Smith v. State

• Decision Date: 12 July 1984
• Docket Number: No. 67910,67910
• Citation: 171 Ga.App. 758,321 S.E.2d 213
• Parties: SMITH v. The STATE.
• Court: Georgia Court of Appeals

Page 213

321 S.E.2d 213

171 Ga.App. 758

SMITH v. The STATE.

No. 67910.

Court of Appeals of Georgia.

July 12, 1984.

Rehearing Denied July 25, 1984.

Certiorari Denied Sept. 4, 1984.

Donald C. Turner, Atlanta, for appellant.

Robert E. Keller, Dist. Atty., Michael D. Anderson, Asst. Dist. Atty., for appellee.

McMURRAY, Chief Judge.

Defendant was convicted of three counts of violation of the Georgia Controlled Substances Act (unlawful distribution of more than one ounce of marijuana; unlawful distribution of methaqualone; and, unlawful possession with intent to distribute methaqualone). Following the denial of his motion for new trial, defendant appeals. Held:

At the time defendant was indicted he was a high ranking officer in the sheriff's office of Fulton County, Georgia. His defense here is based upon a theory to the effect that at the time of his arrest he was engaged in an investigation to determine whether certain other deputies in the department were stealing evidence from an evidence room. The State's theory, however, was that defendant was the moving party in a scheme to steal drugs from law enforcement evidence lockers and then distribute them illegally for the ultimate purpose of making substantial amounts of money for his own profit.

1. Defendant's first enumeration of error is that the trial court erred in denying his motion to test and inspect certain physical evidence such as tapes and recorders entered into evidence at the trial. Defendant had filed numerous pretrial motions for discovery (e.g., motion for discovery and disclosure of exculpatory and mitigating evidence, and motion to inspect, examine and test the physical evidence). At a hearing on the motion to inspect, examine and test the physical evidence, defendant contended that the tape recordings made of conversations were expected to be exculpatory and requested that the State produce same. The assistant district attorney in his "place" stated, however, that he had reviewed same and that there was "nothing exculpatory contained therein and should it become apparent [the State would], certainly provide it immediately." Defense counsel then requested that the court make an in camera inspection of the State's entire file. The court denied the motions, "as to the production of the tapes and the in camera inspection" but granted the motion to divulge exculpatory material insofar as such information had been requested under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Defendant contends that the trial court should have allowed examination of the evidence by imposing appropriate safeguards to insure preservation. To this end, defendant argues that the requested examination was crucial to his case and that its denial deprived him of the means necessary to conduct his defense. The State, however, contends that under Green v. State, 250 Ga. 610, 611, 299 S.E.2d 544, the motion was simply one general in nature and failed to identify any particular critical physical evidence for examination. We agree with the State. There was no showing here that the tapes were in any wise inadmissible on the grounds of lack of authenticity, correctness, improper foundation, inaudibility and irrelevancy. Thus, the trial court did not err in refusing to allow defendant to inspect and examine the tapes and recorders. See Green v. State, 250 Ga. 610, 611, 299 S.E.2d 544, supra; Duckworth v. State, 246 Ga. 631, 636(8), 272 S.E.2d 332; Sabel v. State, 248 Ga. 10, 17-18(6), 282 S.E.2d 61; Tucker v. State, 249 Ga. 323, 326(3), 290 S.E.2d 97; Ellis v. State, 164 Ga.App. 366, 372-373(14), 296 S.E.2d 726.

2. Likewise, we find no error in the trial court's refusal to conduct an in camera inspection of the sound recordings, as well as the remainder of the alleged exculpatory materials in the possession of the State. The requested in camera inspection failed to point out any particular exculpatory, impeaching or otherwise favorable evidence with reference to the tape recordings and same were all produced and played at trial. A reversal of a conviction is not required solely because of the trial court's failure to conduct an in camera inspection. See Tribble v. State, 248 Ga. 274, 276(3), 280 S.E.2d 352; Dickey v. State, 240 Ga. 634, 636(1), 242 S.E.2d 55; Coachman v. State, 236 Ga. 473, 475(3), 224 S.E.2d 36; Ledesma v. State, 251 Ga. 487, 490(10), 306 S.E.2d 629. Compare Rini v. State, 235 Ga. 60, 65, 218 S.E.2d 811. The defendant having failed to show any prejudice by reason of the failure of the court to make the in camera inspection, we find no error. See Reed v. State, 249 Ga. 52, 55-56, 287 S.E.2d 205; Hill v. State, 248 Ga. 304, 305(2), 283 S.E.2d 252; Cooper v. State, 163 Ga.App. 482, 484(3) 295 S.E.2d 161; Duncan v. State, 163 Ga.App. 148, 150(3), 294 S.E.2d 365.

3. The defendant next contends that the trial court erred in sustaining the State's objection to defense counsel's specific questions on voir dire and in not allowing the jurors to be personally identified before striking and selecting the jury. As such, defendant argues that he was denied the right to an impartial jury. This contention is without merit. The court refused to allow interrogation of the jurors as to whether they would promise not to hold the use of vulgar language against the defendant. The State objected on the ground that such question went into the evidence and would require the jurors to make a pre-judgment of the case. The defendant did not, as he now argues, seek to question as to their bias toward the use of vulgar language but sought to demand a promise that the jurors wouldn't hold that against the defendant in any way. The question was improper because it failed to reflect any matter or thing which would show an interest or bias of the juror in the case in chief. The question was properly disallowed. See Berryhill v. State, 249 Ga. 442, 448(5), 291 S.E.2d 685; Waters v. State, 248 Ga. 355, 363, 283 S.E.2d 238; Padgett v. State, 251 Ga. 503, 504, 307 S.E.2d 480. The record here fails to disclose an abuse of discretion by the trial court. See Berryhill v. State, 249 Ga. 442, 448(5), 291 S.E.2d 685, supra; Waters v. State, 248 Ga. 355, 363, 283 S.E.2d 238, supra; Padgett v. State, 251 Ga. 503, 504, 307 S.E.2d 480, supra. As to the remaining portion of this claim of error, it is noted that each juror was identified by name when he was examined by voir dire. The complaint here is not supported by the record. It is apparent from the record that the defendant was afforded an opportunity for individual voir dire of the jury. See State v. Hutter, 251 Ga. 615, 616-617, 307 S.E.2d 910; State v. Graham, 246 Ga. 341, 343, 271 S.E.2d 627. Compare Henderson v. State, 251 Ga. 398, 399-402(1), 306 S.E.2d 645. There is no merit in this complaint.

4. The next complaint is that the trial court erred by allowing the state to rehabilitate certain potential jurors after a challenge for cause by the defendant had been made. However, Strong v. State, 161 Ga.App. 606, 607(4), 288 S.E.2d 921, implicitly recognizes that it is permissible to ask further questions following a challenge for cause, and it is enough if the juror states that he will abide by the law and decide the case based upon the evidence. See Jordan v. State, 247 Ga. 328, 338-340(6), 276 S.E.2d 224; Berryhill v. State, 249 Ga. 442, 447(4), 291 S.E.2d 685, supra. We find no abuse of discretion in the denial of the challenge for cause of these two jurors. See Hughes v. State, 161 Ga.App. 824, 825(3), 288 S.E.2d 916; Johnson v. State, 209 Ga. 333(2), 334, 72 S.E.2d 291; Grant v. State, 160 Ga.App. 837, 840-842(4), 287 S.E.2d 681.

5. Defendant next contends it was error to allow into evidence over objection the introduction of certain tape recordings and a transcript thereof, the same being inadmissible under Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga.App. 207, 211-212, 88 S.E.2d 167; and Palmer v. State, 158 Ga.App. 743, 744, 282 S.E.2d 201. In the case sub judice, the seven-element foundation as approved in Central of Ga. R. Co. v. Collins, 232 Ga. 790, 793(3), 209 S.E.2d 1, was fully met, and we find no merit in this complaint. Harris v. State, 237 Ga. 718, 723-725(5), 230 S.E.2d 1; Dick v. State, 246 Ga. 697, 704-705, 273 S.E.2d 124. This ground of alleged error is not meritorious.

6. The trial court did not err in sustaining an objection (on the grounds of irrelevance and immateriality) to the cross-examination of a State witness concerning a report that the windows of his car had been shot out. At the time of the objection, defendant argued that further questioning of the witness would produce answers which would implicate defendant as being the person responsible for the windows being shot out, thereby showing the witness' animus toward him. However, the record reflects that this line of questioning involved new matter which had not been brought out by direct examination. Furthermore, defendant's counsel had already cross-examined this witness at some length and had discussed various incidents which may have affected his credibility. Although a defendant is entitled to a thorough and sifting cross-examination of the witnesses against him,...