Dеfendants in these two felony cases were jointly indicted, jointly tried (Code Ann. § 27-2101), and convicted for selling "drugs of abuse” (amphetamines) (Code Ann. § 79A-901 et seq.). Defendant Cauley raises the identical points of law made by defendant Woods, and these issues will be considered together in Division 1. Separate issues raised by Cauley will be dealt with in Division 2.
Issues common to both appeals.
Before trial defendants filed a challenge to the poll based upon prejudicial remarks 1 concerning rules of the Board of *281 Pardons and Paroles made by the court at the conclusion of a preceding trial. The challenge was directed to the twelve jurors who served on the preceding trial as well as all the other jurors who were present in the courtroom at the time the remarks were made. Defendants requested that those jurors bе excused and that additional jurors be drawn to bring the panel up to 48. The court sustained the challenge as to the twelve jurors who sat on the preceding trial, which left 53 jurors on the panel. Additionally, eight other jurors who were present in the courtroom and had overheard the remarks were excused by the court "for cause.” This left 45 jurors on the panel, and defendants enumerate as error the failure of the court to allow them a full panel of 48 qualified jurors from which to select a traverse jury.
The law appears to be clear that prior to July 1,1973, a defendant in a felony case was entitled to have 48 qualified jurors put upon him prior to the time he was required to begin striking. Code Ann. § 59-801;
Britten v. State,
There was no challenge to the array such as is provided for in Code § 59-803: "The accused may, in writing, challenge the array for any cause going to show that it was not fairly or properly impaneled, or ought not to be put upon him; the sufficiency of which challengе the court shall determine at once. If sustained, a *282 new panel shall be ordered; if not sustained, the selection of jurors shall proceed.”
"If the panel does not contain the requisite number of jurors when it is put upon the defendant, the law prescribes, in Penal Code § 972 (now Code § 59-803), his sole remedy, — he may challenge the array. If he does not challenge the array, no other method of complaint as to the deficiency of the panel is open to him.”
Ivey v. State,
The state contends that a full panel was put upon the defendant when it had 65 jurors in it, and that the excusing of 20 of them pursuant to challenges to the poll by the defendants did not result in putting on them a panel less than that required by Code Ann. § 59-801. The trial court agreed. Without deciding this issue it is sufficient to рoint out that there was no written challenge to the array, and thus that the mere oral objection raised by defendants before beginning the process of selection that the panel was deficient in number, raises no issue that we can decide. The oral objection or complaint was not open to them.
Porch v. State,
Defendants moved to suppress, inter alia, "all testimony” which might be forthcoming at the trial as a result of police eavesdropping, without an investigation warrant (Criminal Code § 26-3004), on certain telephone conversations to which defendant Cauley was a party. Insofar as the motiоn to suppress is directed at anticipated testimony, rather than "property” (Code Ann. § 27-313), the motion was properly overruled since a motion to suppress under Code Ann. § 27-313, which is the sole authority for such a motion, does not lie under these circumstances.
Baker v. State,
From the evidence adduced it appears that the police in Columbus had been receiving information about drugs being illegally sold by defendants from their place of business, the Benning Park Pharmacy, for some period of time. During the course of their investigation the police had gained the cooperation of one Walter Williams who had been involved in the drug traffic around the pharmacy, buying drugs illegally from defendants for his employer’s brother, and Williams consented for police officers to listen in on calls he made to Cauley at the pharmacy. As a result of overheard calls thus made by Williams on August 11 and 12, 1972, an illegal sale of amphetamines was arranged for and consummated for which defendants were convicted. No complaint is made here that the calls made on these dates and testified about at the trial by Williams without objection were illegally overheard. As pointed out above, the motion to suppress does not reach such testimony and since no objection was made to it when introduced, no complaint could now be made.
Reid v. State,
We find no reversible error. The convictions resulted entirely *284 from the illegal transaction arranged for by the telephone calls made on August 11 and 12. The call of August 3, while made during the course of the police investigation, was not material to this trial and no evidence as to it was introduced.
Defendants, however, rely upon Wong Sun v. United States,
Assuming illegality in the overhearing of the August 3 call, since appellants were not allowed to pursue their § 26-3006 inquiry with respect to this call, it is our view that other evidence, including the money used in the transaction and recovered from the pharmacy pursuant to a search warrant, was not derived from an exploitation of the August 3 call but instead by means sufficiently distinguishable to be purged of any taint attaching to that call. As Detective Frazier, who overheard the conversations, testified on cross examination by defendants: "Q. Now, getting back to the conversation on the 3rd of August, that is when you really — after you heard — overheard that conversation is really when you intensified your investigation in regard to the matter here before the bar? A. No, sir, not intensified, just continued. Q. Had you gained any meaningful information? A. Yes, sir.” From a consideration of the record as a whole, it is quite clear to us that the officer’s statement was correct and that the recovery of the marked bills from the pharmacy was not the rеsult of exploitation of the call on the 3rd, whoever may have made it and whatever its contents may have been. The entire illegal transaction was set up by the calls on the 11th and 12th, which Williams allowed the police officers to overhear as provided for in Criminal Code § 26-3006, and about which Williams testified at the trial without objection. Accordingly, we find no error in the refusal of the trial court to make inquiry into the legality or illegality of police activity with regard to the conversation of August 3 or in the overruling *285 of the motion to suppress.
Defendants contend that the trial court erred in denying their motion to suppress evidence (marked bills used in the illegal sale for which defendants were convicted) gathered as a result of a search of the Benning Park Pharmacy pursuant tо a search warrant. It is urged that some of the information which the police officer relayed to the magistrate in the affidavit as probable cause for the issuance of the warrant was obtained as a result of eavesdropping on the August 3 call which the court had refused to allow counsel to inquire into as complained of in 1(b) above. It is also urged that the officer made no showing of reliability of an informer. 5
The portion of the affidavit relevant to these complaints is as follows: "On 3 August 1972 the deponent had a police employee go to the Benning Park Pharmacy with unwitting informer and purchased two hundred (200) amphetamines, at a cost of $225 for said two hundred (200) tablets. Information from reliable source received subsequent to his transaction indicates that Buddy Cauley received a substantial portion of the $225.”
Assuming arguendo that this portion of the affidavit should be stricken, the following portions which remain are sufficient to establish probable cause for the issuance of the warrant: "On this date [August 11,1972], a transaction of illegal drugs was made in the Benning Park Pharmacy. Arrangements were made by telephone with a subject named Buddy. Buddy is known to the deponent as Buddy Cauley. The deponent believes that a portion of the monies spent for the drugs will remain on the premises. At 4:50 p.m. 11 August 1972, Officers Cooper and Durrah observed Walter Williams enter the Benning Park Pharmacy and give a roll of bills to a colored male who in turn went to the rear of the store, through a curtain doorway to a rear offiсe. Williams was told to return later and pick up the drugs.” Defendants seek to destroy this portion of the affidavit by urging for the first time on appeal that no transaction involving illegal drugs did in fact take place on August 11th at the pharmacy. While it is true that the drugs were delivered to Williams at defendant Woods’ home on the 12th, it is clear from the affidavit and the evidence that the transaction was well in progress on the 11th. This factual inaccuracy does not destroy the otherwise adequate showing of probable cause in the
*286
affidavit.
Summerville v. State,
Defendants contend that the court erred in failing to require the district attorney to disclоse any promise of leniency which had been offered by the state to Williams. The record is clear that no such promise was made, and no error appears.
Separate issues raised by Cauley.
Cauley complains of the failure of the trial court to instruct the jury that they should draw no inference against him because he made no statement, sworn or unsworn. A proper written request to so charge was submitted by Cauley but refused by the court, and error is enumerated thereon. At the completion of the charge Cauley objected and insisted that the jury should be recalled and the requested instruction given because codefendant Woods had made an unsworn statement and the court had charged on the right of a defendant to make an unsworn statement as provided fоr by Code Ann. § 38-415. 6
We find no harmful, reversible error. "Where the defendant has not made a statement in his own behalf, it is not proper for the court to give in charge section [38-415]. Unless the reference to the defendant’s right to make a statement occurs in such connection as to leave the jury to infer that his failure to make one is to be counted against him, the error stands upon a like footing to that which arises ordinarily when a court gives in the charge some principle of law, abstractly correct but not pertinent to the facts in the case. Whether such an error is reversible or not depends almost entirely upon the facts and circumstances of each particular case. In the present instance the proof of the defendant’s guilt is very satisfactory; no other errors are complained of; it is not likely that any material prejudice was done the defendant by the court’s inadvertence; therefore the error is deemed harmless.”
Carter v. State,
For purposes here we see no distinction between the situations where (1) a sole defendant makes no statement, the court nevertheless charges on unsworn statements but omits to instruct that failure to do so should have no influence or authorize no inference {Carter and Williams, supra), and (2) where a defendant makes no statement but his codefendant does, the court charges on unsworn statements but omits to give the "no inference” charge (the instant case). In the latter and instant situation, the court is required to charge on unsworn statements since one was made by the codefendant, while in the former it is error to give the charge since no statement was made. Even in the former situation, however, the giving of the unsworn statement charge and the omission of the "no inference” charge were held in the cited cases to be harmless error under the circumstances.
This is not a proposition unique to this type situation. " 'The evidence is overwhelming that the defendant is guilty, and where such is the case, even errors in the admission or rejection of testimony, or in the charge of the court, will not operate so as to require a new trial.’
Hagar v. State,
With these principles before us, we need only observe that the charge as to the unsworn statement actually given had reference only to Woods’ statement, since only Woods made a statement and the court also charged in general that the instructions he would give applied to each defendant separately as applicable; the charge did not occur in such a connection as to lead the jury to believe that they should infer that Cauley’s failure to make one should be counted against him; and the evidence, related in other portions of this opinion, is overwhelming as tо Cauley’s guilt and demanded his conviction.
That there may be harmless error — even harmless constitutional error — where it did not adversely affect substantial rights of the defendant, as we find the case to be here, is well settled. Fahy v. Connecticut,
" 'A defendant is entitled to a fair trial but not a perfect one, for there are no perfect trials.’ Lutwak v. United States,
Accordingly, we find no harmful, reversible error here.
Cauley complains that the trial judge should have disqualified himself in regard to the challenge to the poll of the jurors who overheard his alleged prejudicial remarks. It is urged that the judge should not have been allowed to pass upon the legality of his own comments. It does not appear that the judge was
*289
disqualified under the standards of Code Ann. § 24-102. However, even if he were, since the court held that his remarks were in fact prejudicial and excused the jurors who overheard them, no reversible error appears. This ruling was favorable to the defendant. Cf.
Bivens v. Todd,
Prior to trial Cauley made a motion for severance, praying that he be granted a separate trial, alleging that he had a conflicting and different defense to that of codefendant Woods, that Woods was not going to make a sworn statement and that Cauley would be denied his Sixth Amendment right to confrontation and cross examination. At the hearing on the motion, it developed that Cauley’s counsel had originally represented both defendants; that he learned that Woods had given a confession to police officers inculpating Cauley; that because of this conflict he had to withdraw as Woods’ counsel, other counsel being obtained for Woods; and that Woods’ counsel intended that Woods would make an unsworn statement and not be subject to cross examination under the unsworn statement law. It was thus Cauley’s contention that if the motion for severance was not granted, and the confession was introduced into evidence, he would be denied the right of confrontation and cross examination guaranteed by the Sixth Amendment to the United States Constitution. The motion for severance was denied.
At the trial the confession, which inculpated Cauley, was admitted into evidence over Cauley’s continuing Sixth Amendment objection. When the state rested, the objection was again made, to which the trial court responded by instructing the jury not to consider Woods’ confession as bearing upon Cauley’s guilt. Woods then took the stand and made the following unsworn statement: "I am Walter K. Woods. I am a former school teacher. I had to resign from teaching school because I was very ill. I resigned in February. At the time I was working in the drug store, I was under psychiatric treatment. I was carried down to Police Headquarters and I was threatened by several officers. I asked if I could go to the bathroom — they told me no. I asked to be taken to the hospital for medication — they denied that. One of the detectives wrote something down and asked me to sign it. I was under pressure, and I signed the statement, not knowing the contents of the statement. I was there from 1:30 until 5:30 being pressured. I did not receive any pills from Mr. Cauley, nor did I have any money. Conсerning Mr. Williams came in the drug store and purchased some beer with a twenty-dollar bill, and he asked *290 me to give him change for a hundred-dollar bill. That is the way that the money was put into the drug store. And afterwards, I was threatened several times, and I want to make it crystal clear that I did not sell any pills, nor did Mr. Cauley sell the pills. I have no knowledge about the pills; I do know about the money — the hundred dollars and the twenty-dollar bill. I was a Sunday School teacher and Recording Steward of my church and a member of the Jaycees, but because of my illness, I had to give up all of these things. Somebody said I worked at Benning Park Pharmacy. At the time I resigned from school, I was indebted to Benning Park Pharmacy, and I was taking psychiatric therapy. To keep from staying at home, much of my timе was spent there at the Benning Park Pharmacy. I am not guilty of selling drugs of abuse, and Mr. Cauley is not guilty of such, and that’s my statement.” Cauley requested that he be permitted to cross examine Woods with regard to the confession, but the court refused to permit it on the ground that he had previously instructed the jury it could not be used against Cauley and that Woods, in his unsworn statement, exculpated rather than inculpated Cauley. Cauley enumerates as error the denial of the motion for severance, and the denial of his right to confront and cross examine Woods with respect to the confession.
In Bruton v. United States,
However, in the subsequent case of Nelson v. O’Neil,
Thus it has been held in a number of cases that although the Bruton rule was violated by the admission into evidence at a joint trial of a statement or confession made by a nontestifying codefendant implicating one or more of the other codefendants, the errоr was harmless where other evidence amply supported the other codefendants’ convictions. See, e. g., Wapnick v. United States, 406 F2d 741 (CA 2); Stone v. United States, 435 F2d 1402 (CA 2) (admission of statements of nontestifying codefendants was "thin icing on a very substantial cake”); James v. United States, 416 F2d 467 (CA 5); Simpson v. Wainwright, 439 F2d 948 (CA 5); Ward v. Henderson, 317 FSupp. 344 (D. C. La.); United States v. Clayton, 418 F2d 1274 (CA 6); United States v. Brown, 452 F2d 868 (CA 6); Wooten v. United States, 307 FSupp. 80 (D. C. Tenn.) (aff'd per curiam, 420 F2d 376 (CA 6)); Alley v. United States, 426 F2d 877 (CA 8) (no merit to appellant’s claim that he should have been granted a severance); Erving v. Sigler, 327 FSupp. 778 (D. C. Neb.); Clark v. United States, 412 F2d 491 (CA 9); Neal v. United States, 415 F2d 599 (CA 9); United States v. Davis, 418 F2d 59 (CA 9) (no error in failing to grant motion for separate trial);
Robinson v. State,
*292
In the instant case, had Woods’ statement at trial been under oath, no Bruton error would appear under the holding in Nelson v. O’Neil,
In United Statеs v. Morales, (5th Cir.) 477 F2d 1309, 1314, the issue was the denial of defendant’s Sixth Amendment right of confrontation by the admission of a
confession
made by a nontestifying codefendant in which the defendant, Morales, was expressly charged with complicity in a conspiracy to sell a package of nonnarcotic substance (flour) to government agents under representation that it was heroin, thereby defrauding the government, and it was held error, as against Morales, to admit the confession, applying the rule of Bruton. If the confessing codefendant had taken the stand and by testimony denied any complicity of Morales, as was done in Nelson v. O’Neil,
The question becomes, therefore, whether the error was harmful *293 requiring reversal, or harmless within the holdings in Harrington v. California, Schneble v. Florida, and the other cases cited supra. In summary, the evidence shows without dispute that on August 11, 1972, Walter Williams, cooperating with the police, made a telephone call to Cauley, the manager of the pharmacy, and placed an order for the illegal purchase of amphetamines. Detective Frazier then gave Williams $205 in marked bills with which to complete the purchase. Williams went into the pharmacy and gave the money to defendant Woods, who worked there, and told him that he wanted the pills, but was told by Woods that he would have to come back and get them. Woods took the money to the back part of the storе where the cash register, office, etc. were located. Cauley was standing in the office door at this time. Later in the day Williams again called Cauley at the pharmacy and asked him if he had "the package,” but was told by Cauley that "no, he wasn’t there yet.” The next morning Williams again called Cauley at the pharmacy and asked him if "the package got back” but was told by Cauley that Woods had not gotten back but was in bed at home with a hangover. Williams then went to Woods’ home around noon to pick up the drugs, but was told that Woods had gone to the pharmacy. Williams then went to the pharmacy, saw Cauley and Woods, and told Woods that he wanted "the package.” Woods stated that they would have to go to his house and get it. Woods and Williams proceeded in Williams’ car to Woods’ house, whereupon Woods went inside, got "the package” and gave it to Williams. Williams returned Woods to the pharmacy and gave "the package,” which Williams testified contained yellow pills wrapped in cellophane, to Detective Frazier. The pills were subsequently analyzed and were found to contain both amphetamines and barbiturates. In the meantime Detective Frazier had obtained a search warrant for the pharmacy, and after receiving the pills from Williams the pharmacy was searched. The marked bills were recovered, a $100 bill being found in Cauley’s desk drawer and a $20 bill in Cauley’s billfold. These were the bills used in the transaction, identified by their serial numbers, the officers having made а record thereof prior to the transaction, and additionally by marks on them which they had made with a chemical pencil.
In view of this evidence, we can see no reasonable possibility that Cauley would have been acquitted had the alleged inculpating confession not been admitted, for his guilt was overwhelmingly established. We are hence compelled by the force and persuasiveness of the state’s case to hold any Bruton error harmless beyond a resonable doubt.
*294
Cauley complains that the court erred in denying his motion for mistrial because of an offer of "immunity” to the witness Williams by the court, relying upon Giglio v. United States,
First, we note that there was no such agreement here, nor is it contended that there was.
Secondly, the matter was invoked by counsel for the defendant as soon as the witness Williams was placed upon the stand by inquiring as to whether the court intended to allow the District Attorney to interrogate the witness while a grand jury investigation was pending against him, and particularly since the witness had not been advised of his Fifth Amendment rights, and was without counsel in the courtroom. At this point the judge ruled that in this situation the defendant could not be prosecuted later on account of any testimony which hе might deliver upon the present trial.
The objection then raised by counsel for appellants was "the court has, on its own motion, given this witness immunity, and our objection is, number one, that there is no statutory authority in the State of Georgia to give any witness immunity, and the court, on its own motion doing it at this time would be, we feel, depriving Mr. Cauley [of] an impartial judge on the bench, because it would appear that by giving something to this witness which the law does not allow the court to do, that the court is assuming partially the function of the prosecutor, and we ask for a mistrial.”
Assuming that the action and ruling of the judge amounted to the grant of "immunity” to the witness, we find no merit in the objections raised. We find no statutory provision touching the grant of immunity, but as was asserted in
Howard v. State,
Nor do we see how the grant or extension by the court of the "immunity” to a witness in these circumstances results in a failure to have an impartial judge presiding over the trial. That the judge may have made a ruling or taken an action which is calculated to protect thе rights of one who testifies does not have the effect of placing the judge in a partisan position. It is the duty of the judge to protect witnesses who appear in the trial; the concept of fair trial demands it.
Gore v. State,
Since the motion for mistrial was based upon these two grounds only, it was wholly without merit and it was proper to overrule it.
Moreover, since it was counsel for Cauley who raised the issue as to whether the witness should testify without having been informed of his Fifth Amendment rights and thus invoked the ruling, it would appear that he is in no position to complain of the ruling made.
Bennett v. Bennett,
Error is enumerated on failure of the court to require the district attorney to disclose any promise of leniency which had been offered by the state to the witness Williams. This point was not raised in the trial court and raises nothing for decision here.
Morris v. State,
Thirdly, it appears that counsel for Cauley brought the matter out on cross examination of the witness before the jury: "Q. All right, when you testified this morning, and you were sitting in that chair, did you hear' it said right here in court that you could not get in trouble for anything you said today? The Court: That wasn’t said, Mr. Martin. I said that — the testimony was, I’m sure he heard it, was that any incriminating statement he made today would not be used in any subsequent prosecution — not that he couldn’t get in trouble. Q. I’ll rephrase it. Did you hear it said today that whatever you said out of your own mouth today would not be used against you later in another prosecution? A. Yes, I heard that — what’s being stated here. Q. And you remember that, as you are testifying now, that that was said this morning, don’t you? A. That was said this morning.”
Assuming that the point now raised had been raised at the trial level — that the court did not require the district attorney to *296 apprise the jury of the matter — we can see no harm resulting, for the ruling was stated in the presence of the jury by the judge, the witness and, as well, by defense counsel. There can be no doubt that the jury had the information and could evaluate the witness’ testimony in the light of it.
Fourthly, it appears that the witness was admittedly an undercover aide of the police in making the purchase of the drugs. He was not an accomplice who could be prosecuted for his actions with regard to this transaction, whether he had been informed of his Fifth Amendment rights or not. He was free to testify truthfully as to the facts without the promise of any immunity or of leniency, and such a promise, if made, would in no way change his position.
We agree that if there had been an understanding or agreement between the prosecuting attorney and the witness that in return for his testimony here immunity or leniency would be extended to him with respect to charges pending against him, that is a matter which would go to his credibility, about which the jury is entitled to know, and that in that situation a duty rests upon the state to inform the jury of the arrangement.
Allen v. State,
Finally, Cauley contends that there was insufficient evidence to convict him of a felony because there was no corroboration of accomplice Williams’ testimony. However, Williams was not an accomplice in the crime but was acting voluntarily in cooperation with the police. Even though there was, in faсt, corroboration of Williams’ testimony, it was not required.
Marshall v. State,
Judgments affirmed.
Notes
It was alleged in the challenge to the poll that after the jury had returned its verdict in the prior case the judge, noting the punishment which the jury had fixed, remarked that under its rules the Pardon and Parole Board would probably release the defendant within about a month. The remark had been made in the courtroom so that the jury and any others present could hear
*281
it. Cf.
McKuhen v. State,
Ga. L. 1973, p. 286, effective July 1, 1973, struck former Code § 59-801 in its entirety and enacted a new § 59-801 providing for the impaneling of 42 jurors in felony cases. The instant case was tried in February, 1973.
See Code Ann. §§ 79A-9915, 59-805, 27-2101.
A constitutional attack on Criminal Code § 26-3006 was made below but has been abandoned. Appellants treat this section as constituting the standard by which to measure the legality or illegаlity of the police eavesdropping, and for purposes of this appeal we accept their standard.
The motion to suppress did not include this ground.
Effective July 1, 1973, the unsworn statement law was abolished. Ga. L. 1973, p. 292.
But see
Robinson v. State,