Davis v. State
| Decision Date | 27 May 1975 |
| Docket Number | No. 1,No. 50364,50364,1 |
| Citation | 217 S.E.2d 343,135 Ga.App. 203 |
| Parties | W. L. DAVIS v. The STATE |
| Court | Georgia Court of Appeals |
Darryl R. Vandeford, Lawrenceville, for appellant.
Bryant Huff, Dist. Atty., Dawson Jackson, Richard Winegarden, Robert A. Barnaby, II, Asst. Dist. Attys., Lawrenceville, for appellee.
Appellant was tried and convicted of three counts of violations of the Georgia Uniform Narcotic Drug Act (Code Ann. Ch. 79A-8), to wit: Count I-sale of cocaine on May 9, 1974, and Counts II and III, respectively-possession and sale of cocaine on June 15, 1974. The evidence as to Counts II and III was that on June 15 an undercover agent was informed by appellant that he could get some 'real good' cocaine. The agent then followed appellant to the home of one Higgins and arranged for the agent to buy two 'dime bags' from Higgins. Appellant also stated that he wanted to buy a bag. Higgins then laid three small bags on the kitchen table containing a white powdery substance referred to by both Higgins and appellant as cocaine. The agent picked up two bags (which forms the basis of Count III) and appellant picked up the other (which forms the basis of Count II). The agent later conducted a chemical field test on the contents of the two bags he bought but the state did not introduce any results of tests conducted at the State Crime Laboratory. The contents of the bag bought by appellant were never tested. Held:
1. The appellant made a motion for directed verdict of acquittal at the close of the state's case, and its denial is appellant's enumeration of error 1. Appellant contends that as to Count I, the chain of custody was broken because the undercover agent took the bag of cocaine home with him after the purchase and kept it overnight and that while at the State Crime Laboratory, the bag was kept in a locker accessible to some 13 other chemists. At trial, the undercover agent testified that the substance he bought from appellant and kept overnight was the same substance he turned over to police officials the next morning and that it was unaltered except for a small sample which he used to conduct a field test. In proving chain of custody, the state is not required to show that the substance was personally guarded each minute it is in one's custody, and in the absence of a showing to the contrary, the chain of custody is not thereby broken. White v. State, 230 Ga. 327, 334, 196 S.E.2d 849; Scudiere v. State, 130 Ga.App. 477(10), 203 S.E.2d 581. Concerning the custody of the substance by the chemist at the State Crime Laboratory, the chemist who analyzed it testified that he put it in a small evidence bag and sealed the bag. He then placed that bag, along with others, in a larger bag and sealed that bag with staples. He then placed the bag in the main storage locker where it remained until the morning of the trial. When he retrieved the bag it was undisturbed and still sealed with staples. In the absence of evidence of tampering with the substance, the chain of custody has not been shown to be broken.
As to Counts II and III, the appellant contends the evidence was insufficient to show the substance was cocaine in that it was never tested at the State Crime Laboratory and never introduced into evidence. The state is not required to introduce the illegal drug itself into evidence. See E.g., Reid v. State, 129 Ga.App. 662(2), 200 S.E.2d 456. The undercover agent testified that he had a great deal of experience with cocaine and had received formal training on identification of cocaine. He testified further that both appellant and Higgins called the substance cocaine on more than one occasion. Additionally, he conducted a chemical field test on the contents of the two bags that form the basis of Count III and it showed positive for cocaine.
We have found no case where the results of a chemical field test have been held inadmissible, though it would appear that its reliability would be tested by defense cross examination and rebuttal and that the weight to be given it by the jury would be an appropriate subject for defense argument. See Wallace v. State, 134 Ga.App. 708(5), 215 S.E.2d 703. In addition, the fact that the bag that forms the basis of Count II, was never analyzed, does not demand acquittal, because the jury could conclude from the identical physical characteristics of all three bags that it also contained cocaine. See Scott v. State, 133 Ga.App. 466(1), 211 S.E.2d 415; Rogers v. State, 130 Ga.App. 176(5), 202 S.E.2d 560.
2. Enumeration of error 2 complains that appellant was required to proceed with trial without having first been arraigned under Ga.L.1966, pp. 430, 431 (Code Ann. § 27-1401) and Code § 27-1404. The record clearly shows that upon being called for arraignment, appellant's counsel stated: 'Your Honor, we will waive formal arraignment and request a list of state's witnesses, a copy of the indictment and plead not guilty.' This statement amounts to an unconditional waiver of arraignment. The furnishing of a copy of the indictment and a list of witnesses to appellant was not by this statement nor by law, made a prerequisite to a valid waiver of arraignment.
Furthermore, the presence of the appellant at the arraignment was also waived by failure of his counsel to object to proceeding in his client's absence at the arraignment. Counsel did not object to this absence until after verdict was returned on appeal of the case. Sellers v. State, 82 Ga.App. 761, 763, 62 S.E.2d 395, 396. Language in Wells v. Terrell, 121 Ga. 368, 49 S.E. 319, that arraignment, or waiver thereof, in the prisoner's absence is illegal, appears to apply only where counsel attempts to enter a plea of guilty for his client. See also, Chastain v. State, 75 Ga.App. 880, 45 S.E.2d 81.
3. Enumeration of error 3 contends that appellant was not given a list of witnesses by the state as required by Code § 27-1403, Ga.L.1966, pp. 430, 431 (Code Ann. § 27-1403). The record shows that prior to arraignment in August, 1974, appellant made a written demand for a list of witnesses and also made oral demand for same at the arraignment. The list was not furnished until the jury was struck the day before the trial commenced. Upon objection at trial, the trial judge suggested to defense counsel that it would be receptive to a motion for mistrial or for continuance 'on the grounds that you have not had adequate...
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