Wilson v. State , 181 Ga. App. 337 ( 1986 )

Beasley, Judge.

Wilson appeals from the convictions and sentences for violations of the Georgia Controlled Substances Act, OCGA § 16-13-30, and from the denial of his “Motion for Discharge and Acquittal.”

1. Appellant contends that his motion should have been granted because he was not tried within two terms after demand, under OCGA § 17-7-170 (b).

The two regular annual terms of criminal court in Walker County Superior Court begin the first Monday in May and the first Monday in November. Wilson was indicted at the November 1984 term and filed a demand for trial on December 3. The November regular term of criminal court was held between November 26 and December 7, and a special term or session (it is not clear from the record) of criminal court was held between February 11 and 22, 1985. Throughout these periods there was a sufficient number of qualified jurors impanelled to try cases.

The next regular term of court began on May 6, 1985. A two-week civil trial term was held from May 6 — 16 for which the published calendar contained only civil cases. Again, there was a sufficient number of jurors impanelled.

On May 24, defendant and several other criminal defendants filed a motion challenging the grand and traverse juries and asking that the indictments be dismissed. After hearing the first matter, the trial court on June 5 held that the jury pool was defective and ordered that the impending two-week criminal trial term be cancelled. The jurors. present for the May 6 — 16 civil trial term had been selected from the pool subsequently found defective.

Although no written order of cancellation was entered, the Board of Jury Commissioners was reconstituted following the court’s action on June 5, and a new jury pool was selected. The process took until August 12 to complete. No jurors were impanelled between May 23 and the November 1985 regular term.

Defendant was reindicted on November 4, the first day of the November regular term, and rearraigned. The former indictments were nolle prossed on December 12, the day defendant filed his motion. A two-week civil trial term and a two-week criminal trial term were held and concluded on December 6. Defendant was not tried although there was a sufficient number of qualified jurors impanelled to try cases. No order of adjournment was entered regarding the November regular term, and two weeks of trials were held in January during which time the defendant was tried. Although the parties discuss the defendant’s January 28th trial as being during this “special term,” it is clear that inasmuch as the regular November term was never adjourned, the trial actually was during an “adjourned term,” i.e., a special “session” of the November regular term and not a special “term.” Barkley v. State, 179 Ga. App. 795 (348 SE2d 122) (1986). McGinnis v. Ragsdale, 116 Ga. 245 (42 SE 492) (1902). See OCGA §§ 15-6-19 and 15-6-20.

“[T]he word ‘qualified,’ as used in the statute [OCGA § 17-7-170 (b)], relates to the general qualifications of the panels, . . .” that is, “if the array is not subject to challenge.” Campbell v. State, 6 Ga. App. 539, 541 (65 SE 307) (1909).

Thus, under the original indictment and demand, Wilson should have been tried by the May 1985 regular term of court, if there were impanelled and qualified jurors. However, trial was not possible in that term for two reasons. One, the jury pool was found to be defective, so these jurors were not qualified. Two, during this term Wilson challenged the grand and traverse juries, and this was not ruled on until after completion of the published trial calendar. By challenging the jurors, Wilson waived his right to trial during that term. State v. Waters, 170 Ga. App. 505, 508 (3) (317 SE2d 614) (1984). Consequently, taking into account the tolling of his demand for one term and the lack of qualified jurors in that interim term, Wilson was not entitled to discharge and acquittal for noncompliance with a demand for trial under OCGA § 17-7-170, as he was tried during a special session of the second regular term at which there were qualified jurors. See Barkley v. State, supra. See also Hubbard v. State, 176 Ga. App. 622 (337 SE2d 60) (1985); compare Dean v. State, 177 Ga. App. 678 (340 SE2d 647) (1986); Edwards v. State, 177 Ga. App. 557 (340 SE2d 229) (1986); State v. McNeil, 176 Ga. App. 323 (335 SE2d 728) (1985).

2. Appellant maintains it was error to deny a directed verdict of acquittal, which was based on the grounds that the state failed to rebut his defense of entrapment and failed to produce the confidential informant to rebut his testimony, as required by the circumstances.

At trial, Wilson stated that he did not deny the testimony of agents Parker and Harris. Parker testified that he never attempted to threaten or coerce Wilson to get him to sell drugs to him, that he did not bring up the subject of drugs first and give Wilson the idea of selling him the drugs, and that the confidential informant had been instructed about the perils of entrapment and not to get involved in such a situation of entrapment. Agent Harris testified that Wilson was not nervous or reluctant at all to carry out the drug transaction, that she did not initiate the transaction or put the idea in Wilson’s mind, and that she did not threaten or coerce him in any manner to make the sale. She further testified that there was no confidential informant involved in her purchase and that she was unaware of any promises made to any confidential informant in the case.

The agents’ testimony further established that Wilson had made three drug sales to the agents within a two-week period with the confidential informant being present at only the first sale; that Wilson had handy a substantial amount of cash to make change; that he was familiar with the strengths of the various drugs; and that he gave discounts for purchasing larger quantities of pills.

Three distinct elements constitute the defense of entrapment in Georgia, one of which is the lack of predisposition to commit the crime. It is the key element. Keaton v. State, 253 Ga. 70, 72 (316 SE2d 452) (1984). See also Pennyman v. State, 175 Ga. App. 405, 407 (1) (333 SE2d 659) (1985).

Here, the agents’ testimony indicated predisposition and thus the issue was properly a jury question, as in Houston v. State, 175 Ga. App. 881 (1) (334 SE2d 907) (1985). Moreover, as set out in that case, even the defendant’s unrebutted testimony of the alleged misconduct does not mandate a directed verdict of acquittal unless it, with all reasonable deductions and inferences, demands a finding of entrapment.

Considering the circumstances, it was not mandatory that the confidential informant testify. See Meade v. State, 165 Ga. App. 556, 557 (2) (301 SE2d 912) (1983).

Judgment affirmed.

Deen, P. J., McMurray, P. J., Birdsong, P. J., Carley and Pope, JJ., concur. Banke, C. J., Sognier and Ben-ham, JJ., dissent.