Epps v. State
| Decision Date | 20 March 1975 |
| Docket Number | No. 2,No. 49976,49976,2 |
| Citation | 214 S.E.2d 703,134 Ga.App. 429 |
| Parties | Brannon EPPS v. STATE |
| Court | Georgia Court of Appeals |
Grogan, Jones & Layfield, John C. Swearingen, Jr., Columbus, for appellant.
Eldridge W. Fleming, Dist. Atty., Hogansville, for appellee.
Syllabus Opinion by the Court
Appellant was arrested on June 2, 1973, and charged with violation of the Georgia Drug Abuse Control Act (Ga.L.1967, pp. 296, 346; Ga.Code Ann. Ch. 79A-9). After arrest and indictment, appellant filed a motion to suppress alleged illegally seized evidence, a motion to quash the indictment, a demurrer to the indictment, a motion for change of venue, and a motion for production of evidence. All of these motions, except for the motion for production of evidence, were denied. Appellant was tried in the Superior Court of Troup County by a jury, convicted and sentenced to two years and a $1500 fine (the 2-year term to commence at the end of a sentence which was being served at that time). Because of constitutional questions involved, this case was transferred to the Supreme Court and subsequently transferred back to this court because a decision in another case by the Supreme Court had passed upon the constitutionality of the statute.
Pursuant to information received by the Troup County Sheriff's office on or about May 31, 1973, regarding a liquor still supposedly on a certain tract of property, an officer was sent out to the tract to investigate. There was testimony at the trial indicating that the property involved was owned by Akers Motor Lines. While conducting a search of the premises, the officer came across a convered hole in the ground. The officer looked inside the hole and discovered packages of what appeared to be marijuana. At that time some of the substance was removed and some was left in the hole, and surveillance was set up around the site. On the third day of the surveillance, June 2, 1973, two black males were seen approaching the area. One of the men allegedly stopped at a distance approximately 250 feet from the hole while the second man, the appellant herein, proceeded towards the hole. There was testimony at the hearing on motion to suppress, that appellant went to the hole and placed something in it, at which time the officers maintaining the surveillance emerged and arrested him. The officers also arrested the second man, a juvenile, who was the brother of the appellant. The substance which had been placed into the hole appeared to be (and was in fact) marijuana.
Appellant, in his appeal from the judgment of conviction and sentence sets out twelve enumerations of error which will be dealt with individually.
1. Appellant's first enumeration of error, and his main contention, is that the trial court erred in overruling and denying his motion to suppress evidence.
The evidence authorized a finding by the trier of the facts on the motion to suppress, (a) that in the first instance the finding of the hole and appropriation of a part of the contents, all out in an open field is a matter about which the defendant can not complain, he being neither the owner, tenant upon, invitee upon, or even present at the time the premises were searched. This area was, therefore, as to him no constitutionally protected area as in Texas v. Gonzales, 388 F.2d 145 (5th Cir.) and Brock v. United States, 223 F.2d 681 (5th Cir.). (See also, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, and Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898) and, (b) the finding of marijuana in the hole, as a result of the first search and seizure and the subsequent appearance of the defendant three days later, and his approaching the hole and putting something therein established sufficient probable cause to authorize his arrest and the subsequent search and seizure of the substance placed in the hole by him on that occasion. See, Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879.
2. Enumeration of error 2 presents appellant's constitutional attack on the statute (Ga.L.1967, pp. 296, 346; Ga.Code Ann. ch. 79A-9) under which defendant was convicted. The questions raised about the attack have been decided adversely to defendant. Blincoe v. State, 231 Ga. 886, 204 S.E.2d 597.
3. Appellant asserts as error that the trial court, during the testimony of one of the witnesses, sustained an objection which was improperly made. The witness was asked a question by appellant's attorney and the prosecutor instructed the witness, 'Don't answer that question,' to which the judge replied, 'Objection sustained.' Appellant's counsel then stated, 'I haven't heard an objection,' whereupon the prosecutor made a proper objection stating the grounds. Although the sustaining of the state's improper objection is error, no substantial right of the appellant was violated due to the fact that immediately subsequent to appellant's counsel's remark, the state made a proper objection which was then sustained by the trial judge. The error, if any, was therefore harmless error. Section 61 of the Civil Practice Act (Ga.L. 1966, pp. 609, 664; Code Ann. § 81A-161).
4. In appellant's fourth enumeration of error he asserts that certain testimony was erroneously admitted with regard to the boundaries and ownership of the land upon which appellant was arrested and the evidence seized. Buddy Wright, an employee of Akers Motor Lines, Inc., identified a plat as the property owned by his employer and testified that the hole from which the evidence was removed was located on that property. On cross examination, the witness admitted that he did not know the precise location of the boundaries but had consulted with another person who had infomed him. The witness stated that he was testifying from knowledge that he had that the property owned by Akers Motor Lines had been graded off and cleared and that the hole was about 80 feet into the area previously closed. Appellant objects to this testimony which he asserts was based upon hearsay. The trial judge instructed the jury to disregard part of the witness' testimony in which he stated that Mr. Preston had informed him that the actual property lines were the power lines at the back of a tract which would place the hole at least 100 feet within Akers' property. This testimony was hearsay and the trial judge's instructions appeared to be adequate in light of the fact that the witness also identified a plat which was introduced and testified that the hole was on their property and he furthermore testified that he had personal knowledge of what land had been graded off by Akers when the terminal was constructed. Therefore, the admission of testimony was proper and the jury was entitled to weigh the probative value, if any.
5. Appellant, in his 5th enumeration of error, submits that the marijuana found in the hole originally was improperly admitted and that it had no probative value and was not shown to be connected in any way to appellant. Among the evidence seized and introduced was the marijuana removed from the hole by the officers upon discovery of the hole, the marijuana left in the hole during the surveillance and also the marijuana deposited in the hole during the surveillance. Appellant was charged in the indictment with possession of more than one ounce of marijuana. The marijuana which the officers testified was deposited in the hole during the surveillance was in excess of one ounce and was of itself sufficient for conviction. Where, as in this case, there was testimony to the effect that the appellant walked into the area and proceeded straight to the hole and deposited what was found to be contraband similar to that already discovered there, the evidence admitted tends to show that appellant's knowledge of and control over the stash and the marijuana therein was more probable than it would have been had the evidence not been introduced and is therefore admissible as one of the circumstances surrounding the transaction.
6. In enumeration of error 6, appellant claims error in the evidentiary admission of certain of the contraband allegedly seized at the scene of the crime, on the grounds that the state failed to establish a chain of evidence. Appellant states that the showing required to establish the chain of custody of items is set forth in the case of Pittman v. State, 110 Ga.App. 625, 139 S.E.2d 507, which states, 'In a criminal prosecution for driving under the influence of alcohol, evidence of the result of their blood alcohol tests generally must be accompanied by evidence identifying the blood analyzed with the person from whom it was taken and showing the chain of custody of the blood from the time it was taken to the time it was analyzed, and by expert testimony showing the probative value of the test result on the question of intoxication.' It is well settled that where the results of a chemical or other technical analysis of an item are sought to be introduced into evidence, it must be shown with reasonable certainty that there has been no alteration or substitution of the item. And, in such a case the test of reasonable certainty is not met where there is missing a vital link in the chain of possession of the item. See, 29 Am.Jur.2d, Evidence, § 774; Robinson v. Commonwealth, 212 Va. 136, 183 S.E.2d 179. Factors to be considered in making a determination of whether physical objects connected with commission of a crime are substantially in the same condition as when the crime was committed, so that they can be admitted into evidence, or the nature of the article, circumstances surrounding its preservation and custody, and the likelihood of intermeddlers tampering with it. If upon consideration of such factors the trial judge is satisfied that in...
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