Midura v. State

• Decision Date: 02 July 1987
• Docket Number: Nos. 73764,73765,s. 73764
• Citation: 183 Ga.App. 523,359 S.E.2d 416
• Parties: MIDURA v. The STATE (Two Cases).
• Court: Georgia Court of Appeals

Page 416

359 S.E.2d 416

183 Ga.App. 523

MIDURA v. The STATE (Two Cases).

Nos. 73764, 73765.

Court of Appeals of Georgia.

July 2, 1987.

Billy L. Spruell, Atlanta, for appellant.

Rafe Banks III, Dist. Atty., T. Russell McClelland II, Asst. Dist. Atty., for appellee.

BENHAM, Judge.

Appellants Julie and Henry Midura (Ed) were convicted of possession of marijuana with intent to distribute. In the second portion of a bifurcated trial, Ed Midura was convicted of the possession of firearms by a convicted felon. On appeal, appellants take issue with the sufficiency of the evidence, the denial of their motion to suppress, and the effectiveness of trial counsel.

1. The State presented evidence that approximately 2 1/2 pounds of marijuana were seized during a search of appellants' home. An assortment of drug paraphernalia and a triple beam scale were also found. The officers seized several weapons, including a Kurz .380 semi-automatic pistol and several Smith and Wesson semi-automatic pistols. The presence of the marijuana in appellants' home, coupled with the quantity of marijuana and the presence of scales used to weigh drugs was sufficient evidence of possession of marijuana with an intent to distribute. See McDade v. State, 175 Ga.App. 204(1), 332 S.E.2d 672 (1985).

2. Appellant Ed Midura's contention that the evidence was not sufficient to convict him of possessing firearms while a convicted felon because the weapons were not tendered into evidence is without merit. Clayton v. State, 149 Ga.App. 374(1), 254 S.E.2d 495 (1979). He also contends that the evidence submitted in assessing punishment as a recidivist (see OCGA § 17-10-7 (a)) is insufficient in light of the State's use of "uncounselled" convictions from Clayton County. Inasmuch as it was incumbent upon appellant to provide a transcript of the proceeding (Chancey v. State, 256 Ga. 415(11), 349 S.E.2d 717 (1986)) and none has been filed, we must assume that the evidence presented at the sentencing hearing supported the sentence imposed by the trial court. See Wallace v. State, 166 Ga.App. 900, 305 S.E.2d 674 (1983).

3. Both appellants maintain they were denied effective assistance of counsel at trial. Because appellants are represented on appeal by counsel other than trial counsel, and no motion for new trial was filed, "we remand the case to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel. Smith v. State, 255 Ga. 654(3), (341 S.E.2d 5) (1986)." Hambrick v. State, 256 Ga. 148(5), 344 S.E.2d 639 (1986).

4. Appellate counsel, by expressly adopting the arguments of the allegedly ineffective trial counsel, asserts as error the denial of appellants' motion to suppress evidence seized during a search of their residence and vehicles executed pursuant to a search warrant. Appellants maintain that the scope of the search warrant was overbroad and that the warrant was issued without probable cause in that the reliability of the informant was not demonstrated, and the information given by the informant was stale.

The affiant officer based his February 19, 1985, affidavit upon information received from a "noninformant hearsay declarant" (Devier v. State, 247 Ga. 635(5), 277 S.E.2d 729 (1981)), who was identified in the affidavit and who had admitted her participation in ongoing criminal activity concerning the acquisition and distribution of large quantities of marijuana and cocaine. The officer related that the declarant had told him she had witnessed the purchase of two bales of marijuana from appellant Ed Midura (procured from the basement of his residence) in December 1984, and three additional purchases of "pounds of marijuana and a large volume of cocaine" during December 1984 and January 1985. The declarant stated that appellant Ed Midura was the supplier for a number of other drug dealers, which information coincided with "known intelligence" on the dealers. The affiant found the Midura residence as described by the declarant, and also found Ed Midura to have been twice convicted of drug violations and arrested on drug charges five other times. A GBI agent supplied the affiant with information indicating appellant Ed Midura had been "in the business of buying and selling drugs over the past 3 years...."

" 'The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... concluding" that probable cause existed.' " State v. Luck, 252 Ga. 347, 348, 312 S.E.2d 791 (1984). Inasmuch as the declarant was named, was a declarant against penal interest, and her statements were based upon personal observation, the magistrate had a substantial basis for crediting her hearsay. Lewis v. State, 255 Ga. 101(2), 335 S.E.2d 560 (1985); Devier v. State, supra; Peacock v. State, 170 Ga.App. 309(1), 316 S.E.2d 864 (1984).

Appellants also argue that the declarant's information was stale, noting the warrant was issued approximately one month after the declarant's observation of appellants' purported criminal activity. "Time is assuredly an element of the concept of probable cause. [Cit.] However, the precise date of an occurrence is not essential. Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant. [Cit.] When the affidavit indicates the existence of an ongoing scheme to sell drugs, the passage of time becomes less significant than would be the case with a single, isolated transaction. [Cit.]" State v. Luck, supra 252 Ga. at 347, 312 S.E.2d 791. The trial court did not err in failing to find the declarant's information stale.

Appellants base their contention that the search warrant was overbroad on their assertion that their residence is a duplex and the police had probable cause to search the basement apartment only. However, appellant Linda Midura admitted that the outward appearance of the home was that of a single-occupancy structure, and that she and her husband had access to the basement apartment, a...