Kitchens v. State

• Decision Date: 21 February 1975
• Docket Number: Nos. 1,3,2,No. 49927,49927,s. 1
• Citation: 134 Ga.App. 81,213 S.E.2d 180
• Court: Georgia Court of Appeals
• Parties: Billy KITCHENS v. The STATE

Page 180

213 S.E.2d 180

134 Ga.App. 81

Billy KITCHENS v. The STATE.

No. 49927.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Feb. 21, 1975.

John R. Calhoun, Savannah, for appellant.

Andrew J. Ryan, Jr., Dist. Atty., William H. McAbee, II, Asst. Dist. Atty., Savannah, for appellee.

Syllabus Opinion by the Court

WEBB, Judge.

Defendant was tried and convicted under six indictments charging him with sale and possession of heroin, cocaine, and marijuana, and he now appeals to this court. Held:

1. At trial defendant sought to prevent the introduction of a portion of the narcotics and drugs, bought by an undercover agent from defendant, by making the following objection: 'If it please the court, in reference to exhibits marked State's exhibits 1, 3 and 5, I object to the introduction of them as they have not been identified. The officer (Moses Ector) testified those were similar to the ones that he had purchased off of the defendant but he could not identify them. Further, some of these items that are contained in these packages as part of these exhibits show the initials of 'W. G. B.' which is another agent and it shows that this is his initials and his writing on that and it shows that these items have been in his possession and that he had possession and control of them at the time. He has not testified in this case and I think that that breaks the chain of this evidence and I move that it be excluded on those grounds.'

( a) Defendant acknowledges in his brief that 'After purchase, these drugs were placed in agent Ector's pocket, and thereafter initialed, dated and delivered to Detective Bobby Jones of the Savannah Police Department, who in turn delivered them to Sergeant J. J. Brown of the Savannah Police Department for safekeeping; on February 12, 1973, Detective Jones took these items (from Brown's safe) to Dr. Charles H. Sullenger of the Chatham County Branch of the State Crime Laboratory for chemical analysis.' Under these circumstances the fact that Agent Ector could not positively identify these exhibits but could only testify that they were 'similar' to the items purchased from defendant did not require their exclusion from evidence. Overby v. State, 125 Ga.App. 759, 760(2), 188 S.E.2d 910.

( b) The contention that agent 'W. G. B.' had possession and control of the exhibits and had not testified, thus purportedly breaking the 'chain of evidence,' is without merit. The testimony is clear that 'W. G. B.' was another undercover agent (Wally Brooks) who was present when agent Ector delivered the drugs to officers Jones and Brown, and he never had possession and custody of them but initialed the exhibits merely to witness their delivery by Ector to the other officers.

Enumeration of error 2 is without merit.

2. Enumeration of error 3 complains that it was error for the court to allow, over timely objection, the testimony of officer J. D. Smith since Smith's name did not appear upon the list of witnesses demanded and received by defense counsel. Code Ann. § 27-1403 provides that 'Without the consent of the defendant, no witness shall be permitted to testify for the State whose name does not appear upon the list of witnesses as furnished to the defendant unless the solicitor or prosecuting attorney shall state in his place that the evidence sought to be presented is newly-discovered evidence which the State was not aware of at the time of its furnishing the defendant with a list of the witnesses.' (Emphasis supplied.) Although it affirmatively appears that the witness was 'newly discovered,' the prosecuting attorney did not so state in his place as required by the Code section, and error would therefore seemingly appear. Compare, for example, Butler v. State, 226 Ga. 56, 58(4), 172 S.E.2d 399; Mitchell v. State, 226 Ga. 450(3), 175 S.E.2d 545; Vinson v. State, 127 Ga.App. 607, 608(2), 194 S.E.2d 583, where the prosecuting attorney made the required statement in his place.

However, the error, if any, is clearly harmless. During the presentation of the state's case, agent Ector testified that defendant introduced himself as 'Bird,' that 'Bird' was defendant's nickname, and that defendant, whom the agent identified at the trial, sold him the drugs. Defendant took the stand and denied, inter alia, that his nickname as 'Bird'; and, over objection, the court allowed the newly-discovered witness, Officer Smith, to testify in rebuttal that defendant was known by the nickname 'Bird.' Officer Smith's testimony was thus merely cumulative to that of agent Ector with regard to whether defendant's nickname was 'Bird'; but regardless of whether he was fish or fowl, he was positively identified as the one selling drugs to Ector, and we fail to perceive how he was harmed by Officer Smith's testimony even though his nickname might not have been 'Bird.'

'Defendants contend the sheriff's testimony should have been excluded upon objection since the sheriff was not sequestered but had remained in the courtroom during the trial and also because his name was not included on the state's list of witnesses furnished to defense counsel . . . As to the other ground of this objection, namely failure to have the sheriff's name reported on the list of state's witnesses supplied upon demand to the accused (Code Ann. § 27-1403) we find this comes within the 'harmless error' rule. ' (E)rror without injury never requires the reversal of a judgment.' Corbin v. State, 212 Ga. 231, 234(9), 91 S.E.2d 764, 769. 'Injury as well as error must be shown before a new trial will be granted.' Goodwyne v. State, 38 Ga.App. 183(8), 143 S.E. 443. Although the sheriff's testimony was a vital link in establishment of the chain of custody, the fact is that if his name had been furnished to accused, the information would have been of no benefit with reference to the defense. Inquiry of the sheriff would not have developed any leads towards material that could have been used by defendants at the trial. The burden is upon him who asserts error to show it affirmatively by the record. Roach v. State, 221 Ga. 783, 786, 147 S.E.2d 299. For a case holding harmless error under Code Ann. § 27-1403 see Spell v. State, 225 Ga. 705, 171 S.E.2d 285. See Hunnicutt v. State, 130 Ga.App. 630, 204 S.E.2d 310.' Caito v. State, 130 Ga.App. 831, 836(7), 204 S.E.2d 765, 769. And see Elrod v. State, 128 Ga.App. 250, 251(2), 196 S.E.2d 360, 362, where it was held that § 27-1403 must be given a reasonable interpretation, and that although the evidence complained of was 'not exactly 'newly discovered," it was 'sufficiently within the spirit of the statute not to require a reversal of the case.'

Enumeration of error 3 is without merit.

3. Enumeration of error 5 complains that 'It was error for the court to refuse to order the State to disclose the name of an undercover agent and informer, which person was an active participant in the alleged drug transactions and is a material witness to the same.' However, the record does not support the enumeration, as it affirmatively appears that the person in question was not an undercover agent but a confidential informant who took no active part in the transactions and whose testimony was not necessary to obtain a conviction. No reversible error appears. Code § 38-1102; Pass v. State, 227 Ga. 730, 731(4), 182 S.E.2d 779 and cases cited; Butler v. State, 127 Ga.App. 539, 540(2), 194 S.E.2d 261; Welch v. State, 130 Ga.App. 18, 19(3), 202 S.E.2d 223; Estevez v. State, 130 Ga.App. 215, 216(2), 202 S.E.2d 686.

4. The contention that the court committed reversible error by commenting upon the evidence in the presence of the jury is without merit. The trial court did not comment upon the evidence but attempted to limit repetitious questions on the part of the prosecuting attorney, which he had the discretion to do. Lauchheimer &amp Sons v. Jacobs, 126 Ga. 261(3), 55 S.E. 55; Price v. State, 125 Ga.App. 712(1), 188 S.E.2d 889. In any event no objection was ever made, and it is axiomatic that the question may not be raised for the first time on appeal. Enumeration of error 4 is without merit.

5. The evidence amply supports the verdict, and the judgment is affirmed.

Judgment affirmed.

BELL, C.J., PANNELL, P.J., and QUILLIAN, CLARK and MARSHALL, JJ., concur.

DEEN, P.J., and EVANS and STOLZ, JJ., dissent.

EVANS, Judge (dissenting).

I dissent from the holding of the majority in Division 2 of the opinion. Billy Kitchens was convicted of the sale of illegal drugs. He enumerates error because, over his timely objection, the trial court permitted state's agent, J. D. Smith, to testify against him. Smith's name had not been furnished to defendant in advance, in accordance with the provisions of Code Ann. § 27-1403. Defendant had made proper and timely demand for a list of witnesses who were to testify for the state.

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