Clyatt v. State , 126 Ga. App. 779 ( 1972 )

Stolz, Judge.

On February 2, 1971, at 4:25 p.m., Atlanta Police Officer C. L. Ellington presented Judge T. C. Little of the Atlanta Municipal Court an application for a search warrant containing the following affidavit: "Received information from a reliable and confidential informant who has furnished me information in the past 90 days that resulted in one arrest and recovery of marijuana, opium derivatives and dangerous drugs, furnished the following information on February 1, 1971. Informant was personally in the above apartment on one occasion in January 1971. Informant states that he personally saw David Cyott [sic] selling and storing narcotics and drugs at 964 Charles Allen Dr., N. E. Apt. 12 during the week of January 25, 197'1. Informant further states that he has observed several persons going to and from the above described location that had been observed by him as being known drug abusers.” After considering the application, Judge Little found probable cause existed and signed the warrant. Approximately 9 hours later at 1:16 a.m. on February 3, Detective Ellington and other officers executed the warrant and found marijuana, 42 capsules of LSD, 80 tablets of LSD, and hashish.

Defendant contends that the credibility of the informant whose information was offered as probable cause was not established in the affidavit by a satisfactory showing of underlying circumstances; that the informant’s conclusions were not satisfactorily shown to be credible; that the magistrate issued the warrant without making the required informed and deliberate determinations; and that the trial court considered information not brought to the magistrate.

The affidavit of Detective Ellington showed that the informant had been in defendant’s apartment on one occasion during the week of January 25, 1971; that the informant had personally observed the defendant selling narcotics and drugs; that the informant personally observed persons known to him as drug abusers going to defendant’s premises; and that within the past 90 days the informant had furnished information which resulted in the arrest of one person and the recovery of various illegal drugs.

The informant’s reliability was established by the affiant’s statement to the effect that he had information from a reliable and confidential informant who had given him reliable information in the recent past (90 days). See Marshall v. State, 113 Ga. App. 143, 144 (147 SE2d 666); Pass v. State, 227 Ga. 730 (6b) (182 SE2d 779); Thrall v. State, 122 Ga. App. 427, 428 (177 SE2d 192). The underlying circumstances by which the informant gained his information were established by his personal observations of the defendant’s selling and storing narcotics and the presence of known drug abusers at his apartment within a week of the execution of the search warrant. See Sams v. State, 121 Ga. App. 46 (172 SE2d 473); Steele v. State, 118 Ga. App. 433 (3c) (164 SE2d 255); Thrall v. State, supra, p. 428; Johnston v. State, 227 Ga. 387, 389 (181 SE2d 42); Burns v. State, 119 Ga. App. 678, 683 (168 SE2d 786).

The information in the affidavit on which the warrant was based was not stale. The phrase, "the week of January 25th,” was used to protect the informant’s identity. See Scull v. State, 122 Ga. App. 696, 700 (178 SE2d 720). The search warrant was taken out the day after receiving the information. Even if the informant’s observations were made on the earliest day possible, the 25th, the execution was still within the 10-day period after issuance allowed by Code Ann. § 27-306 (Ga. L. 1966, pp. 567, 569).

The trial court did not consider any evidence other than that considered by the issuing magistrate. The judge’s statement, that his practice is to talk to the officer a little bit and make a notation of that so he can refresh his memory, apparently referred to the judge’s own policies in issuing search warrants generally, and does not indicate that he privately interrogated the affiant as to matters not presented to the issuing magistrate. The magistrate read the affidavit before issuing the warrant, which was tendered in evidence without objection.

The affidavit met the standards set out in Spinelli v. United States, 393 U. S. 410 (89 SC 584, 21 LE2d 637), as quoted in Johnston v. State, 227 Ga. 387, supra, pp. 390, 391, to wit: "that the magistrate is obligated to render a judgment based upon a common-sense reading of the entire affidavit . . .” and "that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.”

The magistrate’s determination of probable cause must, accordingly, be given great deference by this reviewing court. Enumerated errors 1 and 2 are without merit.

As stated in Hughes v. State, 228 Ga. 593, 594 (187 SE2d 135) and cit., "generally there are four factors to be considered in determining whether a failure to proceed swiftly to trial assumes due process proportions: . . .”

(a) The length of delay.—Here, a period of only approximately 6 months elapsed between the date of the defendant’s indictment on May 7, 1971, and the date of his trial on November 17, 1971. "The mere passage of time is not enough, without more, to constitute a denial of due process.” Hughes v. State, supra, p. 595.

(b) The reason for delay.—Apparently the case was called for trial several times and continued on the State’s motion based on the absence of a material witness.

(c) The prejudice to appellant.—The appellant alleges prejudice in that the person who had been arrested with him and had been present when the case was initially called for trial, was serving a prison sentence for marijuana possession in another State when the case came on for trial. Although the defendant, by innuendo, attempted to interpose that the drugs found in his apartment must have belonged to the missing witness since they did not belong to him, he had previously testified that he knew that the drugs did not belong to the missing witness.

(d) Waiver by appellant.—There was no evidence that the defendant ever objected to the continuances or filed a demand for trial within the meaning of Code § 27-1901. See Spurlin v. State, 228 Ga. 2 (1) (183 SE2d 765). Furthermore, the defendant made no motion for continuance to secure the missing witness’s attendance, nor was there evidence presented that the witness was under subpoena. Compare Spurlin v. State, supra, Hn. 2. Nor did he attempt to call as witnesses his alleged two friends, one the alleged owner of the money found in his apartment on February 3, the other the lessor of his apartment at the time of the October, 1971 raid.

Enumerated error 3 is not meritorious.

Enumerated error 5 complains of the demonstration in the courtroom of a bag containing what was subsequently identifed as hashish and marijuana, which the defendant’s landlady testified she observed him carry from his apartment, on the day before the trial commenced, and leave in a vacant lot, and which she retrieved. Her testimony was in response to the defendant’s counsel’s question on cross examination, "So far as you have known, you have never seen anything immoral or illegal?” Although counsel initially objected to the relevancy of her answer as to what happened the day before the trial commenced, he thereupon pursued that line of questioning further; hence, he has no standing to complain about her responsive answer to his questions, which he himself elicited. Potts v. State, 86 Ga. App. 779 (3) (72 SE2d 553); Scott v. State, 57 Ga. App. 187 (1) (194 SE 844). Furthermore, the evidence was admissible to show the defendant’s identity, motive, scheme, and intent. Morris v. State, 228 Ga. 39, 45 (184 SE2d 82); McNeal v. State, 228 Ga. 633 (187 SE2d 271); Sloan v. State, 115 Ga. App. 852 (156 SE2d 177). Therefore, the denial of a mistrial on this ground was not error.

Enumerated error 4 is on the overruling of the defendant’s motion for mistrial based on his arrest for the offense referred to in Division 3, supra, in the halls of the courthouse, allegedly before a juror after the jury’s dispersal at the close of the evidence. The record shows that the defendant’s counsel related this information to the judge on the day it allegedly occurred, whereupon the judge said that he would hear from both counsel about it. On the following day, the defendant’s counsel made his motion, supported solely by his own statement that a woman, whom, he could state in his place, he could identify by appearance, only as one of the jurors in this case, was standing in front of the elevator when a police officer arrested the defendant, saying "You are under arrest for this latest violation.” Opposing counsel argued that there was a question as to whether the juror saw what transpired and, if so, whether she knew what was going on or heard it; that the juror would normally anticipate an arrest for marijuana possession after evidence thereof had been elicited during the trial by the defendant’s counsel; and that, therefore, no prejudice had been shown. The trial court, in. overruling the motion, admitted that the defendant should not have been arrested in the presence óf a juror, but stated that whatever harm may have occurred would be remedied by the instructions he gave the jury prior to their dispersal and by those he would (and subsequently did) give them.

"The trial judge in passing on motions for mistrial has a broad discretion, dependent on the circumstances of each case, which will not be disturbed unless manifestly abused ... [cits.]. Unless it is apparent that a mistrial is essential to preservation of the right of fair trial, the discretion of the trial judge will not be interfered with.” Atlantic C. L. R. Co. v. Smith, 107 Ga. App. 384 (6) (130 SE2d 355).

As the trial court expressly recognized, it would be harmful as an abstract, general rule if a juror actually witnessed, and understood the nature of, the defendant’s arrest for a crime. "There is nothing in which courts will go farther than in their protection of the jury box. Here every precaution is necessary for the proper and pure administration of justice. But in the jury box, if purity and integrity are not preserved, every principle of right and virtue dies. This court has been vigilant in protecting the jury from even the suspicion of injustice.” Salter v. Glenn, Duffield & Co., 42 Ga. 64, 80. Here, however, the juror had already heard sworn testimony, elicited by the defendant’s counsel, concerning the offense for which the defendant was. arrested (see Division 3 hereinabove) and could reasonably assume that the defendant would be arrested for this offense.

The defendant’s counsel, as movant, had the burden of proving not only that the arrest took place in the vicinity of the juror, but also the probability that the juror saw, heard and understood what was occurring and in the light of particular circumstances was prejudiced thereby. "When the knowledge which a person may have had is material to a judicial proceeding, this is a fact to be proved as any other fact, and a wide range of proof is admissible in this respect. It differs from physical objects and phenomena in that it is a state of mind, which, like belief or consciousness, cannot be seen, heard, or otherwise directly observed by other persons. It may be evidenced by the affirmative statement or admission of the possessor of it. If he is 'silent or says he did not have such knowledge, it may be evidenced in other ways, by matters which are collateral. Knowledge may be established by proof of facts and circumstances warranting an inference thereof by the jury; and, for such purpose, evidence of the situation of the parties and the attendant facts and circumstances is admissible.” 29 AmJur2d 405, Evidence, § 356.

Was the statement in his place by defendant’s counsel such evidence as would have proved that the juror was aware of the nature of the situation and was prejudiced thereby. In our opinion, it was not. The record is silent as to these two critical areas. As noted previously in Division 3, the members of the jury had heard testimony elicited by the defendant’s counsel on cross examination regarding the offense for which the defendant was arrested. Under the circumstances it was incumbent upon the defendant to affirmatively show not only that the event took place, but that the juror was aware of the situation and was prejudiced thereby. It is urged that the occurrence is prejudicial per se. For the reasons previously given defendant’s contentions are without merit in this case.

Let us assume arguendo that the defendant’s contentions are correct. After overruling the defendant’s motion for mistrial, the court instructed the jury that they must decide the case "upon evidence produced before you here in the courtroom; you must not be influenced by anything heard or seen . . . outside the courtroom.” Counsel for the defendant failed to renew his motion for mistrial. “A ground of enumerated error based on the denial of defendant’s motion for mistrial is without merit where the judge instructed the jury not to consider the testimony which brought on the motion and counsel thereafter failed to request further instructions or renew the motion for mistrial. [Cit.] The rule requiring renewal of a motion for mistrial following corrective instructions to the jury still obtains in the trial of criminal cases though it has been eliminated in civil cases by CPA §46 (b) (Ga. L. 1966, pp. 609, 655; Code Ann. § 81A-146 (b)).” Lane v. State, 118 Ga. App. 688 (3), supra.

The evidence amply authorized the verdict and, none of the enumerated errors being meritorious, the trial court did not err in entering judgment thereon.

Judgment affirmed.

Bell, C. J., Hall, P. J., Eberhardt, P. J., Pannell, Deen, Quillian and Clark, JJ., concur. Evans, J., dissents.