Law v. State

• Decision Date: 08 February 1983
• Docket Number: Nos. 64698,64699,s. 64698
• Citation: 165 Ga.App. 687,302 S.E.2d 570
• Parties: LAW v. The STATE. WHITFIELD v. The STATE.
• Court: Georgia Court of Appeals

Page 570

302 S.E.2d 570

165 Ga.App. 687

LAW v. The STATE.

WHITFIELD v. The STATE.

Nos. 64698, 64699.

Court of Appeals of Georgia.

Feb. 8, 1983.

Rehearings Denied March 9, 1983.

Certiorari Granted May 27, 1983.

George C. Floyd, Leonard H. Conger, Bainbridge, for appellants.

Gilbert J. Murrah, Dist. Atty., Edward C. Parker, Asst. Dist. Atty., for appellee.

POPE, Judge.

Appellants Law and Whitfield were jointly indicted, tried and convicted along with Corean V. Coleman and Loretta Bradley for possession of cocaine in violation of the Georgia Controlled Substances Act. All four were arrested after law enforcement officers discovered cocaine in their jointly occupied motel room in Bainbridge, Georgia. The arrests were the result of the officers' all-night stake-out of the room and a vehicle reportedly used by appellants which was parked in the motel parking lot. The cocaine was seized pursuant to a search warrant. For ease of disposition, the appeals of Law and Whitfield have been consolidated and those enumerations common to both appellants will be addressed as one.

1. Appellants first assign error to the trial court's denial of their motion to suppress the evidence seized pursuant to the search warrant. The evidence disclosed that law enforcement officers had begun surveillance of the motel room and vehicle at approximately 5:00 p.m. on October 8, 1981 because appellants were known by the authorities in Florida and Georgia to have been involved in the trafficking of illegal drugs and had been observed as present within Decatur County. Later that evening, at 8:30 p.m., Decatur County Deputy Sheriff B.J. Clenny received a tip from a confidential informant that appellants had been seen by the informant in the vehicle with cocaine in their possession and also offering it for sale earlier on that same day. At 11:00 p.m. Deputy Clenny obtained a search warrant from a justice of the peace based upon his affidavit and after being sworn. The warrant was issued for the motel room and the vehicle. Surveillance continued through the night, and the search warrant was executed and the arrests made at approximately 8:00 a.m. on October 9, 1981.

Appellants challenge the validity of the search warrant based upon an asserted lack of probable cause. This argument is primarily centered upon the claim that the affidavit was insufficient to meet the tests advanced in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). "[W]here hearsay such as an informer's tip is relied upon for probable cause, the sworn information placed before the justice of the peace must adequately set forth (1) the ' "underlying circumstances" necessary to enable the magistrate independently to judge of the validity ...' of the information, and (2) the informant's credibility or reliability. Spinelli [v. United States, supra]." Simmons v. State, 233 Ga. 429, 431-2, 211 S.E.2d 725 (1975). The affidavit provided the justice of the peace with the knowledge that the informant had personally observed appellants in possession of the cocaine. The informant's reliability was demonstrated within the affidavit by statements that the informant had furnished information in the previous six months leading to the issuance of three felony warrants for possession of illegal drugs and that all information provided by the informant had proven to be true. We note that no competent evidence was introduced at the hearing on the motion to suppress to discredit the affidavit of Deputy Clenny. Both prongs of the preceding test for a showing of probable cause based upon an unidentified informant's tip were met in Deputy Clenny's affidavit. See Mitchell v. State, 150 Ga.App. 44(1), 256 S.E.2d 652 (1979); Lewis v. State, 144 Ga.App. 847(2), 242 S.E.2d 725 (1978).

Additionally, appellants contend that the search of the motel room exceeded that authorized by the personal observation of the informant since the affidavit stated that appellants were seen in possession of the cocaine within the vehicle. However, the affidavit further recited that the cocaine was being concealed in the vehicle and the motel room according to the informant and that certain named police officers had had the vehicle and the jointly occupied motel room under surveillance since 5:00 p.m. See generally State v. Alonso, 159 Ga.App. 242, 283 S.E.2d 57 (1981). Moreover, the affidavit contains an affirmative statement that the affiant, Deputy Clenny, had knowledge of appellants as being involved in the trafficking of drugs. " '[W]e cannot conclude that a policeman's knowledge of a suspect's reputation ... is not a "practical consideration of everyday life" upon which an officer (or a magistrate) may properly rely...' " Caffo v. State, 247 Ga. 751, 755, 279 S.E.2d 678 (1981), quoting United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723 (1971). From our review of the affidavit, we find sufficient evidence to uphold the conclusion of the justice of the peace that probable cause existed for the issuance of the search warrant. See Devier v. State, 247 Ga. 635, 277 S.E.2d 729 (1981). The trial court did not err in denying appellants' motions to suppress.

2. Appellants next contend that the state failed to show beyond a reasonable doubt that either appellant was in actual or constructive possession of the cocaine. We disagree. Although the motel room was not rented in the name of either appellant, evidence was adduced at trial to show that appellants had been in joint occupation of the room with Ms. Coleman and Ms. Bradley since at least 5:00 p.m. on October 8, 1981. Upon the entry of the law enforcement officers into the motel room, appellants ran from the bedroom area of the room into its adjoining bathroom. The cocaine was then discovered by the officers as it lay in plain view in a formation of parallel lines upon the dresser in the bedroom area.

In the case sub judice, all occupants of the motel room (except for the infant child of one defendant) were indicted and convicted for possession of the cocaine. The trial court properly instructed the jury upon the law of possession and the law regarding parties to a crime. See State v. Lewis, 249 Ga. 565, 292 S.E.2d 667 (1982). "It is not necessary that the state remove every possibility of the defendant's innocence." Castleberry v. State, 152 Ga.App. 769, 770, 264 S.E.2d 239 (1979). See Valenzuela v. State, 157 Ga.App. 247(2), 277 S.E.2d 56 (1981). The evidence in this case was sufficient to support the verdict, and the state proved appellants' possession of the illegal drug beyond a reasonable doubt. See Tamez v. State, 148 Ga.App. 307(1), 251 S.E.2d 159 (1978).

3. Appellants enumerate as error the trial court's admission of testimony explaining the results of certain laboratory tests. Appellants base their argument upon their assertion that the state failed to supply them with a copy of the scientific report after a written demand had been made. Code Ann. § 27-1303(a) (now OCGA § 17-7-211(b)) provides: "In all criminal trials, felony and misdemeanor, the defendant shall be entitled to have a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant by the prosecution in its case-in-chief or in rebuttal. This request for a copy of any written scientific reports shall be made by the defendant in writing at arraignment or within any reasonable time prior to trial. It shall be within the sound discretion of the trial judge to determine in each case what constitutes a reasonable time prior to trial if such written request is not made at arraignment. If the scientific report is in the possession of or available to the district attorney, he must comply with this section at least 10 days prior to the trial of the case."

In the case sub judice, the written demand for discovery of written scientific reports was made on the date of arraignment, November 6, 1981. Trial began on November 11, 1981. The trial court allowed the testimony of Mr. Terry Mills, a forensic chemist with the Georgia State Crime Lab, describing the results of the laboratory analysis of the substance found in the motel room. Appellants objected to the admission of this testimony claiming that the state had failed to comply with Code...