Lush v. State
| Decision Date | 03 November 1983 |
| Docket Number | 66575,Nos. 66574,s. 66574 |
| Citation | 168 Ga.App. 740,310 S.E.2d 287 |
| Parties | LUSH v. The STATE. FLAKE v. The STATE. |
| Court | Georgia Court of Appeals |
Helen H. Porter, Cartersville, for appellant Lush.
William V. Hall, Jr., Decatur, for appellant Flake.
Darrell E. Wilson, Dist. Atty., Mickey R. Thacker, Asst. Dist. Atty., for appellee.
Defendants were jointly indicted and tried for unlawfully manufacturing with intent to distribute methamphetamine (Count 1), and attempt to commit the crime of manufacturing with intent to distribute phencyclidine (Count 2). The jury found defendant Lush guilty of Counts 1 and 2, but found defendant Flake guilty of Count 1 "by aiding and abetting," returning a finding of not guilty as to the attempted manufacture with intent to distribute phencyclidine (Count 2). Defendants were each sentenced to serve fifteen years with ten to serve in confinement and five years on probation.
Defendant Lush appeals following the denial of her motion for new trial, while defendant Flake appeals directly. The appeals being based on one transcript we have consolidated the cases for review.
Defendant Lush enumerates 12 separate alleged errors. Defendant Flake, in substance, enumerates one, i.e., that the state proved mere presence at the scene of the crime and therefore presented insufficient evidence to warrant her conviction. Held:
The evidence as relevant to both cases demonstrates the following: Defendants were friends of several years standing. They began renting living accommodations in February 1982 near Lake Allatoona (Acworth area) in Bartow County (a garage apartment), each contributing a portion of the rent, although the apartment was apparently used more by defendant Lush than by defendant Flake due to her grandmother's illness.
On March 15, 1982, the landlord entered the garage area beneath the apartment where he maintained personal storage, and detected a strong, disagreeable chemical odor. Finding no one was in the apartment, he entered the apartment with a pass key to see if the premises were safe and secure. When entering the apartment, he detected the same odor and observed much chemical paraphernalia including beakers, burners, syphons, and containers of chemicals. The landlord notified police of what he had observed.
The police had an outstanding fugitive warrant for violation of parole against defendant Flake. Early on the morning of March 17, 1982, the police went to the garage apartment. Defendant Flake was awakened, admitted the police, and was arrested. Incident to the arrest warrant, the police made a cursory investigatory search for other persons or possible weapons and left. Based upon what they observed, they obtained a search warrant and seized the chemical paraphernalia. Two days later, defendant Lush was apprehended.
Defendant Flake contended the drug equipment was brought to the apartment by defendant Lush, and she admonished defendant Lush that the material would have to be removed from the apartment. Defendant Lush, in substance, corroborated this testimony by Flake, testifying that she brought the equipment into the apartment on the afternoon of the 14th and that the first time Flake had seen it was upon Flake's return to the apartment on the afternoon of the 16th.
At the conclusion of the state's evidence, defendant Flake moved for a directed verdict of acquittal maintaining that the state had proved no more than mere presence. She renewed the motion at the conclusion of the defense's case and it is the denial of the directed verdict of acquittal which ultimately forms the basis of her appeal.
1. We find no merit in defendant Lush's contention that the search of the apartment by the police exceeded the scope of defendant Flake's arrest warrant by extending into all parts of the apartment. The evidence reflects that when this defendant was arrested the police made a cursory, protective sweep to determine if any other person or weapon may have been present. Based upon what they observed during this protective sweep (which was in plain view), a warrant was obtained on probable cause and all that was admitted against the defendants was the product of this lawfully executed search warrant. See Wood v. State, 224 Ga. 121, 124, 160 S.E.2d 368; Jones v. State, 126 Ga.App. 841, 844, 192 S.E.2d 171.
2. There is no merit in defendant Lush's argument that the denial of the motion for severance based upon antagonistic defenses resulted in prejudicial error. Even a casual examination of the transcript reflects that the testimony offered by both defendants was mutually consistent and exculpatory. Under such circumstances, it was not error to refuse a severance. Johnson v. State, 159 Ga.App. 819, 285 S.E.2d 252.
3. The indictment against both defendants properly alleged a violation of the Georgia Controlled Substances Act. Defendant Lush, however, complains that the incorporation by reference into and made a part of the indictment of an inventory of the chemicals and paraphernalia seized rendered the indictment vague and indefinite. This enumeration lacks merit. The language of an indictment is interpreted liberally in favor of the state or stated otherwise is strictly construed against the defendant. Green v. State, 109 Ga. 536, 35 S.E. 97. Moreover, an indictment sufficient to state a crime in violation of an appropriate statute (which we find to be true in this case) will not be stricken on a demurrer generally asserting that the indictment is vague, uncertain and indefinite. Jones v. State, 115 Ga. 814, 42 S.E. 271.
4. During the presentation of its case in chief, the state's witnesses referred to methamphethamine and phencyclidine as Schedule II drugs; referred to the assemblage of chemicals and paraphernalia as representing a clandestine or illegal drug laboratory; and identified the strong, offensive odor as residual phenylacetone which had permeated the rugs and draperies of the apartment. Defendant Lush complains that the witnesses testifying to these conclusions were not qualified to give such opinions. This enumeration lacks merit. Opinions such as those stated may be given based upon the experience of the witness testifying. Each witness sufficiently established his expertise and knowledge of the criminal law, chemical odors, or identity of a clandestine drug laboratory. Such experience and knowledge sufficiently forms the predicate for the opinions rendered. Frazier v. State, 138 Ga.App. 640, 645, 227 S.E.2d 284.
5. Defendant Lush also complains that a statement she made to the police officer that the drug laboratory was hers, as well as her conversation with that officer indicating that she was familiar with the chemical process of formulating phenylacetone, a necessary ingredient of phencyclidine, were erroneously admitted as being involuntary. There is no contention that an appropriate Miranda warning was not given. The evidence does not support a contention of involuntariness. We find that the admission of this evidence was not clearly erroneous. Phillips v. State, 238 Ga. 497, 498-499, 233 S.E.2d 758.
6. Defendant Lush argues that the trial court erred in denying her motion for directed verdict of acquittal. She asserts that the evidence is insufficient and particularly because the amount of methamphetamine found was miniscule and therefore could not support an intent to distribute. To the contrary, we find the evidence, though in dispute, to be adequate to support the jury's verdict of guilty as to both Counts 1 and 2. See Van Kleeck v. State, 250 Ga. 551, 552(2), 299 S.E.2d 735. The scarcity of methamphetamine, once determined to be present, is immaterial in relation to the issue of guilt. Partain v. State, 139 Ga.App. 325, 326(5), 228 S.E.2d 292.
7. Defendant Lush contends error in the charge of the court on credibility of witnesses and impeachment, on the definition of criminal intent, and the form of verdict. She does not contend that the charge as given was not in legally correct language, only that the charge was misleading, incomplete, or was insufficiently related to Lush as an individual because the charge primarily was couched in language directed toward the defendant Flake. We have examined the charge in its entirety and find that it does not suffer from inconsistency, vagueness, or lack of clarity. We concur with defendant Lush's admission that the charge as given was in legally correct terminology. We also conclude that any jury of normal intelligence would not have been mislead as to the applicability of the charge to either defendant. Accordingly, we find no error in the charge of the court. Merritt v. State, 110 Ga.App. 150, 153, 137 S.E.2d 917. See Todd v. Fellows, 107 Ga.App. 783(4), 131 S.E.2d 577.
8. We find no merit in the assertion that the trial court denied a motion for new trial on the general and special grounds. Those grounds are the same as listed above. For the reasons stated hereinabove, we find no error.
9. In the remaining enumerations of error defendant Flake claims it was error for the trial court to refuse to direct a verdict of acquittal in her favor and the evidence was insufficient as a matter of law to convict her as aiding and abetting defendant Lush. A directed verdict of acquittal is required only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom demands a verdict of acquittal or not guilty as charged. See OCGA § 17-9-1 (formerly Code Ann. § 27-1802 (Ga.L.1971, pp. 460, 461)); Phillips v. State, 238 Ga. 632, 633-634, 235 S.E.2d 12.
The state's evidence here established that the defendant Flake was arrested and physically present at the location of the clandestine laboratory. The laboratory was located in an apartment rented by the defendant Flake (albeit also by the defendant Lush). The defendants had been observed almost every day or several times a week at the...
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