Raines v. State, 75508

• Decision Date: 07 March 1988
• Docket Number: No. 75508,75508
• Citation: 186 Ga.App. 239,366 S.E.2d 841
• Parties: RAINES v. The STATE.
• Court: Georgia Court of Appeals

Page 841

366 S.E.2d 841

186 Ga.App. 239

RAINES v. The STATE.

No. 75508.

Court of Appeals of Georgia.

March 7, 1988.

Alan B. Waln, Norcross, for appellant.

Robert E. Keller, Dist. Atty., Clifford A. Sticher, Asst. Dist. Atty., for appellee.

SOGNIER, Judge.

Appellant was convicted of the offense of trafficking in cocaine and he appeals.

The record reveals that appellant and his traveling companion, Ojo Arewa, were stopped by law enforcement agents while passing through the Atlanta airport en route home to Columbus, Ohio from a three-day trip to Miami. Both consented to a search, and no contraband was found on appellant, who was cooperative, identified himself properly, and produced his airline ticket. The search of Arewa unearthed more than 28 grams of a mixture with a purity of more than 10 percent cocaine. Appellant and Arewa were both arrested and indicted for the offense of trafficking in cocaine. Appellant's motion to sever his trial from that of Arewa was granted, and prior to appellant's trial, Arewa was tried and convicted.

1. In his first enumeration of error, appellant asserts the trial court erred by denying his motion for a continuance, sought on the basis that appellant had been unable to obtain the transcript of the testimony Arewa gave at his own trial, which was needed for purposes of cross-examination. "The refusal of a motion to continue will not be reversed unless it is manifest that there has been an abuse of discretion on the part of the trial judge. [Cits.]" Chesser v. State, 168 Ga.App. 195, 197, 308 S.E.2d 589 (1983). In the instant case, Arewa's trial had taken place approximately a month before appellant's trial, and no evidence was proffered at the hearing on appellant's motion for continuance, which took place the day before trial, that the transcript had been previously requested. Moreover, Arewa freely admitted both on direct and cross-examination that his testimony against appellant differed substantially from the testimony he gave at his own trial, and stated that his previous testimony had been perjured. Further, when appellant's case was called for trial, appellant's counsel announced "ready," and "the announcement of ready constitutes a waiver of [appellant's] right to a continuance. [Cit.]" Whatley v. State, 162 Ga.App. 106(1), 290 S.E.2d 316 (1982). Under these circumstances, we find no abuse of the trial court's discretion in denying appellant's motion for a continuance.

2. Appellant contends the trial court erred by denying his motion for a directed verdict of acquittal because the only evidence linking appellant to the crime charged was that of Arewa, an alleged accomplice. See OCGA § 24-4-8. However, the record does not support this contention. Arewa testified that the trip to Florida was instigated by appellant for the purpose of purchasing cocaine, and that the cocaine was bought with appellant's money. This testimony was corroborated by the testimony of Arewa's brother, who testified he was present on several occasions when the plans were discussed. " 'Under (OCGA § 24-4-8), testimony of an accomplice must be corroborated by either another witness or by corroborating circumstances. The corroboration, however, need not be sufficient to warrant a guilty verdict or prove every material element of the crime; it need only tend to connect and identify the defendant with the crime charged. [Cit.]' [Cit.]" Fowler v. State, 171 Ga.App. 491, 492(1), 320 S.E.2d 219 (1984). In light of the fact that only slight corroboration connecting appellant with the crime is necessary, the denial of the motion for a directed verdict of acquittal was not error. See Quaid v. State, 132 Ga.App. 478, 483(1), 208 S.E.2d 336 (1974).

3. Appellant next maintains the trial court erred by failing to qualify his witness as an expert. We do not agree. Appellant's witness, Dr. Benjamin Maleka, a professor at Ohio State University Medical School and a friend of appellant and his family, was asked whether, in his opinion, appellant used cocaine. The trial court sustained the State's objection to this question. However, the opinion that appellant was not a user of cocaine, which had been ruled out by the court, was subsequently given in response to another question. Thus, even assuming the trial court's failure to qualify Dr. Maleka as an expert in this regard was erroneous, appellant has shown no harm. "It is axiomatic that ' "(h)arm as well as error must be shown to authorize a reversal by this court." [Cit.]' [Cit.]" Anderson v. State, 183 Ga.App. 313(3), 358 S.E.2d 888 (1987). In addition, the record reflects that Dr. Maleka was never tendered to the court as an expert in the recognition or identification of cocaine users, nor was a proper foundation laid for such a tender. Thus, the record fails to support this enumeration and it presents nothing for us to review. Halsell v. State, 183 Ga.App. 549, 550, 359 S.E.2d 393 (1987).

4. In his remaining enumerations, appellant asserts error in three charges given by the trial court.

(a) We find no merit in appellant's contention that the trial court erred by failing to use the word "evidence" instead of the word "testimony" in instructing the jury regarding impeachment as follows: "If you find that a witness has been successfully impeached by proof of previous contradictory statements, you may disregard that testimony unless it is corroborated by other credible testimony." The only evidence in question was testimony, and thus we find no...