Whiddon v. State

• Decision Date: 05 January 1982
• Docket Number: Nos. 62488,62605 and 62606,s. 62488
• Citation: 160 Ga.App. 777,287 S.E.2d 114
• Parties: WHIDDON v. The STATE (three cases).
• Court: Georgia Court of Appeals

Page 114

287 S.E.2d 114

160 Ga.App. 777

WHIDDON v. The STATE (three cases).

Nos. 62488, 62605 and 62606.

Court of Appeals of Georgia.

Jan. 5, 1982.

J. Patrick Ward, Cairo, for appellant.

Gilbert J. Murrah, Dist. Atty., Edward C. Parker and Leland K. Hawks, Asst. Dist. Attys., Nicholas G. Dumich, Asst. Atty. Gen., for appellee in all cases.

POPE, Judge.

Merline Whiddon and Sue Pollock were indicted on four counts of violating the Georgia Controlled Substances Act. Count I charged them with possession of pethidine (Demerol); Count II, possession of ethchlorvynol (Placidyl); Count III, possession of diazepam (Valium); Count IV, possession of butorphanol tartrate (Stadol). Pollock pled guilty to Counts I, II and IV; the state entered nolle prosequi as to Count III. Pollock testified on behalf of the state at Whiddon's trial. Following that trial, Whiddon was found guilty as to Counts II and III and was acquitted as to Counts I and IV. In addition to an appeal alleging 16 trial-related enumerations of error, Whiddon appeals the trial court's denial of her request for bond pending appeal and also the trial court's transferring her sua sponte from the county in which she was convicted to custody in another county.

The Trial

1. At the time appellant and Pollock were alleged to have come into possession of the controlled drugs named in the indictment, appellant was the director of nursing at Grady General Hospital in Cairo, Georgia. The drugs were purportedly acquired from the hospital's pharmacy on the pretense of being dispensed to patients but converted to appellant's and Pollock's personal use. During the course of the state's investigation of this case, appellant gave an incriminating, written statement to two law enforcement officers. She first enumerates as error certain findings made by the trial court following a Jackson-Denno ¹ hearing held for the purpose of determining the voluntariness of that statement.

The transcript of the hearing shows that although both law enforcement officers were sworn as witnesses at the hearing, the state utilized the testimony of only one and then rested its case. Appellant chose not to offer any evidence but argued that the state had not established a prima facie showing of voluntariness because only one half of the "team" had testified. The trial court ruled that even though only one of the officers had testified, the state had established "a prima facie case of voluntariness sufficient to submit to the jury."

The transcript of the hearing clearly reveals that the trial court made the required primary finding of voluntariness before appellant's statement was introduced at trial. See Brazell v. State, 140 Ga.App. 340, 231 S.E.2d 105 (1976); Jackson v. State, 124 Ga.App. 488(2), 184 S.E.2d 185 (1971). That finding of voluntariness is supported by a preponderance of the evidence. See Highfield v. State, 246 Ga. 478(6), 272 S.E.2d 62 (1980). Although the state offered only the testimony of one of the officers, appellant was fully aware that two law enforcement officers had been present when she made her statement. The officer who did not testify was available at the hearing, yet appellant elected to offer no evidence in rebuttal. Under the circumstances in this case we are not persuaded that the state's failure to call both officers denied appellant her right to a full investigation of all circumstances surrounding her statement. Compare Porter v. State, 143 Ga.App. 640(2), 239 S.E.2d 694 (1977). See also Greeson v. State, 97 Ga.App. 245(2), 102 S.E.2d 503 (1958). Therefore, enumerations Nos. 1 and 2 are without merit.

2. Appellant's enumerations Nos. 3 through 11 inclusive cite as error several instructional deficiencies in the trial court's charge to the jury. The record shows that following that charge, the trial court inquired as to whether either party had any objection to the charge; both appellant and the state responded in the negative. Accordingly, "appellant has waived [her] right to enumerate error by failing to respond to the court's inquiry on any objections to the charge." White v. State, 243 Ga. 250, 251, 253 S.E.2d 694 (1979). In any event, our review of the entire charge given in this case reveals no error for any reason asserted by appellant.

3. In her twelfth enumeration appellant asserts that the trial court "throughout the defense of the case ... intimated an opinion as to the facts which may or may not have been proved, was argumentative, and prosecutorial in tenor, manner and tone."

The tone of voice or emphasis used by the trial court is not reviewable. Williams v. State, 170 Ga. 886(3), 154 S.E. 363 (1930); Perdue v. State, 147 Ga.App. 648(9), 249 S.E.2d 657 (1978). Moreover, the trial court may propound questions to any witness for the purpose of fully developing the truth of the case; the extent of such an examination is a matter within the sound discretion of the court. Wilson v. State, 229 Ga. 224(2), 190 S.E.2d 78 (1972). The trial transcript in this case does not support appellant's assertion of judicial misconduct in this regard. While the trial court in this case did ask occasional questions of witnesses, nothing in the transcript even remotely resembles a situation in which the trial court intimated an opinion as to the facts of the case or in which questioning by the trial court was marked by a prosecutorial zeal such as to prevent a fair trial. Compare Brundage v. State, 143 Ga.App. 1(2), 237 S.E.2d 473 (1977); United States v. Hoker, 483 F.2d 359(1) (5 Cir. 1973). We find this enumeration to be without merit.

4. During the course of the trial the court ruled inadmissible certain tape recordings which contained conversations between appellant and Sue Pollock on the ground that a proper foundation had not been laid. However, the state was later permitted over objection to cross examine appellant as to one of these conversations for the purpose of impeachment. This was not error. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Accord, United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980); Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). Enumeration No. 13 is without merit.

5. Appellant contends that the trial court failed to rule on the admissibility of State's Exhibits 1-14 thereby denying her the opportunity to properly conduct her defense. However, since Exhibits 1-13 concerned only Count 1 of the indictment and appellant was acquitted on that count, any error in the trial court's failure to rule as to the admissibility of those exhibits was harmless. The record contradicts appellant's contention that the trial court failed to rule on the admissibility of State's Exhibit 14, appellant's written statement. Accordingly, enumeration No. 14 has no merit.

6. During cross examination of the hospital's chief of security, appellant sought to inquire into the chief's social relationship with another hospital employee for the purpose of impeachment. The trial court sustained the state's objection to the question on the basis that this information had no relevance to the issues in the case. A witness may not be impeached as to a matter which has no relevance to the substantial matters in dispute. Hill v. State, 159 Ga.App. 489(2), 283 S.E.2d 703 (1981); Gilbert v. State, 159 Ga.App. 326(2), 283 S.E.2d 361 (1981). Since the social life of the hospital's chief of security had no bearing on the issues in this case, appellant's enumeration No. 15 is not meritorious.

7. In her sixteenth enumeration appellant challenges the sufficiency of the evidence to support the verdict. Appellant's admitted accomplice, Sue Pollock, testified at trial that she had supplied appellant with Placidyl and had observed appellant take Valium from the hospital's emergency room. Pollock was a licensed practical nurse (LPN) at Grady General Hospital; appellant was her supervisor during the time period relevant to this case. Pollock was not legally permitted to dispense drugs absent a doctor's order. Although appellant introduced evidence showing that she had a prescription for both Placidyl and Valium, she admitted at trial that she had obtained Valium from Pollock. In her sworn statement appellant admitted that she had obtained Placidyl from Pollock. In neither instance was Pollock authorized to dispense the drugs to appellant. Viewing the evidence in this case in a light most favorable to upholding the verdict, we conclude that any rational trier of fact could have found that appellant had illegally obtained both Placidyl and Valium in violation of the Georgia Controlled Substances Act. Compare Wood v. State, 156 Ga.App. 810(1), 275 S.E.2d 694 (1980).

The Bond

8. Following her conviction and sentencing appellant filed a motion to stay execution of the judgment and for bond pending her appeal. After a hearing this motion was denied on two grounds. The trial court found (1) there was a substantial risk that appellant would pose a danger to others and was likely to commit a serious crime, and (2) her appeal was frivolous and taken only for the purpose of delay.

" 'The granting or refusing of bail in felony cases after indictment and conviction is a matter within the sound discretion of the trial court, and this court will not control that discretion unless it has been flagrantly abused.' Watts v. Grimes, 224 Ga. 227, 161 S.E.2d 286 (1968). '(T)he burden of seeking a stay of execution and a release on bond is upon the applicant.' Moore v. State, 151 Ga.App. 413, 414, 260 S.E.2d 350 (1979)." Chatham v. State, 153 Ga.App. 483, 265 S.E.2d 835 (1980). In Birge v. State, 238 Ga. 88, 230 S.E.2d 895 (1976), our Supreme Court set forth standards by which to determine whether bail pending appeal should be granted or denied. An affirmative finding by the trial court that any one of the standards has been met will support the denial of the appeal bond. Moore, supra. The trial court in this case...