Woods v. State

• Decision Date: 21 January 1977
• Citation: 552 S.W.2d 782
• Parties: Johnny Odis WOODS, Appellant, v. STATE of Tennessee, Appellee.
• Court: Tennessee Court of Criminal Appeals

Page 782

552 S.W.2d 782

Johnny Odis WOODS, Appellant, v. STATE of Tennessee, Appellee.

Court of Criminal Appeals of Tennessee.

Jan. 21, 1977 Certiorari Denied by Supreme Court May 9, 1977.

Jay Fred Friedman, Memphis, for appellant.

R. A. Ashley, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Richard S. McNeese, Asst. Dist. Atty. Gen., William E. Frulla, Asst. Dist. Atty. Gen., Memphis, for appellee.

OPINION

TATUM, Judge.

The appellant was convicted in Shelby County for possession of marijuana with intent to sell. His punishment was fixed at not less than 2 years nor more than 5 years in the State Penitentiary and a fine of $2,000.00. We affirm the conviction.

On July 20, 1975, a search warrant was executed by police officers in order to search the residence of the appellant. As a result of the search, 165 pounds of marijuana and $13,000.00 in cash was seized. The appellant does not assail the sufficiency of the evidence, but says that the conviction should be reversed because the Court did not allow him a continuance and because the evidence should have been suppressed. The appellant also says that the Court erred in charging the jury with regard to parole and probation.

Immediately prior to the beginning of the trial, the appellant's counsel made an oral motion for a continuance to enable him "to procure witnesses and further investigate the case". The motion was not supported by affidavit. The Court was not apprised as to what witnesses the appellant proposed to procure or what the nature of their testimony was expected to be. The Trial Court denied the continuance and the appellant assigns this as error.

The appellant was indicted on October 28, 1975. He was arraigned on November 14, 1975. The case was originally set for trial on January 13, 1976, and was continued to January 27, 1976, at which time it was again continued to February 2, 1976. On February 2, it was reset for February 3, 1976, at which time the trial commenced.

T.C.A. § 19-413 requires that applications for continuances for the purpose of obtaining evidence be supported by a filed affidavit specifying the testimony relied upon. Baxter v. State, 503 S.W.2d 226 (Tenn.Cr.App.1973); Maxwell v. State, 501 S.W.2d 577 (Tenn.Cr.App.1973). A motion for a continuance is addressed to the sole discretion of the Trial Judge. The judgment of the Trial Judge will not be disturbed in the absence of a clear showing of an abuse of discretion, to the prejudice of the defendant. Baxter v. State, supra ; Moorehead v. State, 219 Tenn. 271, 409 S.W.2d 357 (1966). Upon this record, we cannot say that the Trial Court abused its discretion to the prejudice of the defendant in denying his motion for a continuance. Assignment I is overruled.

The second assignment of error is that the Court erred in not granting the appellant's motion to suppress evidence. The motion was based upon allegations of fraud. Under this assignment, the appellant also argues that the search warrant was insufficient on its face to establish probable cause for its issuance, and that the affidavit for the warrant was sworn to by an officer not having any knowledge of the reliability of the informant mentioned in the affidavit.

The search warrant was obtained from a General Sessions Judge of Shelby County on July 20, 1975. The affidavit stated: "On July 20, 1975, the affiants talked to a reliable informer, who has given the affiants information in the past which they found to be true and correct. This reliable informer stated that within the past three (3) days this reliable informer has been inside the above described premises and has seen John Woods storing and selling marijuana inside these premises".

In challenging the sufficiency of the affidavit, the appellant relies on Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The information given by the informant came from his personal observations of the offense and the items to be seized. He had previously supplied accurate information to the law enforcement officers. Under the rules laid down in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); and Dishman v. State, 3 Tenn.Cr.App. 725, 460 S.W.2d 855 (1970), this affidavit is sufficient for an independent determination, by a neutral officer, that probable cause existed.

In neither Aguilar nor Spinelli was the affidavit based upon information received from an eye-witness to the offense. The affidavit before us specifically states that the informant has given correct information in the past and that the affidavit was based upon the informer's personal observation of the offense. It is not necessary that the affidavit detail the reliable information given by the informant in the past. The affidavit is sufficient. See, Owens v. State, 217 Tenn. 544, 399 S.W.2d 507 (1966), and the cases cited therein.

The appellant alleged that fraud was involved in procuring the search warrant. The Trial Judge permitted the appellant to cross-examine the two officers who gave the affidavit for the search warrant, in an effort to show that the affidavit was fraudulent.

The facts stated in the affidavit upon which a search warrant is issued are not subject to contradiction at the trial for the purpose of suppressing the evidence secured by means of the search warrant, absent fraud or collusion. Solomon v. State, 203 Tenn. 583, 315 S.W.2d 99 (1958); Squires v. State, 525 S.W.2d 686 (Tenn.Cr.App.1975); Poole v. State, 4 Tenn.Cr.App. 41, 467 S.W.2d 826 (1971). However, at the hearing outside the presence of the jury, there was no evidence indicating fraud in procuring the search warrant. Officer Case testified that she talked with the informant between July 17 and 19, 1975. She said that the informant worked for her regularly and told her that marijuana was being stored in the residence of the appellant. On July 20, 1975, she and Sgt. Sanders talked with Officer Davis of the Hernando, Mississippi Police Department, and with two persons Officer Davis had in custody on drug charges in Mississippi. These two suspects implicated the appellant's residence as a place where marijuana was stored, but Officer Case said that she did not use this information in procuring the search warrant because she could not vouch for the reliability of these two persons.

Upon returning to Memphis from Hernando, Mississippi on July 20, Officer Case contacted the informant who had recently given her information about the appellant. He confirmed this information and Officers Case and Sanders based their affidavit for the search warrant on the information given her by the regular informant. She did not mention the information she had obtained from the two individuals in custody at Hernando, Mississippi, in the affidavit. After trial, the appellant filed an affidavit signed by Officer Davis, stating that Officer Case and Sgt. Sanders did not inform him, "that they knew about the people who were arrested or that there was any investigation that this information aided in". The affidavit does not contradict the testimony of Officers Case and Sanders or the affidavit for the search warrant. It was not unusual that Officers Case and Sanders did not tell the Mississippi Officer about their confidential informant.

Both Officer Case and Sgt. Sanders signed the affidavit. Sgt. Sanders' testimony was substantially the same as that of Officer Case, but he stated...