulted entirely from an illegal sale of amphetamines arranged for by telephone calls made on other occasions. Assuming illegality in the overhearing of the conversation, there is no merit in the contention that other evidence was 'tainted' by this illegality since the other evidence was not derived from an exploitation of that illegality but instead from means sufficiently distinguishable to be purged of any 'taint' attaching to that illegality.

(c) Where an illegal transaction is in progress, there is no [130 Ga.App. 279] requirement that police officers must await the final consummation of the transaction before obtaining a search warrant.

(d) There is no merit in the contention that the court erred in failing to require the district attorney to disclose any promise of leniency which had been offered by the state to a witness, since it does not appear that any such promise was made.

2. (a) Where a codefendant makes an unsworn statement and the court charges on his right to do so as provided for by Code Ann. § 38-415, but fails to give the other defendant's written request to charge that the jury should draw no inference against him because he made no statement, any error in failing to so charge is harmless where the charge as to the codefendant's statement does not occur in such connection as to lead the jury to believe that they should infer that the other defendant's failure to make one should be counted against him, and where the evidence as to the other defendant's guilt is overwhelming and demands his conviction.

(b) No reversible error appears in the failure of the trial judge to disqualify himself in regard to a challenge to the poll of jurors who overheard his alleged prejudicial remarks, since it does not appear that the court was disqualified under the standards of Code Ann. § 24-102 and since the court held that his remarks were in fact prejudicial and excused the jurors who overheard them.

(c) Assuming, under the holding in Bruton v. United States, 391 U.S. 123, 88

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S.Ct. 1620, 20 L.Ed.2d 476, that constitutional error occurred in this joint trial by the admission into evidence of a confession which inculpated the complaining defendant and which was given to police officers by a codefendant who made only an unsworn statement at the trial and was not subject to cross examination, the error was harmless beyond a reasonable doubt under the holdings in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284, Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340, and similar cases, since the evidence was overwhelming as to the complaining defendant's guilt and demanded his conviction.

(d-h) No reversible error appears in the denying of a motion for mistrial made on the grounds that the trial court offered a state's witness 'immunity' relating to his testimony, since (1) there was no agreement or understanding between the prosecuting attorney and the witness, (2) any offer of 'immunity' to the [130 Ga.App. 280] witness by the court was invoked by defendant's counsel in attempting to assert the witness' constitutional rights, to which the court responded by stating that since the witness had not been advised of his rights and was without counsel, he could not be prosecuted later on account of testimony given upon the present trial, (3) any offer of 'immunuity' would in no way change the witness' position since he was admittedly an undercover aide of the police and not an accomplice with respect to this transaction, (4) the whole matter was brought out before the jury and the issue of credibility was thus before them, and (5) the facts and the law do not support the contention made in support of the motion that the court had assumed partially the function of the prosecutor by offering the witness 'immunity' when it had no authority to do so.

(i) An undercover aide of the police is not an accomplice within the meaning of the rule requiring corroboration of an accomplice's testimony.

Martin, Davidson & Kilpatrick, Frank K. Martin, Columbus, for Leroy Cauley, Jr.

Grogan, Jones & Layfield, John C. Swearingen, Jr., Columbus, for Walter K. Woods.

E. Mullins, Whisnant, Dist. Atty., Columbus, for the State.

EBERHARDT, Presiding Judge.

Defendants in these two felony cases were jointly indicted, jointly tried (Code Ann. § 27-2101), and convicted for selling 'drugs of abuse' (anphetamines) (Code Ann. § 79A-901 et seq.). Defendant Cauley raises the identical points of law made by defendant Woods, and these issues will be considered together in Division 1. Separate issues raised by Cauley will be dealt with in Division 2.

1. Issues common to both appeals.

(a) Before trial defendants filed a challenge to the poll based upon prejudicial remarks 1 concerning rules of the Board of [130 Ga.App. 281] Pardons and Paroles made by the court at the conclusion of a preceding trial. The challenge was directed to the twelve jurors who served on the preceding trial as well as all the other jurors who were present in the courtroom at the time the remarks were made. Defendants requested that those jurors be excused and that additional jurors be drawn to bring the panel up to 48. The court sustained the challenge as to the twelve jurors who sat on the preceding

Page 243

trial, which left 53 jurors on the panel. Additionally, eight other jurors who were present in the courtroom and had overheard the remarks were excused by the court 'for cause.' This left 45 jurors on the panel, and defendants enumerate as error the failure of the court to allow them a full panel of 48 qualified jurors from which to select a traverse jury.

The law appears to be clear that prior to July 1, 1973, a defendant in a felony case was entitled to have 48 qualified jurors put upon him prior to the time he was required to begin striking. Code Ann. § 59-801; Britten v. State, 221 Ga. 97, 99(3), 143 S.E.2d 176. 2 A challenge to the poll is the proper procedure to be followed to disqualify jurors on the ground that the trial judge had made a prejudicial remark in their presence. Hill v. State, 221 Ga. 65(1, 2), 142 S.E.2d 909. A challenge to the poll is one peremptory or for cause, addressed to an individual juror (Humphries v. State, 100 Ga. 260, 262, 28 S.E. 25), while a challenge to the array is a challenge or objection to all of the jurors collectively because of some defect in the panel as a whole, such as, for example, that the names of the jurors were drawn from the grand jury box (Pollard v. State, 148 Ga. 447(4), 96 S.E. 997), or were not drawn in open court (Blevins v. State, 220 Ga. 720(3), 141 S.E.2d 426), or some other reason running to the whole of the panel.

There was no challenge to the array such as is provided for in Code § 59-803: 'The accused may, in writing, challenge the array for any cause going to show that it was not fairly or properly impaneled, or ought not to be put upon him; the sufficiency of which challenge the court shall determine at once. If sustained, a [130 Ga.App. 282] new panel shall be ordered; if not sustained, the selection of jurors shall proceed.'

'If the panel does not contain the requisite number of jurors when it is put upon the defendant, the law prescribes, in Pen.Code § 972 (now Code § 59-803), his sole remedy. He may challenge the array. If he does not challenge the array, no other method of complaint as to the deficiency of the panel is open to him.' Ivey v. State, 4 Ga.App. 828, 831, 62 S.E. 565, 566. See also Williams v. State, 31 Ga.App. 173(3), 120 S.E. 131. The objection is waived unless properly challenged. Williams v. State, 210 Ga. 665, 667, 82 S.E.2d 217.

The state contends that a full panel was put upon the defendant when it had 65 jurors in it, and that the excusing of 20 of them pursuant to challenges to the poll by the defendants did not result in putting on them a panel less than that required by Code Ann. § 59-801. The trial court agreed. Without deciding this issue it is sufficient to point out that there was no written challenge to the array, and thus that the mere oral objection raised by defendants before beginning the process of selection that the panel was deficient in number, raises no issue that we can decide. The oral objection or complaint was not open to them. Porch v. State, 207 Ga. 645(2), 63 S.E.2d 902; Thompson v. Buice, 162 Ga. 556(2), 134 S.E. 303. A jury was in fact selected from the 45 jurors left on the panel after sustaining the challenges to the poll, and defendants were denied no strikes. 3 The enumeration is without merit.

(b) Defendants moved to suppress, inter alia, 'all testimony' which might be forthcoming at the trial as a result of police eavesdropping, without an investigation warrant (Criminal Code § 26-3004), on certain telephone conversations to which defendant Cauley was a party. Insofar as the motion to suppress is directed

Page 244

at anticipated testimony, rather than 'property' (Code Ann. § 27-313), the motion was properly overruled since a motion to suppress under Code Ann. § 27-313, which is the sole authority for...

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