Ferrell v. State , 203 Ga. App. 479 ( 1992 )

Pope, Judge.

Defendant Charlie C. Ferrell was indicted on four counts of violations of the Georgia Controlled Substances Act. The State took action to sever the trial of Counts 1 and 2 from the trial of Counts 3 and 4. Defendant was convicted of the charges contained in Counts 1 and 2, and appeals.

1. First, defendant asserts the trial court erred by denying his motion to dismiss the indictment. Defendant argues the indictment is void because the only witnesses appearing on the grand jury witness list are law enforcement officers, thereby showing the indictment was based solely on hearsay testimony. All four charges contained in the indictment relate to the alleged sale of cocaine by the defendant to a confidential informant who was wired with a “body bug.” The officer who monitored the transmission of the conversations between the informant and the defendant was a witness at the grand jury proceeding. The officer was competent to testify as a witness to the transactions, and his testimony would not have been hearsay. Thus, pursuant to the rule set forth in Felker v. State, 252 Ga. 351 (2) (a) (314 SE2d 621) (1984), defendant’s motion to dismiss the indictment was properly denied because the record shows a competent witness was examined before the grand jury. Moreover, “the verdict of guilty beyond a reasonable doubt demonstrates a fortiori that there was probable cause to charge the defendant with the offenses for which he was convicted. Hence, any possible error has been rendered harmless.” (Punctuation and citation omitted.) Isaacs v. State, 259 Ga. 717, 720 (2) (b) (386 SE2d 316) (1989).

Defendant also argues the trial court erred by denying him the opportunity to call the prosecutor as a witness in the hearing on his motion to dismiss the indictment. We need not address this argument because it is clearly beyond the scope of defendant’s enumeration of error. See Chezern v. State, 199 Ga. App. 869 (2) (406 SE2d 522) (1991); Rigenstrup v. State, 197 Ga. App. 176 (2) (398 SE2d 25) (1990).

2. Counts 1 and 2 of the indictment in this case related to the alleged sale and the lesser included offense of possession of cocaine on a certain date. Counts 3 and 4 related to the alleged sale and possession of cocaine on another date. The State took action to sever the trial of Counts 1 and 2 from the trial of Counts 3 and 4. Typically, a motion to sever the trial of separate offenses in a multi-count charge is made by the defendant. The Georgia Supreme Court, however, has adopted certain ABA Standards on Joinder of Offenses which provide for severance of offenses upon application of either the prosecuting attorney or the defendant “ ‘(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or (ii) if during trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The court should consider whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.’ [Cit.]” Dingler v. State, 233 Ga. 462, 463-464 (211 SE2d 752) (1975).

Defendant argues the trial court erred in permitting the State to sever the offenses because no application to sever was made at or before the time of arraignment as all motions are required to be made, pursuant to Uniform Superior Court Rule 31.1. As noted above, however, an application to sever may be made during trial if the defendant consents and if it is deemed necessary to achieve a fair trial. Contrary to the conclusion of the dissenting judges, we do not conclude that the defendant waived his objection to severance when, at the conclusion of the hearing of defendant’s objection to severance, defendant’s attorney stated: “I don’t have a problem with it. I just wanted to put my objection to this in the record.” The statement must be considered in light of the immediately preceding comment by the judge, who referred to going forward with the trial of the first two counts of the indictment. In our opinion, the defendant was merely indicating a readiness to go forward with trial while still preserving objection to severance. Since defendant’s attorney clearly stated an objection to severance, it is illogical to assume the statement was meant to voice consent to the very ruling to which the attorney was stating an objection.

Moreover, the State presented no evidence or argument whatsoever that severance was necessary to promote a fair trial and the trial court made no such determination. Instead, the prosecuting attorney asserted the State has an absolute right to elect to sever counts of a multi-count indictment and could “try them one at a time all day long.” We do not agree that the State has such a right and, instead, conclude that in order to prevail on an application to sever, the State as well as the defendant must show that severance is necessary to promote a fair trial. Id.

We cannot say that severance was harmless to the defendant’s trial strategy. The State may have chosen to prosecute Counts 1 and 2 separately because the evidence was stronger on those counts. If defendant could have successfully defended the charges of Counts 3 and 4, it might also have weakened the State’s proof on the first two counts. Thus, the judgment is reversed.

Judgment reversed.

Sognier, C. J., Carley, P. J., Cooper and Johnson, JJ., concur. McMurray, P. J., Birdsong, P. J., Beasley and Andrews, JJ., concur in part and dissent in part.