Carver v. State , 175 Ga. App. 599 ( 1985 )

Banke, Chief Judge.

The appellant was indicted for two counts of sale of marijuana, one allegedly occurring on January 21, 1983, the other on January 28, 1983. Based on the appellant’s contention that a lengthy pre-indictment delay hampered his ability to develop an alibi defense and left him with no defense other than that of mistaken identity, the trial court ordered the state to disclose the identity of a confidential informant who had allegedly witnessed the January 21st incident. Rather than disclose the identity of the witness, the state dismissed this count of the indictment and proceeded to trial on the January 28th occurrence. At trial, however, the state offered testimony about the first incident as evidence of a similar crime. The appellant objected that such evidence impermissibly placed his character in issue and that it was error to admit the testimony without requiring disclosure of the informant’s identity. Held:

1. “[B]efore evidence of independent crimes is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. French v. State, 237 Ga. 620, 621 (229 SE2d 410) (1976). Once the identity of the accused as the perpetrator of the offense separate and distinct from the one for which he is on trial has been proven, testimony concerning the independent crime may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct. [Cits.]” Hamilton v. State, 239 Ga. 72, 75 (235 SE2d 515) (1977). “Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.” State v. Johnson, 246 Ga. 654, 655 (272 SE2d 321) (1980).

The defendant would have been on trial for the January 21st transaction had not the state dismissed that count of the indictment in response to the court’s ruling that the identity of the confidential informant must otherwise be revealed. That ruling, though clearly within the court’s discretion, was unnecessary in view of the uncontradicted evidence that the informant was a mere tipster. “Where a person merely takes an undercover agent to a location and identifies or introduces the agent to a seller of drugs, with all arrangements for the sale being wholly made by the agent, even if the sale is witnessed by the introducer, such introducer is nothing more than an informer and acts as a tipster only and not as a decoy so as to require a disclosure of name, address, or similar information. [Cits.] Where the disclosure of the informant’s identity would at best serve only to furnish possible impeachment of the agent’s testimony, disclosure is not appropriate considering the overriding rule of nondisclosure . . .” Gilmore v. State, 168 Ga. App. 76, 77 (308 SE2d 232) (1983). The evidence of the other offense was properly admitted as probative of identity and criminal intent, without requiring the revelation of the informant’s identity.

2. In establishing the chain of custody of the marijuana, a crime lab employee testified that he had received the evidence from the arresting officer through the U. S. mail, while the arresting officer testified that he had delivered the marijuana to a different employee at the crime lab. “The difference, if any, in the testimony of these two witnesses concerning the chain of custody presents an issue for jury resolution. The fact that the testimony of the state’s witnesses does not agree in all details goes to its weight but does not affect the admissibility of the evidence.” Smith v. State, 161 Ga. App. 240 (2) (288 SE2d 304) (1982).

3. Finally, based on the delay of nearly 18 months between the date of the offense and date of indictment, the appellant contends that it was error to deny his motion to dismiss for failure to provide him a speedy trial. The issue is controlled adversely to the appellant by the Supreme Court’s decision in State v. Madden, 242 Ga. 637 (250 SE2d 484) (1978), in that the appellant has “shown no ‘actual prejudice’ [but] has merely speculated that if he could have remembered the date, he might have been able to provide an alibi defense.” Id. at 638.

Judgment affirmed.

Been, P. J., McMurray, P. J., Birdsong, P. J., Carley and Pope, JJ., concur. Sognier, Benham, and Beasley, JJ., dissent.