Giddens v. State

• Decision Date: 23 March 1981
• Docket Number: No. 60223,60223
• Citation: 274 S.E.2d 595,156 Ga.App. 258
• Parties: GIDDENS v. The STATE.
• Court: Georgia Court of Appeals

Page 595

274 S.E.2d 595

156 Ga.App. 258

GIDDENS v. The STATE.

No. 60223.

Court of Appeals of Georgia.

Argued July 1, 1980.

Decided Oct. 10, 1980.

Rehearing Denied Oct. 28, 1980.

Certiorari Denied Nov. 26, 1980.

Certiorari Denied March 23, 1981.

See 101 S.Ct. 1733.

J. Converse Bright, Valdosta, Brooks E. Blitch, III, Berrien Sutton, Homerville, for appellant.

Vickers Neugent, Dist. Atty., Charles R. Reddick, Lew S. Barrow, Asst. Dist. Attys., for appellee.

McMURRAY, Presiding Judge.

Law enforcement officers, conducting drug related investigations in Berrien County and Lowndes County, were conducting surveillances of certain residences. Defendant was placed under surveillance, after he visited one of these residences, and was trailed to a location in Berrien County where he disappeared into a field near the Georgia Sheriff's Boys Ranch. The officer, upon making inquiry at the ranch, learned the defendant's identity and after reporting back to his superiors, returned the next day with additional officers to the field.

The field was surrounded by a wire fence (four strands of barbed wire) and on the field was a storage building in which the officers found marijuana that was being processed. The building also contained hoses, fertilizer and cultivating equipment. The officers also found marijuana growing amidst the corn planted in the field. The officers withdrew and set up a surveillance on the building which was the only building on the field.

Several days later the officers felt that they had been spotted by the defendant while attempting to set up an additional surveillance so they arrested him at that time. Following the arrest the officers and defendant traveled to the field where certain evidence, including substantial quantities of marijuana (plants ranging 6 to 15 feet in height), was confiscated.

The defendant's motion to suppress evidence confiscated from the field and the building thereon was denied. The defendant was indicted, convicted of the offense of possession of marijuana with intent to distribute and sentenced to 10 years' imprisonment, and payment of a fine of $5,000. The last 4 years of the sentence were to be served on probation upon payment of the fine and costs of $3,032.30, and other conditions. Defendant appeals. Held :

1. The defendant contends that both the visit to the field by the officers prior to his arrest and the visit subsequent to his arrest during which the evidence was actually seized were unreasonable searches and seizures. The defendant relies heavily upon the reasoning of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, arguing that he had a reasonable expectation of privacy in the cornfield. The state relies upon the so-called "open field" doctrine set forth in Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 68 L.Ed. 898, and emphasizes that the uncontroverted evidence shows that the building located on the property contained no personal items or facilities for sleeping or any other facilities which would infer that the building was used as an office or dwelling.

There simply is no question involved in this case which brings into play the traditional rules applied to one's dwelling or surrounding curtilage. Various cases cited by the parties dealing with such issues are inapposite. Particularly, Kelley v. State, 146 Ga.App. 179, 245 S.E.2d 872 is inapposite as in that case the defendant's expectation of privacy arose from the fact that the area in question was within the curtilage of a dwelling (a tent).

Law enforcement officers did not see any of the growing marijuana or that which was being processed until after they had crossed the wire fence surrounding the field. The wire fence of a type commonly used to restrict movement of livestock posed little obstacle to the entrance of law enforcement officers who were only later aware that the gate to the field was locked. The officers received no notice prior to their entry that the owner or rightful occupant forbade such entry. See Code Ann. § 26-1503(b)(2) (Ga.L.1968, pp. 1249, 1285; 1969, pp. 857, 859; 1979, p. 764).

Although Katz v. United States, supra, in setting forth the reasonable expectation of privacy test has altered the criteria for determining the applicability of the Fourth Amendment protection against unreasonable search and seizure when compared with some earlier cases, we do not believe that there has been any implied overruling of Hester v. United States, supra. Protected expectations of privacy under Katz v. United States, supra, must be reasonable. We do not believe that any expectation of privacy defendant had in regard to this field was reasonable under these circumstances.

We continue to adhere to our position that Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898, supra, remains a viable decision of the Supreme Court of the United States and binding on this court. See in this regard Anderson v. State, 133 Ga.App. 45, 46(1), 209 S.E.2d 665; Reece v. State, 152 Ga.App. 760, 761(1A), 264 S.E.2d 258; Patterson v. State, 133 Ga.App. 742, 745(2), 212 S.E.2d 858. See also Kennemore v. State, 222 Ga. 252, 254(2), 149 S.E.2d 471.

2. During the state's closing argument to the jury the district attorney stated: "I don't believe any farmers were left on this jury ... They were all stricken ..." Defendant moved for mistrial on the basis of this argument contending that it injected facts which were not in evidence. However, a prosecutor is entitled to argue to the jury his version of what took place at the trial. Bryant v. State, 146 Ga.App. 43, 44(2), 245 S.E.2d 333.

An additional motion for mistrial was made in regard to another portion of the state's closing argument to the jury. The language in question, however, did no more than call to the attention of the jury that the state has an interest in proper law enforcement (in this case, stopping the drug traffic). This argument was proper. Demps v. State, 140 Ga.App. 90, 91(2), 230 S.E.2d 97.

3. Defendant contends that the trial court ignored the sentence hearing procedure required by Code Ann. § 27-2503 (Ga.L.1974, pp. 352, 357), determined the sentence prior to the sentence hearing, and drafted the sentence prior to the hearing, simply filing this pre-prepared sentence after the pre-sentence hearing. Pretermitting the issue of whether such conduct is harmful error, the factual allegations upon which these contentions are based appear only in defendant's brief and are not supported by the record submitted to this court by the clerk of the trial court. This court may not decide cases upon the basis of factual allegations appearing only in the parties' brief and unsupported by the record from the trial court. Young v. State, 144 Ga.App. 712(1), 242 S.E.2d 351. The burden of showing harmful error rests on the appellant. Raymond v. State, 146 Ga.App. 452, 453(2), 246 S.E.2d 461.

4. The sentence of 10 years provided that the defendant be permitted to serve the last 4 years on probation conditioned on defendant's having paid the $5,000 fine assessed against him within 90 days of the date of final judgment on remittitur of any appeal and contingent upon the defendant's complying with a number of other conditions, including payment of court costs in the amount of $3,032.30, composed of the following expenses: $1,080 juror costs, $132 witness fees, $150 court reporter, $108 bailiff fees, $1,484.30 sheriff's cost for guarding field, harvesting and preserving the evidence and $78 transcript of evidence. Defendant was to begin paying the above at the rate of $200 per month beginning 3 months after defendant's release from prison, same to be paid through the probation department and remitted directly to the county treasury when collected. The remaining error enumerated is to the assessment of the $3,032.30 court cost as a condition of probation. Clearly, not all of the costs above could be taxed against the defendant as court costs.

Generally, a defendant in a criminal case can be taxed with costs. "If convicted, judgment may be entered up against him for all costs accruing in the committing ... (or) ... trial courts, and by any officer pending the prosecution." See Code Ann. § 27-2801 (Constitution of 1976, Art. I, Sec. I, Par. XXI; Code Ann. § 2-121). Costs generally include all charges fixed by statute as compensation for services rendered by officers of the court in the progress of the cause. See Markham v. Ross, 73 Ga. 105 (1(b)). Authority for fee costs for special criminal bailiffs is found in Code § 24-3202. The sheriff and court reporter are also officers of the court.

The defendant contends that the assessment of costs here is not authorized by statute and is thus illegal. Defendant argues further that the cost could not be intended to be part of the fine because the sentence also includes the maximum fine allowed under the provisions of Code § 79A-811(j)(3) (Ga.L.1979, p. 1258). In Peters v. State, 9 Ga. 109, it was held that railway mileage fare could not be included in the bill of costs against the defendant charged with burglary. Indeed, in Stamper v. State, 11 Ga. 643(2), it was held that "all officers charging costs, ... must always shew the authority of the law to do so." It is contended here that the expenses of the sheriff in guarding the marijuana field and harvesting and preserving it would not fall within the definition of costs which can be charged to the defendant. See Code § 24-2823 (as amended, Ga.L.1943, p. 591; 1945, p. 144; 1945, p. 221; 1955, pp. 383, 384; 1968, pp. 988, 991; 1976, pp. 702, 705; 1979, pp. 988, 992) as to costs in criminal cases.

But the above expenses have not been taxed against this defendant as costs. Merely probation has been conditioned upon the payment of same in accordance with the conditions of probation. Code Ann. § 27-2711 (Ga.L.1956, pp. 27, 32; 1958, pp. 15, 23; 1965, pp. 413, 416) provides for certain terms and conditions of probation. However,...