Clyatt v. State

• Decision Date: 07 July 1972
• Docket Number: 2,No. 47078,3,Nos. 1,47078,s. 1
• Citation: 126 Ga.App. 779,192 S.E.2d 417
• Parties: David D. CLYATT v. The STATE
• Court: Georgia Court of Appeals

Page 417

192 S.E.2d 417

126 Ga.App. 779

David D. CLYATT v. The STATE.

No. 47078.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

July 7, 1972.

Rehearing Denied July 25, 1972.

Syllabus by the Court

1. The motion to suppress was properly overruled.

2. A six-month delay in coming to trial after the indictment, was not a denial of due process under the circumstances of the case.

3. The defendant had no standing to object to the admission of testimony and demonstration of evidence which his counsel elicited upon cross-examination without insisting on its irrelevancy.

4. (a) Under the circumstances in this case it was incumbent upon the defendant to show that (1) the juror was aware of the arrest taking place and (2) was prejudiced thereby. Defendant's counsel's statement in his place to the court as to what transpired was silent as to these critical elements.

(b) Subsequently, the court instructed the jury that they must decide the case 'upon the evidence produced before you here in the court room; you must not be influenced by anything heard or seen . . . outside the court room.' Counsel for the defendant did not renew his motion for mistrial. Hence, defendant's complaint is without merit. Lane v. State, 118 Ga.App. 688(3), 165 S.E.2d 474.

5. The verdict and judgment were authorized by the evidence.

The defendant appeals from his conviction on 4 counts of violating the Georgia Drug Abuse Control Act and enumerates as error: (1) the overruling of his motion to suppress evidence seized pursuant to a search of his apartment on February 3, 1971; (2) the admission into evidence of the various drugs seized in the search of February 3, 1971; (3) the overruling of his motion to dismiss the indictment for want of a speedy trial; (4) the overruling of his motion for mistrial based on his arrest in the halls of the courthouse before a juror; (5) the allowing over objection the demonstration of evidence of a different crime and not granting a mistrial on this ground; (6) the trial court's conviction of the defendant.

Murray M. Silver, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joel M. Feldman, Carter Goode, James H. Mobley, Jr., Atlanta, Richard E. Hicks, Roswell, for appellee.

STOLZ, Judge.

1. On February 2, 1971 at at 4:25 p.m., Atlanta Police Officer C. L. Ellington presented Judge T. C. Little of the Atlanta Municipal Court an application for a search warrant containing the following affidavit: 'Received information from a reliable and confidential informant who has furnished me information in the past 90 days that resulted in one arrest and recovery of marijuana, opium deriviates and dangerous drugs, furnished the following information on February 1, 1971. Informant was personally in the above apartment on one occasion in January 1971. Informant states that he personally saw David Cyott (sic) selling and storing narcotics and drugs at 964 Charles Allen Dr., N.E. Apt. 12 during the week of January 25, 1971. Information further states that he has observed several persons going to and from the above described location that had been observed by him as being known drug abusers.' After considering the application, Judge Little found probable cause existed and signed the warrant. Approximately 9 hours later at 1:16 a.m. on February 3rd, Detective Ellington and other officers executed the warrant and found marijuana, 42 capsules of USD, 80 tablets of LSD, and hashish.

Defendant contends that the credibility of the informant whose information was offered as probable cause was not established in the affidavit by a satisfactory showing of underlying circumstances; that the informant's conclusions were not satisfactorily shown to be credible; that the magistrate issued the warrant without making the required informed and deliberate determinations; and that the trial court considered information not brought to the magistrate.

The affidavit of Detectice Ellington showed that the informant had been in defendant's apartment on one occasion during the week of January 25, 1971; that the informant had personally observed the defendant selling narcotics and drugs; that the informant personally observed persons known to him as drug abusers going to defendant's premises; and that within the past 90 days the informant had furnished information which resulted in the arrest of one person and the recovery of various illegal drugs.

The informant's reliability was established by the affiant's statement to the effect that he had information from a reliable and confidential informant who had given him reliable information in the recent past (90 days). See Marshall v. State, 113 Ga.App. 143, 144(1) 147 S.E.2d 666; Pass v. State, 227 Ga. 730(6b), 182 S.E.2d 779; Thrall v. State, 122 Ga.App. 427, 428, 177 S.E.2d 192. The underlying circumstances by which the informant gained his information were established by his personal observations of the defendant's selling and storing narcotics and the presence of known drug abusers at his apartment within a week of the execution of the search warrant. See Sams v. State, 121 Ga.App. 46, 172 S.E.2d 473; Steele v. State, 118 Ga.App. 433(3c), 164 S.E.2d 255; Thrall v. State, supra, p. 428; Johnston v. State, 227 Ga. 387, 389, 181 S.E.2d 42; Burns v. State, 119 Ga.App. 678, 683, 168 S.E.2d 786.

The information in the affidavit on which the warrant was based was not stale. The phrase, 'the week of January 25th,' was used to protect the informant's identity. See Scull v. State, 122 Ga.App. 696, 700(2), 178 S.E.2d 720. The search warrant was taken out the day after receiving the information. Even if the informant's observations were made on the earliest day possible, the 25th, the execution was still within the 10-day period after issuance allowed by Code Ann. § 27-306 (Ga.L.1966, pp. 567, 569).

The trial court did not consider any evidence other than that considered by the issuing magistrate. The court's statement, that his practice is to talk to the officer a little bit and make a notation of that so he can refresh his memory, apparently referred to the judge's own policies in issuing search warrants generally, and does not indicate that he privately interrogated the affiant as to matters not presented to the issuing magistrate. The magistrate read the affidavit before issuing the warrant, which was tendered in evidence without objection.

The affidavit met the standards set out in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, as quoted in Johnston v. State, 227 Ga. 387, pp. 390, 391, 181 S.E.2d 42, 45, supra, to-wit: 'that the magistrate is obligated to render a judgment based upon a common-sense reading of the entire affidavit. . . .' and 'that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.'

The magistrate's determination of probable cause must, accordingly, be given great deference by this reviewing court. Enumerated errors 1 and 2 are without merit.

2. As stated in Hughes v. State, 228 Ga. 593, 594, 187 S.E.2d 135, 136 and cit., 'generally there are four factors to be considered in determining whether a failure to proceed swiftly to trial assumes due process proportions: . . .'

(a) The length of delay.-Here, a period of only approximately 6 months elapsed between the date of the defendant's indictment on May 7, 1971, and the date of his trial on November 17, 1971. 'The mere passage of time is not enough, without more, to constitute a denial of due process.' Hughes v. State, supra, 228 Ga. p. 595, 187 S.E.2d p. 137.

(b) The reason for delay.-Apparently the case was called for trial several times and continued on the State's motion based on the absence of a material witness.

(c) The prejudice to appellant.-The appellant alleges prejudice in that the person who had been arrested with him and had been present when the case was initially called for trial, was serving a prison sentence for marijuana possession in another State when the case came on for trial. Although the defendant, by innuendo, attempted to interpose that the drugs found in his apartment must have belonged to the missing witness since they did not belong to him, he had previously testified that he knew that the drugs did not belong to the missing witness.

(d) Waiver by appellant.-There was no evidence that the defendant ever objected to the continuances or filed a demand for trial within the meaning of Code § 27-1901. See Spurlin v. State, 228 Ga. 2(1), 183 S.E.2d 765. Furthermore, the defendant made no motion for continuance to secure the missing witness's attendance, nor was there evidence presented that the witness was under subpoena. Compare Spurlin v. State, supra, Hn. 2. Nor did he attempt to call as witnesses his alleged two friends, one the alleged owner of the money found in his apartment on February 3, the other the lessor of his apartment at the time of the October, 1971 raid.

Enumerated error 3 is not meritorious.

3. Enumerated error 5 complains of the demonstration in the courtroom of a bag containing what was subsequently identified as hashish and marijuana, which the defendant's landlady testified she observed him carry from his apartment, on the day before the trial commenced, and leave in a vacant lot, and which she retrieved. Her testimony was in response to the defendant's counsel's question on cross-examination, 'So far as you have known, you have never seen anything immoral or illegal?' Although counsel initially objected to the relevance of her answer as to what happened the day before the trial commenced, he thereupon pursued that line of questioning further; hence, he has no standing to complain about her responsive answer to his questions, which he himself elicited. Potts v. State, 86 Ga.App. 779(3), 72 S.E.2d 553; Scott v. State, 57 Ga.App. 187(1), 194 S.E. 844. Furthermore, the evidence was admissible to show the defendant's identity, motive, scheme, and intent. Morris v. State, 228 Ga....