Miller v. State

• Decision Date: 15 October 1982
• Docket Number: No. 64299,64299
• Citation: 163 Ga.App. 889,296 S.E.2d 182
• Parties: MILLER v. The STATE.
• Court: Georgia Court of Appeals

Page 182

296 S.E.2d 182

163 Ga.App. 889

MILLER v. The STATE.

No. 64299.

Court of Appeals of Georgia.

Oct. 15, 1982.

J. Harvey Davis, Ocilla, for appellant.

Thomas H. Pittman, Dist. Atty., Tifton, Arthur W. Leach, Asst. Dist. Atty., for appellee.

SOGNIER, Judge.

Sale of cocaine. Miller appeals on the general grounds and the denial of two motions for a directed verdict of acquittal. He also contends that the trial court erred by not requiring the state to disclose the identity of an informant; by denying his motion for a mistrial; by refusing to conduct an in camera inspection pursuant to a Brady motion; and by erroneously charging the jury and denying his request for additional argument.

1. The evidence disclosed that on April 11, 1980 a confidential informer took an undercover narcotics agent with the GBI to appellant's home in Ocilla, Georgia. After a brief conversation appellant sold a quarter-ounce of cocaine to the agent for $400. On April 18, 1980 the agent again went to appellant's home and purchased one-half ounce of cocaine from appellant for $825. The agent identified appellant positively as the person who sold the agent cocaine on both occasions. Appellant's wife testified that appellant was not at home on the two nights he allegedly sold cocaine, and appellant denied selling cocaine to the agent.

Such evidence is sufficient to sustain the verdict. The weight of the evidence and credibility of witnesses is for the jury's determination, Armour v. State, 154 Ga.App. 740, 270 S.E.2d 22 (1980), and this court passes on the sufficiency of the evidence, not its weight. Dillard v. State, 147 Ga.App. 587, 588, 249 S.E.2d 640 (1978). We find that a rational trier of fact could find from the evidence adduced at trial proof of appellant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

As the evidence did not demand a verdict of acquittal and there was a conflict in the evidence, it was not error to deny appellant's motions for a directed verdict of acquittal. Sims v. State, 242 Ga. 256, 257 (1-3), 248 S.E.2d 651 (1978).

2. The undercover agent testified that a confidential informant took him to appellant's house and was present on both occasions when appellant sold cocaine to the agent. The agent refused to name the confidential informant, and the trial court ruled that the agent need not disclose the informant's identity. Appellant contends this was error.

In a similar factual situation we held: "Where a person merely takes an undercover police officer to a location and ... introduces the officer to the defendant, and the officer arranges for and buys contraband from the defendant, and the person witnesses such sale, or alleged sale, such person is an informer and not a 'decoy' and a disclosure of his name, address, etc., to the defendant is not required as a matter of law under Code § 38-1102, but rests in the discretion of the trial judge, balancing the rights of the defendant and the rights of the state under all the facts and circumstances." Taylor v. State, 136 Ga.App. 31(2), 220 S.E.2d 49 (1975). The trial court in the instant case was faced with this exact factual situation and exercised its discretion in determining that the witness need not disclose the identity of the informer. We find no abuse of the court's discretion under the facts and circumstances of this case.

3. A second GBI agent testified that subsequent to appellant's last sale to the undercover agent, the witness had been to appellant's residence four or five times on the pending undercover investigation. Appellant objected to such testimony and moved for a mistrial on the ground that such testimony placed his character in evidence by referring to an additional, different investigation. However, after the motion for a mistrial was denied the witness testified that he visited appellant's house on the same investigation which resulted in appellant's trial. Thus, there was no basis for appellant's motion. Further, the testimony was material, as there was a question about the location of appellant's house, and evidence material to the case is not inadmissible because it incidentally puts a defendant's character in issue. Hughes v. State, 239 Ga. 393, 397(2), 236 S.E.2d 829 (1977); Guthrie v. State, 147 Ga.App. 351, 356(6), 248 S.E.2d 714 (1978).

4. Appellant's contention relating to the trial court's failure to conduct an in camera inspection of the prosecutor's file after a Brady motion is not supported by the transcript. The trial court stated in this regard: "Let the record show that I have made an in camera inspection of the file. As of today, I find nothing exculpatory in the file." Thus, there is nothing for us to review.

5. Appellant contends the trial court erred by charging the jury that if they believed beyond a reasonable doubt that at any time in the preceding four years appellant had sold cocaine as charged in the indictment they would be authorized to find appellant guilty. However, appellant objected to the charge on the ground that the specific dates of sale were material, so the trial court corrected its charge and advised the jury that they must find that appellant made sales of cocaine on April 11 and April 18, 1980, as set forth in the indictment, before they could find appellant guilty. Thus, the error complained of was corrected...