Dunkum v. State, s. 51632

• Decision Date: 05 April 1976
• Docket Number: 51633,51703 and 51704,No. 1,Nos. 51632,s. 51632,1
• Citation: 226 S.E.2d 133,138 Ga.App. 321
• Parties: R. F. DUNKUM v. The STATE. W. A. FAIN v. The STATE. M. A. LEWIS v. The STATE (two cases)
• Court: Georgia Court of Appeals

Page 133

226 S.E.2d 133

138 Ga.App. 321

R. F. DUNKUM v. The STATE.

W. A. FAIN v. The STATE.

M. A. LEWIS v. The STATE (two cases).

Nos. 51632, 51633, 51703 and 51704.

Court of Appeals of Georgia, Division No. 1.

April 5, 1976.

Howard, Howard & Hall, William V. Hall, Jr., Decatur, for appellants R. F. Dunkum and W. A. Fain.

Glenn Zell, Atlanta, for appellant M. A. Lewis.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Asst. Dist. Atty., Atlanta, for appellee.

STOLZ, Judge.

Two cars, one carrying appellant Fain, the other carrying undercover narcotics agent Price and two co-indictees of Fain, pulled into and parked in the parking lot of a closed nightclub. Fain and his co-indictees exited from their cars and entered the empty building. Shortly therafter they reappeared, carrying three garbage bags filled with marijuana. Appellants Dunkum and Lewis followed the three out of the building. The bags were placed in the trunk of the agent's car where their contents were examined. As agent Price started to pay for the drugs, police cars arrived on the scene and all persons present were arrested. Appellants Dunkum, Lewis and Fain were charged with the offense of selling more than one ounce of marijuana, and they appeal from their convictions.

1. Appellants enumerate as error the trial court's order overruling their demurrers, motions to quash, and motions to dismiss the indictment. These motions all attack the constitutionality of Code Ann. § 79A-811(j), an issue which has been decided adversely to the appellants. Lord v. State, 235 Ga. 342, 219 S.E.2d 425. This contention is without merit.

2. A review of the record shows that it was not error for the trial court to overrule defendants' motions for directed verdicts.

3. The evidence was sufficient to support the verdicts.

4. Appellants assign error on the trial court's failure to require the state to reveal the name of the informant who conducted the preliminary negotiations for the drug deal. Basically, their contention is that this informant was a decoy, whose identity they were entitled to know. However, the transcript reveals that this informant was not present when the transaction took place; he had merely provided the initial contact between Price and the defendants and could not have been convicted himself of this sale. Therefore, this contention is also without merit. See Crosby v. State,90 Ga.App. 63, 82 S.E.2d 38; Butler v. State, 127 Ga.App. 539(2), 194 S.E.2d 261.

5. Appellants Dunkum and Fain contend that the trial court erred when it refused to charge, on request, that the defendants could be convicted of a criminal attempt rather than the completed crime. The court, using the exact language of the statute, charged as follows: 'Deliver or delivery means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.' (Emphasis supplied.) Code Ann. § 79A-802(g). We think that the charge, as given, amply conveyed to the jury that the defendants could be convicted of unlawfully selling and delivering more than one ounce of marijuana if the jury found that the defendants had attempted to transfer the drugs. This enumeration of error is without merit.

6. The trial court also charged: 'The law of this State reads as follows: It is unlawful for any person to possess, have under his control, sell or possess with intent to distribute marijuana.' Appellants Dunkum and Fain contend that this charge was confusing, that it failed to distinguish possession from sale, and that it failed to define sale or delivery. In light of the fact that the judge specifically told the jury that defendants were charged with unlawful sale and delivery, and further defined delivery, this contention has no merit.

7. Appellants Dunkum and Fain contend that the jury should have been instructed that they could convict the defendants of possession of less than one ounce of marijuana. Appellant Lewis contends that the jury should have been instructed that it could recommend misdemeanor punishment under Code Ann. § 26-3101. The trial judge recharged the jury that: 'In reference to the charge on marijuana the Court instructs you that if you should find from your deliberations, and this is purely a question for the jury, along with all other questions for the jury and your determination alone, if you should find the amount of marijuana was less than one ounce not involved in this matter, as contended for by the State, then in that event, and you also found from all the material evidence and circumstances connected with the case, and surrounding the case, that the defendant is guilty, in that event you would simply find the defendant guilty of a misdemeanor and that verdict would read: 'We, the jury, find the defendant guilty of a misdemeanor.' That would mean you found marijuana as contended for by the State but you found there was one ounce or less than one ounce of marijuana in the case.'

We have repeatedly stressed that, in reviewing the correctness of a given charge, the trial court's instructions must be considered in their entirety. See, e.g., Tate v. Gibson Products Co., 137 Ga.App. 615, 224 S.E.2d 465; Hilton v. State, 233 Ga. 11(2), 209 S.E.2d 606. Moreover, since the jury no longer performs any sentencing function, the judge was not required to instruct the jury as to recommending misdemeanor punishment. Compare Willingham v. State, 134 Ga.App. 603(6), 215 S.E.2d 521. These contentions have no merit.

8. Additionally, appellant Lewis claims that the district attorney was required to disclose that one of his co-indictees Meredith Gloer, had been offered leniency in return for her testimony against the other defendants. While a concealed promise of leniency made to a defendant's attorney, although not to the defendant herself, may require a new trial (as to this, see e.g., Newman v. State, 334 N.E.2d 684 (Ind.1975)), this court will not review this claim where the appellant, having invoked no ruling from the trial court, raises the issue for the first time on appeal. See Clark v. State, 138 Ga.App. 266(8), 226 S.E.2d 89. Where evidence of such an agreement is newly discovered, having come to the appellant's attention after an appeal has been docketed and while supersedeas is effective, his remedy lies in a petition for habeas corpus relief.

9. Appellants assert that the trial court committed error in failing to suppress evidence seized by police officers during an 'inventory' search of Fain's automobile performed two days after his arrest. At trial, the state for the first time offered evidence of less than one ounce of marijuana which had been found in the trunk of defendant Fain's car. Counsel moved to suppress the evidence but the motion was overruled.

Initially we note that defendants Dunkum and Lewis have no standing to object to the search of Fain's automobile. The right to suppress evidence seized in an unreasonable search is personal and these defendants, not having been charged with possession of the seized item, were not entitled to object to the search of an automobile in which they had no proprietary or possessory interest. Mitchell v. State, 136 Ga.App. 390(2), 221 S.E.2d 465; Dixon v. State, 231 Ga. 33(5), 200 S.E.2d 138; Dutton v. State, 228 Ga. 850(1), 188 S.E.2d 794. The motion to suppress the marijuana was properly denied as to defendants Dunkum and Lewis.

As to defendant Fain, this enumeration of error is well taken. The state seeks to justify the search as an inventory of the car, made pursuant to standard police department procedure. This justification is necessarily premised on the validity of the impounding. State v. McCranie, 137 Ga.App. 369, 223 S.E.2d 764. However, this was not a situation where the car had to be removed from a public highway in the interest of public safety, e.g., Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), nor was the automobile forfeited under the authority of a statute, e.g., Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730, reh. and modif. den. 386 U.S. 988, 87 S.Ct. 243, 18 L.Ed.2d 243 (1967). In fact, Officer Price indicated in his testimony that it is not even normal police practice to impound a vehicle which is not involved in the crime and which poses no threat to public safety (T. 56). At the time of the impounding,...