Lloyd v. State, 52181

• Decision Date: 27 September 1976
• Docket Number: No. 3,No. 52181,52181,3
• Citation: 229 S.E.2d 106,139 Ga.App. 625
• Parties: Calvin LLOYD v. The STATE
• Court: Georgia Court of Appeals

Page 106

229 S.E.2d 106

139 Ga.App. 625

Calvin LLOYD v. The STATE.

No. 52181.

Court of Appeals of Georgia, Division No. 3.

Sept. 27, 1976.

Robert L. Whatley, Lithia Springs, for appellant.

Lewis R. Slaton, Dist. Atty., H. Allen Moye, Joseph J. Drolet, Guy E. Davis, Asst. Dist. Attys., Atlanta, for appellee.

QUILLIAN, Judge.

The defendant was indicted for possession on January 15, 1974 of cocaine, a narcotic drug. The indictment also set forth that the defendant had been previously convicted for a violation of the Uniform Narcotic Drug Act on April 21, 1971. The defendant was tried before a jury who returned a verdict of guilty against him. The defendant was then sentenced by the trial judge to serve a term of ten years in confinement. The defendant filed a motion for new trial and by amendment added several additional grounds. Upon the overruling of the motion for the new trial, appeal was taken to this court. Held:

1. Prior to the trial the defendant had filed a motion to suppress. By agreement of counsel a portion of the hearing on the motion to suppress was held before the jury which tried the case.

Code Ann. § 27-313(b) (Ga.L.1966, pp. 567, 571) provides regarding the hearing of the motion to suppress: 'The judge shall receive evidence out of the presence of the jury on any issue of fact necessary to determine the motion . . .' As pointed out in Holcomb v. State, 128 Ga.App. 238, 240, 196 S.E.2d 330, where the trial judge in effect compels that the hearing be held before a jury, then error results. However, in this case the defendant waived any objection he might have and, although we do not sanction the proceeding, there is no harmful error.

2. In the defendant's first enumeration of error it is contended that the trial judge erred in overruling a motion for mistrial. The motion was predicated on the fact that a witness for the state was permitted to refer to a sale of cocaine for which offense the defendant was not on trial. It is further contended that the witness testified to information related to him by an informant and that such testimony was hearsay.

It was not error to admit the evidence in question merely because it might have a prejudicial effect on the defendant. Bobo v. State, 101 Ga.App. 266, 268, 113 S.E.2d 468. See Cowart v. State, 30 Ga.App. 289(1), 117 S.E. 663; McGregor v. State, 119 Ga.App. 40, 41, 165 S.E.2d 915, and cases cited therein. The testimony that a witness received certain information upon which he acted is admissible not as an independent evidence to establish the truth of such information, but as an inducement and explanation by the witness that, acting on such information, he discovered other facts connecting the accused with the crime in question. Coleman v. State, 127 Ga. 282(1), 56 S.E. 417. Hearsay testimony may be admitted for the purpose of explaining conduct. Lundy v. State, 130 Ga.App. 171, 174(4), 202 S.E.2d 536. When offered and admitted for the purpose of explaining conduct and to ascertain motives, evidence which is otherwise hearsay becomes original evidence for that purpose. Code § 38-302; Garrett v. State, 157 Ga. 817(1), 122 S.E. 211. See also Lingerfelt v. State, 231 Ga. 354, 356(4), 201 S.E.2d 445.

The admission of the evidence was not error for any reasons assigned. Especially is this true, where in the case sub judice, counsel for the defendant agreed to have the hearing regarding the motion to suppress in the presence of the jury. The evidence was essential and admissible to establish probable cause. See Jones v. State, 131 Ga.App. 699, 700, 206 S.E.2d 601, 602, holding: '. . . hearsay testimony would not be admissible during the trial of the case as affirmative proof of the facts stated. But on hearing a motion to suppress before the judge the issue is how or why the search was made and whether there existed probable cause for making it. It is well settled that there is no inhibition against hearsay in the showing of probable cause in an affidavit for obtaining a search warrant.' Thus, it was not error to overrule the motion for a mistrial.

3. The defendant contends that it was error to allow an informant's testimony to be quoted by other witnesses for the state. It is urged that the statements were those of a decoy and not an informant, and that the evidence was not admissible without revealing the alleged decoy's identity and bringing him forth.

In a case of this sort, whether the identity of the informant must be revealed rests within the sound discretion of the trial judge. Welch v. State, 130 Ga.App. 18, 20, 202 S.E.2d 223. For a thorough discussion of the principles involved, see Taylor v. State, 136 Ga.App. 31, 220 S.E.2d 49. In Pound v. Dunn, 101 Ga.App. 461, 465, 114 S.E.2d 163, this court held that the defendant's right of cross examination was not violated by the failure to divulge the identity of a certain informer based on the contention that the defendant was without information as to whether he was an informer or a decoy.

The case of Scull v. State, 122 Ga.App. 696, 699(2), 178 S.E.2d 720, 724, is controlling here. In that case the court pointed out that where the crime charged is possession of narcotics and the significance of the informant's testimony is with regard to exigent circumstances concerning the basis of a search, then it was not error to fail to disclose the identity of the informer. As there pointed out, if the tip meets the requisite constitutional test 'the mere possibility that the police might be impeached is not enough to demand disclosure of the informer's identity.' Here, the informant took no active part in the transaction relied upon for conviction and his testimony was not necessary as to that issue. Hence, no reversible error appears. Welch v. State, 130 Ga.App. 18, 202 S.E.2d 223, supra; Kitchens v. State, 134 Ga.App. 81, 84(3), 213 S.E.2d 180; Greene v. State, 134 Ga.App. 658, 215 S.E.2d 536; Taylor v. State, 136 Ga.App. 31, 220 S.E.2d 49, supra. This enumeration of error is without merit.

4. The indictment charged the defendant with a prior narcotics offense in order to increase punishment. Since the defendant was charged with a crime committed on January 15, 1974, the relevant recidivist laws in effect at that time were former Code § 27-2511 as amended (Ga.L.1953, Nov....