Patterson v. State

• Decision Date: 19 March 1976
• Docket Number: No. 51545,3,2,Nos. 1,51545,s. 1
• Citation: Patterson v. State, 226 S.E.2d 115, 138 Ga.App. 290 (Ga. App. 1976)
• Parties: R. L. PATTERSON v. The STATE
• Court: Georgia Court of Appeals

Page 115

226 S.E.2d 115

138 Ga.App. 290

R. L. PATTERSON v. The STATE.

No. 51545.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 19, 1976.

Rehearing Denied April 1, 1976.

Albert M. Horn, Reber Boult, Atlanta, for appellant.

Oliver & Oliver, Robert F. Oliver, Dist. Atty., pro tem., Don McGowan, Clarkesville, for appellee.

PANNELL, Presiding Judge.

The defendant was convicted of possessing marijuana in violation of the Georgia Controlled Substances Act. He was sentenced to two years and fined $2,000. He appeals the judgment of conviction and sentence entered thereon.

The details of the search and seizure and of appellant's arrest can be found in Patterson v. State, 133 Ga.App. 742, 212 S.E.2d 858. The evidence at the trial of the case showed that a GBI agent observed appellant gathering marijuana growing in a field near appellant's house. Appellant was placed under arrest, and the growing marijuana was seized. The State Crime Laboratory reported that all samples submitted to it were marijuana. The marijuana which was sent to the State Lab was not introduced into evidence; it had been destroyed by the lab after three years pursuant to a routine department procedure.

The State did introduce samples of alleged marijuana which had been seized by the sheriff and kept in his possession until the date of trial. This particular 'marijuana' had not been tested by the State Lab; however, the testimony showed that the samples tested by the State Lab and those samples kept by the sheriff were all seized at the same time and place.

Appellant testified that the 'weed' had always infested his cornfield, and he was trying to get rid of it. He said that his father had told him it was 'Indian Hemp,' which his uncle had grown back in 1917.

1. Appellant argues that he was denied rights of due process, confrontation, and compulsory process in that he was denied the opportunity to examine a critical piece of evidence. The marijuana which was examined by the State Lab was held by the lab from 1971 until February, 1974. It was then routinely destroyed. Appellant demanded samples for purposes of his defense in April, 1975. At this point in time, it was impossible for the State to provide samples for his examination. The question presented is whether appellant's rights of confrontation, due process, and compulsory process were violated by the absence of an independent analysis of the alleged marijuana.

'While defense needs for independent analysis and expert testimony may have been held to be a constitutionally protected right in other jurisdiction, People v. Watson, 36 Ill.2d 228, 221 N.E.2d 645; State v. Campbell, Iowa, 215 N.W.2d 227; State v. Williams, Iowa, 207 N.W.2d 98, we find no authority in Georgia nor under the Federal Constitution for such a rule. Cf. Taylor v. State, 229 Ga. 536, 192 S.E.2d 249; Moore v. State, 113 Ga.App. 738, 739, 149 S.E.2d 492; Roach v. State, 111 Ga.App. 114(3), 140 S.E.2d 919.' Butler v. State, 134 Ga.App. 131, 134, 213 S.E.2d 490, 493. Appellant argues that a case decided after the Butler case held that there was a right to an independent analysis of a piece of evidence whose nature was subject to varying expert opinion. See Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975). Assuming, but not deciding that Barnard would be controlling under the present set of facts, it is not binding authority on this court.

Further, there was no evidence in the present case tending to show that the examiner from the State Lab was either biased or incompetent. There was no evidence that appellant was denied the opportunity to confer with the examiner. The method of examination and the results thereof were subject to appellant's scrutiny through cross-examination of the examiner from the State Crime Lab.

It is our opinion that appellant's constitutional rights were not violated by an absence of an independent analysis of the marijuana, which was examined by the State Lab.

2. 'The state is not required to introduce the illegal drug itself into evidence.' Davis v. State, 135 Ga.App. 203, 205, 217 S.E.2d 343, 345.

3. The defendant previously appealed the denial of his motion to suppress. This court held that the trial court properly overruled appellant's motion to suppress the marijuana seized from appellant's open field. Patterson v. State, 133 Ga.App. 742, 212 S.E.2d 858. Appellant again urges error on the admission of this evidence. 'A decision rendered upon a state of facts appearing in the record, in which the legal effect of those facts is declared, is, in all subsequent proceedings in the case, a final adjudication of the rights of the parties, from which the court cannot depart, nor the parties relieve themselves, so long as the facts themselves appear without material qualification.' Moorman v. Williams, 107 Ga.App. 640, 131 S.E.2d 238. The facts brought out at the trial of the case were not materially different from those facts considered by this court on the prior appeal. It follows that the trial court committed no error in overruling appellant's motion to suppress the marijuana seized in appellant's open field.

4. Appellant's motion to suppress evidence seized in appellant's house and the curtilage thereof was granted. His motion to suppress evidence seized from the open field near his house was denied. Appellant argues that the trial court committed error in allowing evidence and testimony relating to marijuana when it was not properly shown to have come from the fields rather than from the house or curtilage.

Appellant has pointed to no objection made to any evidence on the basis of its being from the house or curtilage. Further, we have been unable to find any such objection in the transcript. Moreover, the evidence shows that all of the admitted testimony and evidence related to marijuana seized from appellant's open field or from the jeep which appellant was driving at the time of his arrest. It follows that appellant's enumeration of error number 4 is without merit.

5. The sheriff testified that he seized some leaves from plants in appellant's open field and placed them in a plastic bag. He said that the plants looked identical to marijuana plants, which he had observed on previous occasions. The sheriff took the leaves to the jail and kept them in his office files. Later, he moved the bag containing the leaves to his home and kept it in his chest of drawers, until the date of trial. The sheriff testified that the leaves were in his exclusive possession from the date they were seized until the trial; and the appearance of the leaves was unchanged.

Defense counsel objected to the trial court's admitting this substance into evidence on the grounds that the State had not shown 'exclusive custody.' 'In proving chain of custody, the state is not required to show that the substance was personally guarded each minute it is in one's custody, and in the absence of a showing to the contrary, the chain of custody is not thereby by broken . . . In the absence of evidence of tampering with the substance, the chain of custody has not been shown to be broken.' Davis v. State, 135 Ga.App. 203, 204, supra. The testimony of the sheriff shows that the evidence was in his custody from the date it was seized until the date of the trial. There was no evidence tending to show any tampering with the evidence. It follows that the trial court did not err in overruling appellant's objection to the evidence.

Appellant urges other grounds upon which the trial court should have excluded the alleged marijuana leaves. None of these grounds was raised at the trial level and cannot be argued for the first time on appeal.

6. The sheriff and several GBI agents obtained a search warrant for appellant's residence and proceeded to appellant's house to search for marijuana. The sheriff testified that upon their arrival at appellant's residence, '. . . one of us told him we had a search warrant, looking for marijuana and he said, yeah, I've had the dam (sic) stuff up over here for about ten year. I'm trying to get rid of it right now.' The sheriff repeated this same testimony during the course of direct examination.

The next witness was one of the GBI agents, who accompanied the sheriff to appellant's home. He testified that appellant never indicated that he knew the substance growing in his fields was marijuana. The judge then asked the witness the following question: 'Well, the question that's in my mind I'm sure it's in the jury's mind, you just heard Sheriff Marly Cannon say that he told Mr. Patterson he come there to search for marijuana and Mr. Patterson said, the dam (sic) stuff's been growing in my field for ten years. I'm trying to get rid of it right now. Did you hear that and if not can you make any explanation as to why you . . .' The witness answered: 'The only way that I could say I didn't hear it, I was explaining is that obviously Sheriff Cannon knew Mr. Patterson and as a matter of procedure we let the sheriff talk with the people that he knew. In a lot of instances a local person might tell the sheriff something that he knew that he wouldn't tell me or wouldn't tell a stranger he didn't know. So, you know I would stand back and let the sheriff make the initial conversation, handle it and then go from there but I don't recall this particular conversation . . .' Defense counsel then objected to the trial court's comparing the testimony of the two witnesses. The trial judge responded to this objection as follows: 'I don't mean to be comparing testimony Mr. Horn I'm trying-I would think that my question would benefit your client, if it benefited anybody. But one witness has testified to something that this witness apparently didn't hear and his statement was that he approached the residence with the Sheriff and I wondered why he didn't hear it if it was said.' (Emphasis supplied.)

Appellant urges error in the trial court's question to the GBI agent. He argues that the judge's...