Herrin v. State

• Decision Date: 21 May 1976
• Docket Number: Nos. 51934,No. 2,51935,s. 51934,2
• Citation: 227 S.E.2d 498,138 Ga.App. 729
• Court: Georgia Court of Appeals
• Parties: Van HERRIN v. The STATE (two cases)

Page 498

227 S.E.2d 498

138 Ga.App. 729

Van HERRIN v. The STATE (two cases).

Nos. 51934, 51935.

Court of Appeals of Georgia, Division No. 2.

May 21, 1976.

Al Horn, Atlanta, for appellant.

Joseph H. Briley, Dist. Atty., Reginald Bellury, Asst. Dist. Atty., Milledgeville, for appellee.

McMURRAY, Judge.

These two cases involve the same defendant and are considered together because of their similarity.

The defendant was separately tried under two indictments of unlawfully distributing marijuana in violation of the Georgia Controlled Substances Act. Motions for discovery were made and denied, and motions to quash were likewise made and denied. In case No. 51934 (No. 28553), defendant was convicted and sentenced to serve five years. In case No. 51935 (No. 28635), he was convicted and sentenced to serve 10 years. Motions for new trial, as amended, were denied, and defendant appeals. Held:

1. The motions to quash objected to the indictment because it failed to allege to whom the marijuana was unlawfully distributed and failed to allege any other specifics which would protect defendant against subsequent jeopardy, other than alleging the date of the offense. The statute makes it a crime to unlawfully possess, control, manufacture, deliver, distribute, transfer, administer, sell or possess with intent to distribute marijuana. The language of the indictments here was couched in the language of the statute, hence, they were not subject to demurrer or motion to quash for lack of sufficient specifications. See in this connection Buchanan v. State, 215 Ga. 791(3), 113 S.E.2d 609; Eubanks v. State, 217 Ga. 588(1), 124 S.E.2d 269; Schulman v. State, 94 Ga.App. 489, 95 S.E.2d 343.

2. The general rule is that evidence of guilt is not restricted to the day mentioned in the indictment, but may extend to any day prior to the date alleged, if within the statute of limitation for the prosecution of the offense. Robinson v. State, 209 Ga. 650, 652(7), 75 S.E.2d 9; McGruder v. State, 213 Ga. 259(1), 98 S.E.2d 564; Gravitt v. State, 220 Ga. 781(2), 783, 141 S.E.2d 893.

3. It is contended by defendant that the court instructed the jury that if at any time during the last four years the defendant committed the act charged in the indictment, a guilty verdict would be authorized and that the exact day of the offense was not material. But nowhere in the enumerations of error or brief has the defendant pointed out the place in the charge where such instructions were given. Both charges were quite lengthy, which points up the reason why appellant should have been specific in pointing to the exact page and place in the transcript where the instructions complained of were given.

Rule 18 (Code Ann. § 24-3618) as to structure and content of the briefs and enumeration of errors in each case has not been complied with by appellant. Citation to the particular parts of the transcript which are essential to the consideration by this court of the errors complained of, not having been set forth by appellant, no ruling is required and none is made on these enumerations of error.

4. Error is enumerated as to the alleged sustaining of an objection by State's counsel to the cross examination of the State's expert witness Price in case No. 51934, regarding this expert's failure to use certain authenticated standards in the microscopic examination of the alleged contraband. But defendant failed to cite the location of this objection in the cross examination of this witness. Again, the violation of Rule 18 (Code Ann. § 24-3618) as to structure and content of the brief and enumeration of error leaves us unable to consider this enumeration of error.

5. During the cross examination, of a state witness who allegedly purchased the marijuana from defendant, in Case No 51935, defense counsel attempted to use a transcript of a tape recording made by an investigator for the defense in talking to this witness during his investigation. The court refused to allow defense counsel to read from this unofficial transcript for the purpose of refreshing the witness' memory in trying to impeach him and held that this would not be possible. A comprehensive set of standards for sound recording has been set forth by this court in Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga.App. 207(3), 211, 88 S.E.2d 167. The requirements of the Solomon case were approved by the Supreme Court in Central of Ga. R. Co. v. Collins, 232 Ga. 790, 794, 209 S.E.2d 1. While the tape recording was not submitted in evidence and indeed the court prevented the defense from laying a proper foundation for same, nevertheless, the court erred in this instance in not allowing a thorough sifting cross examination based on the transcript of the tape and in ruling the tape and transcript thereof were inadmissible. This was error requiring the grant of a new trial in Case No. 51935.

6. Defense counsel contends he was not allowed a thorough and sifting cross examination of a state witness. He contends he sought to examine this witness as to pending criminal cases against said witness and as to the motive of said witness in testifying against the defendant. Examination of the transcript (Case No. 51935) discloses that the court refused to allow defense counsel to ask the witness how many times he had been arrested and for what he had been arrested. In Pierce v. State, 29 Ga.App. 68, 113 S.E. 47 (a two judge opinion), in a similar case, this was held to be error in denying a thorough and sifting cross examination of the witness.

But in Lovinger v. State, 39 Ga.App. 116(2), 118, 146 S.E. 346 (a three judge opinion), and Reid v. State, 49 Ga.App. 429, 176 S.E. 100 (again a mere two judge opinion), this court refused to follow the Pierce case, citing Supreme Court decisions that only conviction of crimes involving moral turpitude may be used to impeach a witness or to discredit his testimony. Here the court refused to allow the witness to be asked 'how many times he has been arrested and what he has been arrested for,' although a thorough and sifting cross examination was otherwise allowed. We are bound by such Supreme Court cases as Howard v. State, 144 Ga. 169(2), 171, 86 S.E. 540; Swain v. State, 151 Ga. 375(4a, b), 107 S.E. 40; Moore v. State, 231 Ga. 301, 302(1), 201 S.E.2d 432. See also the recent cases of Smith v. State, 124 Ga.App. 581, 583(4, 5), 184 S.E.2d 681. The court did not err in refusing to allow the defense to ask this question.

7. In examination of an expert witness for the defense, on objection, the court restricted his testimony to his own knowledge of tests performed by him. Defense counsel contended an expert may give qualified hearsay if he can authenticate the source from his studies of texts and treatises. An expert's opinion may be based in part on hearsay, and it goes to his weight and credibility, not to its admissibility. City of Atlanta v. McLucas, 125 Ga.App. 349(2), 350, 187 S.E.2d 560; Gulf Refining Co. v. Smith, 164 Ga. 811(4), 139 S.E. 716; State Highway Dept. v. Howard,124 Ga.App. 76(2), 183 S.E.2d 26. The court erred in restricting the expert's testimony as to hearsay and allowing him to testify only as to actual knowledge of tests performed by him. This was error in Case No. 51934 requiring a new trial.

8. One of the main defenses in Case No. 51935 was that if the defendant gave the state witness any substance at all it was cannabis indica, a poison classified as prohibited by the Federal government (see 21 U.S.C.A. § 209) but not by the state, instead of illegal cannabis sativa L. prohibited by the state. See Code Ann. § 79A-802(o). The evidence here was sufficient for the jury to decide that the substance was cannabis sativa L.

9. Written requests to charge were made in both cases to the effect that the state must prove the questioned substance to be some part of the plant cannabis sativa L. whether growing or not. The court did charge the substance of Code Ann. §§ 79A-802(o), and 79A-811(j), and consequently gave the substance of the written requests. There is no merit in these complaints.

10. Appellant's sixth enumeration of error, (Case No. 51935) is that the court erred in (1) denying its discovery motion to have 'access to a sample of the alleged marijuana for testing' and (2) 'not allowing the defense access to the state crime lab and in prohibiting the defense from showing its lack of access to the lab to the jury.' Appellant cites Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 and the recent Fifth Circuit case of Barnard v. Henderson, 514 F.2d 744 (1975), as authority for a constitutional requirement that such a critical piece of evidence (marijuana) be made available for testing by defendant's own experts. Brady states only that the 'suppression by the prosecution of evidence favorable to an accused' and 'which, if made available, would tend to exculpate him' is that which deprives a defendant of due process. Id. 373 U.S. pp. 87-88, 83 S.Ct. p. 1196. (Emphasis supplied). While the Fifth Circuit may take a different position as to whether or not there must be some showing that the evidence would be favorable to the defendant (Barnard v. Henderson, supra; Williams v. Dutton, 400 F.2d 797, 800 (5th Cir.)), we are not referred to any United States Supreme Court decision or Georgia Supreme Court decision as authority for such position. On the contrary, the Georgia decisions state that the defendant has the burden of showing that the denial of such access so impaired his defense that he was denied a fair trial. See, Brannen v. State, 235 Ga. 505(1), 220 S.E.2d 264; Nations v. State,234 Ga. 709(1), 217 S.E.2d 287; Chenault v. State, 234 Ga. 216(3),215 S.E.2d 223; Hicks v. State, 232 Ga. 393, 394-96, 207 S.E.2d 30. The defendant has not made a showing here. The state's witness from the Criminal Laboratory testified and was subjected to a thorough cross examination by defendant's counsel. The marijuana was examined and tested by the...