Smith v. State
| Decision Date | 09 September 1976 |
| Docket Number | No. 1,No. 52415,52415,1 |
| Citation | 228 S.E.2d 705,139 Ga.App. 515 |
| Parties | J. E. SMITH v. The STATE |
| Court | Georgia Court of Appeals |
Stephen A. Kermish, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Harvey Moskowitz, Asst. Dist. Attys., Atlanta, for appellee.
The defendant appeals from his conviction of violation of the Georgia Controlled Substances Act.
1. The appellant was admitted to bail and was present for the first day of his trial. Court was adjourned overnight, and when it was reconvened the next morning, the appellant did not reappear. Appellant's retained counsel objected to trying the appellant in his absence. The judge noted that the appellant had been instructed to be in court. Defense counsel then stated, whereupon the judge replied, 'Well, the court did not excuse him,' and continued with the trial. After the verdict of guilty was rendered, the judge conducted a presentence hearing over defense counsel's objection, and ruled that he would give the defendant an opportunity to be heard 'when and if he is arrested or brought in on a warrant.' The judge then announced his intention to sign an arrest warrant.
The appellant now contends, apparently for the first time on appeal, that his absence was not voluntary, but a 'product of his illness'; that 'the continuing of the trial without him caused him to become confused and afraid for his liberty'; that the trial should have been halted and a determination made as to the reason for his absence; and that his confrontation rights, guaranteed by both the Georgia and Federal Constitutions, were violated.
Byrd v. Ricketts, 233 Ga. 779, 780, 213 S.E.2d 610, 611.
The providential (including illness) prevention of a party from attending his trial may be grounds for a continuance where his counsel states in his place that he cannot go safely to trial without his presence. See Code Ann. § 81-1412 and cases annotated under catchword 'Illness.' In the present case, counsel, because of his not knowing the reason for his client's absence, was unable to make the requisite formal and proper motion for continuance (Horton v. State, 132 Ga.App. 407, 208 S.E.2d 186); therefore, the trial judge could assume that the defendant had voluntarily absented himself from the trial, thereby waiving his confrontation rights.
Counsel for the defendant had available the remedy of making an affidavit that on the trial he was ignorant of the cause of the defendant's absence, and could not, therefore, move for a continuance, and that his presence and testimony were necessary to a successful defense of the case, and moving for a new trial on this ground. Cleveland Natl. Bank v. Reynolds, 76 Ga. 834. However, the defendant's 'out of time motion for new trial' specified as to this ground merely 'continuing with the trial while the defendant was absent,' without making the requisite showing set out hereinabove. The burden of determining the cause of the defendant's absence was on his counsel, not on the trial judge. Therefore, the issue as to the legal justification, if any, for the defendant's absence, not having been properly raised, as it must have been, before the trial judge, cannot be reviewed where it is raised for the first time on appeal to this court. Anderson v. State, 129 Ga.App. 1(2), 198 S.E.2d 329, and cits. The first enumerated error is without merit.
2. The appellant contends that the court erred in permitting the defendant's statement, that all items found in his apartment were his property, to be admitted without first making an independent determination of voluntariness. The statement was made both at the scene of the search and at a preliminary hearing at which he was represented by retained counsel, and after having been advised of his 'Miranda rights.' Furthermore, no objection to the admission on this ground was made at trial, thus presenting nothing for review on appeal. Mallory v. State, 230 Ga. 657(2), 198 S.E.2d 677; Archie v. State, 137 Ga.App. 386(2), 224 S.E.2d 64. The second enumerated error is without merit.
3. In the third enumerated error it is contended that the amount of heroin found was not proved to be of a usable quantity, citing Marshall v. United States, 229 A.2d 449 (D.C.App.1967); People v. Leal, 64 Cal.2d 504, 512, 50 Cal.Rptr. 777, 413 P.2d 665; Wallace v. State, 131 Ga.App. 204(2), 205 S.E.2d 523.
In Wallace, supra, this court found that it was not necessary on that record to decide whether there is some minimum amount of an illegal substance below which no claim of intentional possession will be sustainable, because there was evidence indicating that the amount of contraband (marijuana) seized there was such as might be found in a substantial fraction of, though less than a whole, marijuana cigarette. The court further considered the surrounding circumstances of the careful wrapping and storage of the contraband, distinguishing the possession from an 'unwitting possession,' such as 'an accumulation of dust or other accretions in a defendant's clothing.' Moreover, the amount of marijuana possessed is relevant because of the different penalties for less than and greater than one ounce. Code Ann. § 79A-9917 (). No such provision is made as to possession of heroin.
In the case sub judice, the circumstantial evidence contraindicates the defendant's ...
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