Millwood v. State, 65555
| Decision Date | 15 April 1983 |
| Docket Number | No. 65555,65555 |
| Citation | 166 Ga.App. 292,304 S.E.2d 103 |
| Parties | MILLWOOD v. The STATE. |
| Court | Georgia Court of Appeals |
J. Alfred Johnson, Julian M. Treadaway, Marietta, for appellant.
Thomas J. Charron, Dist. Atty., James T. Martin, Asst. Dist. Atty., for appellee.
Appellant was tried and convicted of delivery and distribution of marijuana in violation of OCGA § 16-13-30 of the Georgia Controlled Substances Act. He enumerates seven errors in this appeal.
1. The first enumeration of error challenges the ruling of the trial court allowing the prosecuting witness S.A. Akers to remain in the courtroom. Counsel for the state represented that Akers was "the main prosecuting witness in this case, and he is essential to my presentation of the case." "Under these circumstances, there was no abuse of discretion by the trial judge [in permitting Akers to remain in the courtroom]." Hall v. State, 239 Ga. 832(3), 238 S.E.2d 912.
2. Appellant's second enumeration of error challenges the trial court's denial of his motion for a directed verdict of acquittal, which was based on the alleged failure of the state to prove possession of marijuana by appellant. We have reviewed the entire record and conclude that there was ample evidence from which any rational trier of fact could have concluded that appellant was guilty of every essential element of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. The trial court properly denied the motion for directed verdict. Paulk v. State, 161 Ga.App. 89, 289 S.E.2d 257.
3. Appellant excepts to the trial court's decision to allow Akers to testify that in his opinion the substance seized was marijuana. Akers testified that he had received formal training in the identification of marijuana through the North Georgia Law Enforcement Academy and the Drug Enforcement Administration School in New Orleans, as well as through several seminars. He also testified to two years' experience on the MCS Narcotics Unit of the Cobb County Police Department during which time he has had at least 100 opportunities to evaluate whether substances were marijuana. Under these facts, we find no abuse of discretion on the part of the trial court in permitting Akers to give his opinion as to the identification of the purported marijuana admitted into evidence. Cooksey v. State, 149 Ga.App. 572, 573, 254 S.E.2d 892; Loar v. State, 142 Ga.App. 875, 876, 237 S.E.2d 237.
4. The fourth enumeration of error charges that the trial court erred in expressing an opinion as to the guilt of the accused in violation of OCGA § 17-8-55 (Code Ann. § 81-1104). This enumeration refers to two separate instances, one in which the court stated "[t]he object of all legal investigation is the discovery of the truth, isn't it?", and another in which the court stated "[t]hat is what we want is the truth." Both statements were made by the court in connection with rulings on evidentiary matters. Our review of the record and the context within which each remark was made does not reveal that the trial court was expressing an opinion about the guilt or innocence of the accused or even commenting on the evidence in violation of OCGA § 17-8-55 (Code Ann. § 81-1104). See Hamilton v. State, 91 Ga.App. 299(3), 85 S.E.2d 557.
5. Appellant's fifth enumeration of error challenges the admission of a report from the state crime laboratory and a property control form from the MCS Narcotics Unit on the ground that both documents were inadmissible hearsay. It is clear that this enumeration is without merit. The persons with first hand knowledge of the contents of each document testified at trial, and the trial judge was authorized to conclude that each document was made in the regular course of business and that it was in the regular course of business to make each document. It was not error to admit either document. Guardian of Ga. v. Granite Equip. Leasing Corp., 130 Ga.App. 514(6), 203 S.E.2d 733. Furthermore, admission of the documents could not be harmful error in view of the fact that those with personal knowledge testified as to their content. See Patrick v. State, 150 Ga.App. 266, 267, 257 S.E.2d 356, and cases cited therein.
6. The admission of the property control form was also excepted to on best evidence grounds. See OCGA § 24-5-4 (Code Ann. §§ 38-203, 38-205). The record discloses, however, that this exhibit was a carbon original, which is admissible as primary evidence. Bldrs. Homes v. Wallace Pump &c. Co., 128 Ga.App. 779(4), 197 S.E.2d 839. This enumeration is, accordingly, without merit.
7. Appellant's final enumeration of error asserts that he was denied his Sixth Amendment right to counsel when the court, after inquiring into the jury's numerical breakdown, recharged the...
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