Jones v. State

Decision Date03 September 1975
Docket NumberNos. 50805,50806,No. 2,s. 50805,2
Citation135 Ga.App. 893,219 S.E.2d 585
PartiesJ. R. JONES v. The STATE. Caulley GEORGE v. The STATE
CourtGeorgia Court of Appeals

Doremus & Towers, Ogden Doremus, Metter, W. W. Larsen, Jr., Dublin, Robert J. Erb, Savannah, for appellants.

J. Lane Johnston, Dist. Atty., Statesboro, for appellee.

CLARK, Judge.

Jones, George, Pinkham, and Von Bargeron were jointly indicted in Bulloch County for the offense of conspiracy to possess and sell marijuana. Pinkham and Von Bargeron pled guilty to the charge, while appellants Jones and George asserted their innocence at trial. From the judgment of the court entered upon the jury's verdict of guilty and from the court's denial of their motions for a new trial, separate appeals are taken to this court. 1

That part of the State's evidence which detailed the drug transaction forming the basis of the conspiracy may be summarized as follows: Undercover agents for the Georgia Bureau of Investigation were placed in contact with co-conspirator Pinkham by an informer named Byars, who accompanied the agents to a beer bar in Bulloch County. There the agents met Pinkham, whom they negotiated with for the purchase of one hundred pounds of marijuana. Pinkham took the agents to his apartment and produced a sample of the marijuana for their inspection. Pinkham and the agents then returned to the beer bar, where they met co-conspirator Von Bargeron. Von Bargeron informed the agents that after be placed a telephone call, he would contract them regarding arrangements for transfer of the drugs and money.

The agents returned to their motel room, where they were called by Von Bargeron later that evening. It was agreed that one of the agents would go with Pinkham to pick up the marijuana at an undisclosed location; another agent would remain at his motel room with Von Bargeron until confirmation of the receipt of the marijuana, at which time Von Bargeron would be paid.

Pursuant to this plan, Agent Hallman and Pinkham drove to a farm located in Candler County. There they were met by two persons, identified by the agent as appellants Jones and George. The marijuana, which had been in a vehicle at the farm, was loaded into the trunk of Agent Hallman's car by the three conspirators present. Pinkham and the agent then returned to Bulloch County where they called Von Bargeron and the other agent at the motel. After being informed of the receipt of the marijuana, Von Bargeron accepted the money to complete the transaction. The four conspirators were arrested shortly thereafter. Held:

1. Appellants complain of the trial court's refusal to compel the State to produce documentary evidence sought in their notices to produce and subpoenas. 'We need not cite here all the many cases before this court in which we have held criminal discovery on behalf of the defendant may not be compelled. There is no state law existing which would allow the defendant as a matter of right to discover from a district attorney or other prosecuting officer of the state evidence, documentary or otherwise, for use by him or his counsel before trial. Bryan v. State, 224 Ga. 389, 162 S.E. 349 (1968): Walker v. State, 215 Ga. 128, 109 S.E.2d 748 (1959). In addition the Supreme Court of the United States has held that pretrial discovery in favor of defendants is not required by considerations of due process, see Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959), and 18 U.S.C. § 3500, in the absence of a showing that the evidence denied disclosure of by the prosecution upon request was materially favorable to the accused either as direct or impeaching evidence. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1962) . . . However, these due process considerations are not relevant to a discussion of the case at hand because there had not been argued before us that the state purposefully suppressed evidence favorable to the accused . . .' Whitlock v. State, 230 Ga. 700, 703, 704, 198 S.E.2d 865, 867. See also Hicks v. State, 232 Ga. 393, 207 S.E.2d 30; Houser v. State, 234 Ga. 209, 214 S.E.2d 893; Chenault v. State, 234 Ga. 216, 215 S.E.2d 223.

Sub judice, appellants have neither contended nor demonstrated that any of the materials sought for inspection were exculpatory in nature. The trial court did not err, therefore, in refusing to compel discovery pursuant to appellants' notices to produce. Nor did the court's refusal to commend discovery under subpoena constitute error. A subpoena is a writ or a process, designed to implement rather than confer substantive rights. Where, as here, its intended use was to obtain the same general discovery as was previously sought in appellants' notices to produce, the court properly denied its enforcement. See generally 97 C.J.S. Witnesses § 25, p. 376.

2. Appellants contend that the trial court's denial of their motions for severance constitutes reversible error. We disagree. The determination of whether or not jointly indicted defendants are to be granted separate trials is vested within the sound discretion of the trial court. Code Ann. § 27-2101 (Ga.L.1971, p. 891). Appellant George's alibi defense was not inconsistent with the defense of mistaken identity advanced by appellant Jones. Both appellants denied their participation in the conspiracy and in the drug transaction, and neither testified so as to implicate the other in the offense. Under these circumstances, the trial court's denial of appellants' motions to sever was not an abuse of discretion. Merrill v. State, 130 Ga.App. 745, 204 S.E.2d 632. As appellants have not shown in what manner they were prejudiced by their joint trial, this enumeration is without merit.

3. Error is enumerated upon the court's refusal to grant appellants' motions for a continuance based upon the unavailability of informant Byars. The court denied the motions 'on the grounds that no sufficient showing has been made.' (T. 5). The court further noted that defense counsel had not sought a subpoena for Byars until the Friday preceding the Monday trial, even though one of the attorneys had been retained in this matter some six months earlier.

' A motion to continue is addressed to the sound discretion of the trial judge, and this court will not interfere unless it is clearly shown that he has abused his discretion.' Corbin v. State, 212 Ga. 231(1), 91 S.E.2d 764, cert. denied 351 U.S. 987, 76 S.Ct. 1057, 100 L.Ed. 1501. Where the moving party fails to make a proper showing of the requirements set forth in Code Ann. § 81-1410, the denial of a continuance motion cannot be said to be an abuse of discretion. Scoggins v. State, 98 Ga.App. 360, 106 S.E.2d 39; Beasley v. State, 115 Ga.App. 827, 156 S.E.2d 128.

Byars' sole activity in this drug transaction consisted of introducing the agents to co-conspirator Pinkham. (T. 145). The facts expected to be proved by this witness and the materiality of his testimony were not demonstrated. Nor was it shown how this prospective witness might have aided the defense or how the defense suffered by the refusal of a continuance. Appellants did not adequately demonstrate that this witness would be available during the next court term. And, in view of the last-minute issuance of the subpoena, the court may properly have concluded that appellants failed to show that the continuance was for a purpose other than delay. We find no abuse of discretion under these circumstances. See Stevens v. State, 228 Ga. 621, 187 S.E.2d 281; Harris v. State, 118 Ga.App. 769, 165 S.E.2d 462; Eady v. State, 129 Ga.App. 656, 200 S.E.2d 767.

4. Error is enumerated upon the trial court's overruling of appellants' motion to quash the indictment. Although appellants were sent notifications of their arraignment date and of their indictment on November 14, 1974, they were not in fact indicted prior to November 18, 1974. Appellants argue that this premature notification violated their due process rights.

We note initially that the provisions of Code Ann. § 27-1401 concerning notice of arraignment were fully complied with in the instant case. Appellants do not assert in what manner the indictment might have been improperly procured; nor do they assert how they might have been harmed by the premature notice. The trial court correctly declined to quash the indictment on this ground.

5. Several enumerations contend that the trial judge improperly limited and impaired appellants' right to cross examine adverse witnesses. It is true that the right to a thorough and sifting cross examination may not be abridged. Code Ann. § 38-1705. Ralph v. State, 124 Ga. 81, 52 S.E. 298; Ledford v. State, 89 Ga.App. 683, 80 S.E.2d 828; Bracknell v. State, 125 Ga.App. 345, 187 S.E.2d 575. But the permissible scope of cross examination is not unlimited. Geiger v. State, 129 Ga.App. 488, 496(4), 199 S.E.2d 861. 'The scope of the cross examination rests largely within the discretion of the trial judge, to control this right within reasonable bounds, and his discretion will not be controlled by a reviewing court unless it is abused.' Sullivan v. State, 222 Ga. 691, 693, 152 S.E.2d 382, 383. See Clifton v. State, 187 Ga. 502, 508(4), 2 S.E.2d 102; Moore v. State, 221 Ga. 636, 638(2), 146 S.E.2d 895. The trial judge may properly restrict the cross examination to matters material or relevant to the issues. Smiley v. State, 156 Ga. 60, 118 S.E. 713; Waller v. State, 213 Ga. 291, 294, 99 S.E.2d 113. He may further exclude the unnecessary repetition of questions previously propounded and answered. Sims v. State, 177 Ga. 266, 170 S.E. 58; Watson v. State, 192 Ga. 679, 16 S.E.2d 426.

After thoroughly reviewing the trial transcript, we conclude that appellants were not denied their right to a thorough and sifting cross examination. The trial judge's refusal to permit irrelevant or needlessly repetitious questions was in each instance proper. Appellants...

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