Dye v. State
| Decision Date | 31 January 1986 |
| Docket Number | No. 71267,71267 |
| Citation | 341 S.E.2d 469,177 Ga.App. 813 |
| Parties | DYE v. The STATE. |
| Court | Georgia Court of Appeals |
W. Washington Larsen, Jr., Dublin, for appellant.
James L. Wiggins, Dist. Atty., Michael T. Solis, Asst. Dist. Atty., for appellee.
Appellant was convicted on a two-count indictment which charged him with possession of cocaine and conspiracy to distribute cocaine. He appeals.
1. The first enumeration is that the trial court erred in overruling appellant's general demurrer to count one of the indictment which set forth the cocaine possession charge. This enumeration is based upon the absence from the indictment of a specific allegation that appellant "knowingly and intentionally" possessed cocaine.
Initially, appellant urges that failure to allege his "knowing and intentional possession" of the drug renders the indictment defective in that it does not properly apprise him of the charge against him. The indictment alleged that appellant, "on the 21st day of May [1984], in the State and County aforesaid, did then and there unlawfully possess a controlled substance, to wit: cocaine, in violation of the Georgia Controlled Substances Act...." The language of the indictment tracks exactly the language of the applicable section of the Code. OCGA § 16-13-30. It has long been the rule in Georgia that when an indictment is couched in the language of the Code, it will be deemed sufficiently technical and correct to withstand a general demurrer. Stewart v. State, 246 Ga. 70, 268 S.E.2d 906 (1980); Eubanks v. State, 217 Ga. 588, 124 S.E.2d 269 (1962). See also OCGA § 17-7-54. Here, the indictment charged appellant with the unlawful possession of cocaine on May 21, 1984 and it could not have been more specific. Lord v. State, 235 Ga. 342, 219 S.E.2d 425 (1975).
Appellant further contends that the omission of specific allegations with regard to intent and knowledge constitutes a failure to charge essential elements of the offense. The indictment followed the exact language of the Code, charging that appellant had "unlawfully" possessed cocaine. The allegation that appellant acted "unlawfully" is sufficient to encompass both the intent to commit the proscribed act and the knowledge necessary to form that intent. See generally McDonald v. State, 222 Ga. 596, 151 S.E.2d 121 (1966); OCGA § 16-2-1. The language of this indictment, couched as it was in the terms of the Code, was sufficient to allege each essential element of the offense charged. There was no error.
2. Appellant urges that his conviction as to count two was improper because the only evidence of a conspiracy consists of his conversations with a police informant rather than with a co-conspirator. See Sears v. United States, 343 F.2d 139, 142(4) (5th Cir.1965); United States v. Wray, 8 F.2d 429(4) (5th Cir. 1925).
Appellant was not indicted for and convicted of conspiracy with a government agent, but with a third party supplier from whom he received the cocaine which he intended to sell to the government agent. Appellant's taped conversations, admitted at trial without objection, were sufficient to show that he and an unidentified third party were in agreement that appellant would act as a retail seller for the third party's cocaine. Evidence of this type of "chain conspiracy" has long been recognized as sufficient to sustain a conviction for conspiracy to sell a controlled substance. See generally Kilgore v. State, 251 Ga. 291, 298-300, 305 S.E.2d 82 (1983). There was no error.
3. Appellant had a subpoena served upon the State chemist who had performed the analysis on the alleged cocaine. The subpoena commanded that the analyst appear at trial and bring with him all graphs, charts, records, notes and other material related to his investigation and his finding that the substance was cocaine. The State moved to quash appellant's subpoena, citing policy considerations against releasing all materials associated with a crime lab investigation. The State did supply a copy of the chemist's report that the substance was cocaine. The trial court quashed the subpoena and appellant assigns this ruling as error.
It is clear that appellant would not be entitled to secure all the documents, records and data produced by a State Crime Laboratory investigation had he filed a motion for discovery pursuant to OCGA § 17-7-211. Walker v. State, 168 Ga.App. 130, 308 S.E.2d 404 (1983). If a defendant is served with a copy of the report indicating the results of tests on the substance analyzed, the requirements of the applicable discovery statute have been satisfied. Sears v. State, 161 Ga.App. 515, 288 S.E.2d 757 (1982). The question thus becomes whether a defendant may secure, through use of a subpoena, that which he could not acquire through discovery.
This court has recognized that, under certain circumstances, due process dictates that a subpoena may be used to force production of documentary evidence in a criminal case, even in the face of government regulations restricting or prohibiting disclosure of such evidence. Buford v. State, 158 Ga.App. 763, 282 S.E.2d 134 (1981). However, in Buford, a subpoena provided the only means for the defendant to acquire evidence that "was unquestionably 'demonstrably relevant' ( [cit.] ) and material to the defense ( [cit.] )." Buford v. State, supra at 767, 282 S.E.2d 134. Appellant asserts that, as against the State's reasons for noncompliance with the broad mandate of his subpoena, the records were relevant and material. He contends that they provided him the only method by which to conduct a proper cross-examination of the State's expert and to prove that the substance in question...
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LIVERY v. State
...by the jury shall be deemed sufficiently technical and correct" to withstand a general demurrer. OCGA § 17-7-54(a); Dye v. State, 177 Ga.App. 813, 341 S.E.2d 469 (1986) (possession of cocaine), overruled on other grounds, Eason v. State, 260 Ga. 445, 396 S.E.2d 492 (1990); Miller v. State, ......
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Eason v. State
...enumerates this ruling as error. This issue was addressed in and would seemingly be controlled by the decision in Dye v. State, 177 Ga.App. 813, 814(3), 341 S.E.2d 469 (1986). Appellant urges, however, that Dye should be overruled because the holding of that case is violative of a criminal ......
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Frost v. State, A91A0074
...dwelling house without the consent of her husband or of the lienholder. The indictment says "unlawfully." Although Dye v. State, 177 Ga.App. 813, 341 S.E.2d 469 (1986), 1 dealt with an indictment which tracked the Code, which this case does not, the court expressed the view that "[t]he alle......
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Johnson v. State, A90A0655
...of the suspected cocaine. Consequently, there was no basis for her request for the State's expert's work product. See Dye v. State, 177 Ga.App. 813, 814(3), 341 S.E.2d 469. The trial court did not err in quashing defendant's subpoena to the State's 2. In her second and third enumerations, d......