Evans v. State, 71058
| Decision Date | 13 November 1985 |
| Docket Number | No. 71058,71058 |
| Citation | 338 S.E.2d 48,176 Ga.App. 818 |
| Parties | EVANS v. The STATE. |
| Court | Georgia Court of Appeals |
Rodger E. Davison, Royston, for appellant.
Lindsay A. Tise, Jr., Dist. Atty., for appellee.
The defendant, Billy Joe Evans, appeals his conviction of trafficking in marijuana, unlawful possession of alcoholic beverages and possession of a distilling apparatus. Sheriff Larry Sanders of Hart County, Georgia, had received information about marijuana growing on property adjacent to a mobile home in which the defendant lives. He placed the property under observation and then obtained a search warrant. It was issued in the name of Manuel Evans, the defendant's father. The sheriff was assisted by GBI agents in executing the search warrant. After the defendant observed the officers in the execution of the warrant, he went to the sheriff and admitted that "it's mine ... everything was his." The officers confiscated a distilling apparatus, containers filled with alcohol which tested out at 42 proof to 92 proof, and several boxes of marijuana leaves; and pulled up approximately 1,600 growing marijuana plants.
GBI Agent Wakefield saw the defendant the following day in the jail in Hart County and advised him of his Miranda rights and obtained a statement from him in which he admitted the marijuana and the "still" were his property alone. Defendant told him he ran the still two or three times a month and made six gallons on each run but had not sold any of the marijuana. The defendant appeals his conviction of all counts. Held:
1. It is alleged that Evans' confession is inadmissible because he was under the influence of drugs administered by his doctor prior to giving a statement to the GBI. The defendant was jailed on the afternoon of August 31, 1982, and Sheriff Sanders saw that he was upset and called a doctor. The doctor found defendant tense, anxious and restless, and gave him a shot of chlorpromazine, a tranquilizer. It has an effect upon the brain that produces a tranquilization-sedation effect. The doctor testified that he "would anticipate more the tranquilization and sedation without that much impairment to his mental faculties, but [if] a person who was sensitive to it," his ability to think and reason could be affected. If this occurred, an observer would notice an accompanying sedation or drowsiness. When the doctor saw him on September 1, during the mid-part of the day, he had given him one shot early in the evening of the previous day, another shot near midnight, and the third shot of the tranquilizer prior to him giving his confession to the GBI. He was of the opinion that defendant was in possession of his faculties and there was mental clarity when he saw him before giving him the third shot. The GBI agent was of the opinion that defendant was not intoxicated by alcohol or drugs and that nothing was physically wrong with him when he made his statement. The trial court found the confession to be freely and voluntarily given and admitted it in evidence.
Evans contends that it was error to admit his confession because "it did not meet the expressed standards in Beecher v. Alabama, 408 U.S. 234 [92 S.Ct. 2282, 33 L.Ed.2d 317]...." Beecher involved a suspect who was shot in his leg when he fled from the police. A review of those facts reveals that a loaded gun was placed against defendant's face, while another police officer pointed a rifle against the side of defendant's head. After defendant denied his guilt, the officer called him a liar and said: "If you don't tell the truth, I am going to kill you." An officer fired a rifle into the ground next to the defendant's head, and he confessed. One hour after his arrest, the defendant was taken to a hospital because the gunshot to his leg "had blown most of the bone out of [that] leg" and he was given two injections of morphine for the pain. The defendant claims he remembers nothing after receiving the morphine but an officer said he gave another confession. The Supreme Court reversed the first conviction which was based on the first confession. The second conviction was based upon the second confession, made one hour after the shooting, but after the defendant had been administered two shots of morphine. The Supreme Court again reversed, holding that the "oral confession, made one hour after the arrest ... was surely a part of the same stream of events" as those which necessitated reversal of the first conviction. Id. It was found that the circumstances of the case "compels the conclusion that this petitioner's [confession was] the product of gross coercion." Id. It is obvious that the facts of the instant case are distinguishable from those of Beecher. Beecher was reversed on the basis of gross coercion, and the basis for the present enumeration of error is a claim of lack of comprehension on the part of a defendant after receiving two shots of a tranquilizer on the day preceding the confession, and a third shot a few hours before a second confession.
Whether a suspect is mentally capable of, and did make a knowing and intelligent waiver of, his Miranda rights is a factual and credibility determination for the trial court and will not be disturbed on appeal unless clearly erroneous. Findley v. State, 251 Ga. 222, 226, 304 S.E.2d 898; Mullis v. State, 248 Ga. 338(9), 282 S.E.2d 334; LaRue v. State, 171 Ga.App. 371, 372-373, 319 S.E.2d 468. There is ample evidence to support the findings of the trial court and its ruling is not clearly erroneous.
2. The state confiscated almost two pounds of marijuana which had been stripped from the plants' stalks and placed in boxes. The 1,600 growing plants had been burned. The State Crime Lab determined that the substance confiscated was marijuana. The search and arrest of the defendant occurred on August 31, 1982. Indictment was returned during the February Term of 1983. On February 20, 1984, defendant filed a "Motion to Permit Lab Analysis," in which he asked "to examine the material evidence against him and to verify the tests that have been performed to determine the alleged identity of the substances involved in the indictment as being marijuana and non-tax paid liquor." However at trial, the state argued that the request was not timely, as the motion was not filed until February 20, 1984, and the case had already been continued from the last term. Counsel for defendant then argued that "even if my motion was timely, the evidence had been destroyed the same day that it was recovered so it would have been impossible for me to be timely." The court inquired of counsel that what he had requested was to analyze the substance, so he should address "the two pounds" possessed by the crime lab. Counsel replied: ...
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