Weaver v. State
| Decision Date | 14 February 1978 |
| Docket Number | No. 1,No. 54781,54781,1 |
| Citation | 145 Ga.App. 194,243 S.E.2d 560 |
| Parties | Timothy WEAVER v. The STATE |
| Court | Georgia Court of Appeals |
Al M. Horn, Reber F. Boult, Jr., Atlanta, for appellant.
C. B. Holcomb, Dist. Atty., Frank C. Mills, III, Asst. Dist. Atty., Canton, for appellee.
The appellant, who was convicted for selling heroin, appeals enumerating ten errors. The enumerations are directed at the admission and exclusion of certain evidence, at the charge to the jury, and at the sufficiency of the evidence, but we find no reversible error and affirm.
1. It was not error to admit evidence seized from the appellant's person during a search incident to his arrest for the sale of drugs. Evidence introduced at the hearing on the motion to suppress showed the following: A police informant, who had recently been arrested for drug violations, approached police officers in an apparent attempt to enhance his position with them. He told them that the appellant was engaged in selling illicit drugs, and he produced a red and yellow capsule which he claimed to have bought from the appellant. He likewise furnished the police officers with a description of the appellant. At the officers' request, the informant set up a controlled drug buy wherein he was to meet the appellant in an open area and pay for drugs with marked money, all this under covert surveillance. The concealed police officer watched the informer meet the appellant; he noted that the appellant was acting nervously; and, when he saw the parties apparently complete the transaction, he moved in and arrested the appellant for the sale of drugs. A search of the appellant's person revealed the drugs sought to be suppressed.
In our view, the officer's probable cause to believe that a crime was being committed in his presence was founded on the cumulative effect of the informant's hearsay and the officer's own observations, though either alone would certainly have been insufficient. The only significant question is whether the informer's hearsay meets the legal requirements for hearsay as an underlying source of the probable cause determination. Under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.E.2d 723 (1964), as explicated by Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.E.2d 637 (1969), the reviewing court must be presented with (1) facts from which to conclude that the informer has an ascertainable basis for his knowledge (Cochran v. State, 136 Ga.App. 94, 96, 220 S.E.2d 83 (1975); Lowery v. State, 135 Ga.App. 423, 218 S.E.2d 132 (1975)); and (2) facts from which to conclude that the informant was reliable. McGuire v. State, 136 Ga.App. 271, 273, 220 S.E.2d 769 (1975); Bell v. State, 128 Ga.App. 426, 427, 196 S.E.2d 894 (1973). These facts are readily apparent here. The informant produced a drug capsule, reasonably suspected to be illicit, which he claimed to have purchased from the appellant. This suffices to explain the basis of the informant's knowledge about the appellant's activities. And, the informant, by volunteering information about his possession of the illegal capsule, subjected himself to potential criminal prosecution. Such actions against his penal interest support a conclusion that he was speaking truthfully.
Hence, we conclude that the informant's hearsay was properly relied upon; that when coupled with the officer's direct observations it gave probable cause to believe that the appellant was violating the law; that the arrest and incident search were therefore lawful; and, thus, that the motion to suppress was properly overruled and the evidence was properly admitted at trial.
2. There is no merit in the contention that the trial court erred in refusing to sequester a police officer during the hearing on the motion to suppress, for the officer did not testify at that hearing. Moreover, the officer was later sequestered at the trial, and when he was called to testify no objection was raised on the grounds that he had not been sequestered at the earlier hearing.
3. Similarly, the contention, that the defense was unjustifiably impaired in its investigation of the case by the alleged refusal of the informant to be interviewed, presents nothing for review. No objection was interposed when the informant was called to testify, and the court was...
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...court of appeals sought guidance from another jurisdiction, looking to a decision of the Georgia appellate court, Weaver v. State, 145 Ga.App. 194, 243 S.E.2d 560 (1978), which had addressed similar provisions in the UCSA. In Weaver, the defendant was the target of a controlled drug buy for......
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...cross-examination the prosecutor was entitled to ask defendant why a witness, or witnesses, had not been called. Weaver v. State, 145 Ga.App. 194, 196(4), 243 S.E.2d 560 (1978); Miller v. State, 160 Ga.App. 832(1), 287 S.E.2d 679 (1982); Laster v. State, 178 Ga.App. 825, 826(1), 345 S.E.2d ......
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