Welch v. State
| Decision Date | 26 September 1973 |
| Docket Number | No. 48612,No. 3,48612,3 |
| Citation | 202 S.E.2d 223,130 Ga.App. 18 |
| Parties | Marcus A. WELCH v. The STATE |
| Court | Georgia Court of Appeals |
John W. Rogers, H. Gilman Hudnall, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Morris H. Rosenberg, James H. Mobley, Jr., Thomas W. Hayes, Atlanta, for appellee.
Syllabus Opinion by the Court
The defendant appeals from his conviction on two counts of violating the Uniform Narcotic Drug Act and from the denial of his motion for a new trial as amended. Held:
1. The trial judge did not err in overruling the defendant's motion for a directed verdict on the grounds of the alleged insufficiency and illegality of the evidence upon which the grand jury returned the indictment, when the attacks on the indictment were made for the first time at the close of the state's case. See Bryant v. State, 224 Ga. 235, 161 S.E.2d 312 and cits.; Powers v. State, 172 Ga. 1(3), 157 S.E. 195; Farmer v. State,228 Ga. 225(3), 184 S.E.2d 647 and cit.; Summers v. State, 63 Ga.App. 445, 447, 11 S.E.2d 409.
2. The trial judge did not err in overruling the defendant's motion for a directed verdict based upon the alleged insufficiency of evidence adduced during the trial. The refusal to direct a verdict of acquittal is not error unless such a verdict is demanded as a matter of law. Merino v. State, 230 Ga. 604(1), 198 S.E.2d 311; Munsford v. State,129 Ga.App. 547, 549, 199 S.E.2d 843. The verdict in this case was authorized by evidence that an undercover police agent made purchase of cocaine on two occasion from a person whom he identified as the defendant, who was not shown to be an authorized seller. For this same reason, the overruling of the general grounds of the motion for new trial, was likewise not error.
3. The defendant enumerates as error the denial of his request for disclosure of the informer's identity.
The police undercover agent testified that he did not know the defendant, so he took the informer with him to a tavern where the informer identified the defendant for the agent. He further testified that the informer did not introduce him to the defendant, but that the two of them engaged the defendant in conversation, in the course of which the agent indicated to the defendant his desire to purchase illegal drugs; that he followed the defendant alone to a designated residence where the sale was consummated; that the same informer accompanied the agent at the time he arranged for a second purchase from the defendant two days later; that he never purchased drugs in his role as undercover agent without having an informer along.
Georgia public policy supports the nondisclosure privilege. Pass v. State, 227 Ga. 730, 732, 182 S.E.2d 779 and cits. The so-called 'decoy cases,' in which disclosure has been required, are distinguished in Butler v. State, 127 Ga.App. 539, 540, 194 S.E.2d 261 by the fact that the 'decoy,' by taking an active part in the offense by acting as the purchaser in an illegal sale of contraband, became a material witness to the offense charged. In the case at bar, the evidence shows that the function of the informer was to identify the defendant to the agent, who in turn made the negotiations for and consummation of the sale. If an inference can be drawn from the fact that the informer went further than mere identification and engaged in conversation with the defendant-that the informer was known to the defendant and was utilized to make the defendant more willing to effect the sale to the undercover agent who accompanied him-then the defendant was not deprived of the iedntity, hence the testimony, of the informer and the privilege was no longer applicable. Roviaro v. United States, 353 U.S. 53, 60, 77 S.Ct. 623, 1 L.Ed.2d 639 and cits. One reason given for disclosure in Roviaro, supra, p. 64, 77 S.Ct. 623-that the testimony might have disclosed an entrapment-does not require disclosure here, where the defendant in his unsworn statement relied exclusively on the defense of alibi and the inconsistent defense of entrapment was raised neither by the pleadings nor the evidence. See McKibben v. State, 115 Ga.App. 598, 600, 155 S.E.2d 449. Furthermore, the informer was not the only material witness to the illegal sale, as he was in Roviaro. Other reasons for disclosure given in Roviaro do not exist in the case at bar.
The scope of the informer's privilege is in the discretion of the trial judge. Scull v. State, 122 Ga.App. 696, 701, 178 S.E.2d 720 and cit.; Roviaro v. United States, supra, 353 U.S. p. 61, n. 9, 77 S.Ct. 623, and cits. The later cases on the subject allow far more latitude to the trial judge in his determination of the scope of this privilege than do the aforementioned earlier Georgia cases. As the court pointed out in Roviaro, supra, p. 62, 77 S.Ct. p. 628, See also United States v. Ybarra, 9 Cir., 430 F.2d 1230, 1233(8). The record in the case at bar does not show that the trial judge abused his discretion in this regard.
4. 'Every court has power . . . (t)o control, in furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto.' Code § 24-104(4). Accordingly, where the defense counsel had made his final argument and the state's counsel had commenced his argument, but was interrupted by defense counsel's challenge of the record, the trial judge did not abuse his discretion in allowing the jury to recess for lunch and continuing the argument some two hours later upon reconvening after the record had been reviewed and the jury and returned. See Hayes v. State, 58 Ga. 35, 46(3).
5. The defendant enumerates as error the trial judge's failure to charge, without request, on the law of alibi, which the defendant contends was raised by the evidence and by the defendant's unsworn statement. In the absence of the defendant's timely objection in the trial court on the failure to give such instructions, this court can reverse the trial court on this ground only if 'the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.' Spear v. State, 230 Ga. 74, 75, 195 S.E.2d 397, 398.
' Alibi, as a defense, involves the impossibility of the accused's presence at the scene of the offense at...
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