*1 188
promissory note. See in the record. transcript hearing was included
No Therefore, the trial court based Ann. evidence on which Code 6-806. § is not independent contractor that Freeman was an finding its as a is not erroneous “The trial court’s order available for review. evidence was law, determine what of and since we cannot matter judge the trial issued hearing, and on what basis presented at City v. McAllister order, judgment.” must affirm the trial court’s we Smith, 565) Jonesboro, Davenport (1978); of 242 Ga. 95 (1981). 691) Therefore, finding disturbed, will independent was an contractor not be Freeman the Bank’s motion to intervene granting the trial court’s order upon prior assignment her Freeman’s traverse based sustaining the funds at issue is affirmed. J., Deen, J., P. concur.
Judgment affirmed. July Decided Rehearing July denied Gastin, Friday, Jack Wade appellant. Bart, Buchsbaum, K. III, L. Randall
J. Curtis Lewis Aaron appellee. v. THE STATE.
63835. PRESSEL et al. Judge. Chief
Quillian, Tallant, Appellants, Jenny appeal Robert Pressel and their Held: possession marijuana. conviction for of more than one ounce of sufficiency 1. The address the legal first four enumerated errors warrant, (a) Deputy Dudley Morgan County search Sheriff personally appeared Justice of the Peace Beckham and before P. testified to the facts which the warrant was based. J. synopsis testimony the affidavit attached to the entered by Dudley. Burge warrant and had it sworn to Sheriff also Dudley’s testimony. All three were present taking at the time of the on the motion There questioned called discrepancies what testified that he between told However, J. P. and what affidavit. on the issue of appeared on the defendants, probable cause search the residence rented he had a there was no doubt informed the J. P. that past provided confidential informant who had information reliable, proven and the informant had seen which had to be marijuana and a to be powdery white substance that he believed past cocaine the house within the stated that to 72 hours. he past days had the house under surveillance for the several and had contacted his informant on the afternoon before the warrant issued night and was on the lookout for a U-Haul truck which was to be surveillance, marijuana. loaded with While he had the house under *2 in stopped overheard a radio call that a truck and a “Blazer” had been County Morgan with loads of furniture. Because was also investigating burglaries several he went to that location and found Jenny stopped Robert Pressel and Tallant had been because Pressel stop stop failed to at a sign. Pressel said he did not have his driver’s — license with him it in him following being but was the “Blazer” by Jenny driven Tallant. stopped only The officers Tallant and not license, did she not have Pressel’s driver’s she did not have a license. Dudley recognized Jenny Officer given Tallant’s name as one of those — by him his confidential informant him given the other name was Steve Tallant. Pressel testified that he had the name Steve used Tallant on the lease when Jenny he and Tallant leased the house in Morgan County. Following Pressel’s arrest he was searched and the officer found a “little brown bottle that contained powder a white substance in it... It had spoon thing top a little it.” Such a device can be used to “snort” cocaine. reported Pressel had a U-Haul stolen, truck and the officers discovered Tallant had been arrested in Gainesville and Pressel was searched when he arrived and had — $16,000 taken from him it was later returned. Tallant had $3,700 in purse her when she was arrested. get decided to search warrant possible as soon as because he was afraid Pressel and Tallant would make destroy bond and drugs the informer had advised him present were in their “I they suspected house. felt like something was coming then, down and if I get didn’t what I had was going to lose everything.” and the sheriff met at the defendant’s house and Dudley advised the sheriff what his informant him had told procure it was They decided to a search warrant. house, went the J. picked P.’s him up, and took to his office downtown Madison.
Although there
discrepancies
testimony
between the
Dudley as to what he had testified to before the J. P. and what
appeared
affidavit,
on the
Dudley, Sheriff Burge, and the J. P. who
issued the warrant all testified as to the circumstances
and were
subject to a searching cross-examination. The trial court resolved the
issue
favor of denying the motion
trial court’s
“[T]he
questions
decision on
of fact and credibility
suppression
at a
accepted
must be
clearly
unless
Lego Twomey,
erroneous.
404 U. S.
(1972)
Woodruff v.
(213
. ..”
689);
SE2d
719).
(1) (272
findings
Those
Harris,
In of this one isolated incident the instant case there is evidence by police home officers at magistrate picked up in which the was at his transported in their car to approximately morning, 2 a. m. in the and Due to he heard evidence and issued the warrant. his office where the search, Deputy Sheriff impending nature of the because urgent the “if I suspected and Dudley they believed the defendants knew then, everything,” I to lose the get going didn’t what I had was delay the search apparently officers decided rather than time, they P. his home at that took transporting the J. back to “I would... the the search. The sheriff testified: with them to scene of Deputy Dudley speculation. say I would he moved around.” just there, he was but “Billy issuing magistrate] testified: Beckham [the the reasonable inference from evi- searching.” only wasn’t presence awaiting P.’s valid reason for the J. dence is there was a — anything evidence that this is transportation home. There is no he did not showing incident. There was an affirmative an isolated witness, search, counsel in he testified as a the and when participate the matter or establish attempt pursue defendant did not to for the infers, the extent of his participation, speculates, and now surmises and no may theorizes what his conduct have been. We have found the J. P. anything other than a neutral warrant, in magistrate caught up detached the issuance of this exigencies a rapidly prevent search situation to developing disposition an present by or destruction evidence said to be informer. are These enumerations error without merit. alleges failing Defendant the trial court erred “in to order camera, the informant cir- be interviewed in the cumstances surrounding alleged the informant are so as incredible to raise considerable doubt as to his existence.”
Throughout expended the trial counsel the defendant considerable Deputy Dudley time cross-examination Sheriff attempt an Dudley to establish the informer. non-existence the steadfastly claimed his repeatedly existence and defendant’s counsel referred to him as Dudley expressed fictional. concern the safety of his attempted identity. informant when counsel to learn his Honor, Counsel “Your if seriously stated: he’s worried about informant, I’ll make proposition this court. That the court an in make camera inspection Dudley of Mr. and his informer out of lawyers parties and the to the only you, case where Mr. Dudley informant and reporter present... the court are I Honor, will withdraw suppress the motion to if Your thorough after examination would me assure there an believed substantially informant who said [Dudley] what man has said he said.”
Later, trial, during counsel for State asked counsel for the defendant you “made an offer to ..” Judge. “he stated: wanted meet Judge with me and meet my informant and if Judge was convinced that had an informant, Mr. Horn said that the Judge was such an honest man that he would Suppress.” withdraw his Motion to Deputy Sheriff went to July Eatonton on 17 with Burge spoke Judge Sheriff Thompson, Judge hearings who held the on the motion *4 suppress, the Attorney, Judge Assistant District and told Thompson “if he felt necessary it was that he meet really wanted to my informant I would the have informant meet him in motel with a .” room.. Defendant’s counsel objected any Judge to answer Thompson gave and demanded Judge Thompson. the Counsel’s objection However, was sustained. it is that police clear the offered to Judge who on hearing held the Motion to Suppress, opportunity Thereafter, to meet with and examine the informant. Judge Thompson denied the Suppress. Motion to
“Whether or really question not an informer a exists is been the officers have court after evidence to be decided the trial State, v. Keith 238 Ga. thoroughly questioned and cross-examined.” 158, 159 State, v. (231 App. 157 Ga. McAllister 727); 157, 159 SE2d examine 669). failure to no error the trial court’s SE2d We find State, 158, Cf. McAllister v. 157 Ga. in camera. informant 159, supra. disclosure require court fail to error for the trial to
3. It was not in this shows the The case identity informant. of the of the Thornton v. required. tipster. Disclosure is not was a mere informer 309, 312 Royal, (2) (231 729); State Ga. 646). arbitrarily denying “in the trial court erred alleges 4. Defendant Laboratory Analysis of the Independent for an appellant’s Motion for In- presented a Motion suspected contraband.” Defendant September May 1981. On Laboratory Analysis on dependent filed, regularly scheduled citing 24,1981, the trial court’s order decoy/in- produce motion to hearing and denial of defendant’s demurrer. formant, Suppress, to and defendant’s the Motion to the court prior 1981 and trial September Trial was held on Suppress, Motion in “Motion to held a on defendant’s had been hearing, At several matters Limine.” the end of after to a discussed, regard noted that lab counsel for defendant “[i]n motion, I assistant Monday ago a week when discussed [the clear that the matter, first attorney] being district it time I denied, had to to be he mentioned Suppress going Motion it... I him I wanted to adhere to advanced the Lab Motion. told I it. I do not said considered had abandoned consider [He] Honor, and I costly expert Your it is to use an have abandoned it... Suppress, to still thought instance that I had a viable Motion spend lawyers think I do. It is for Defendants and for uneconomical that will be good of time on motions there is another motion lot The case, be.” trial responsive Suppress to the as the Motion would his motion for court ruled that the defendant abandoned analysis. We independent agree. refused intentionally
It is clear for defendant counsel cost, analysis until he independent his because assert motion his This was a matter of received a denial on motion presented morning or was not until strategy. tactics motion ruling trial court’s day of trial. We will not disturb the defendant abandoned motion. thoroughly remaining
5. We have examined the enumerations of error and found them to be without merit. J., J., Shulman, P. concurs
Judgment concurs. affirmed. specially.
193 July Rehearing 21, 22, denied 1982 Decided 1982 June Horn, Hazen, A1 Barry appellants. Martinez, A1 Assistant Attorney, Briley, H. District
Joseph Attorney, appellee. District concurring specially. Judge, affirming completely majority’s holding with the agree However, I an additional appellants.
conviction of the want make 3, opinion. In Division comment with to Division 3 of the regard identity of of the informant not majority holds that disclosure tipster.” appellants “the informer was a mere required because my opinion is “tipster.” that the informant was a mere It contend not tipster, trial court did that even the informer were not a mere identity the informant. failing require not err disclosure of the of State, 729) (1977) In Thornton v. 160, our States, U. Supreme upon Court Roviaro v. United S. relying 623, 1 639) (1956), “pure a if the informer is not SC LE2d held that tipster,” concept [requires] “the fundamental fairness process due of public of to law protecting interest the flow information right the accused to against enforcement officials be balanced of Thornton full and fair himself.” opportunity defend at 164. there was supra My review the record indicates sufficient evidence which the trial court could have found that require outweigh accused to disclosure did not “the public protecting interest to law the flow information Thus, regardless informer, enforcement officials.” status of the the trial court err in denying did not the motion for disclosure. SERVICE, INC. FINANCIAL TRIMBLE v. COLONIAL
Deen, Presiding Judge. (a) 14 of this 1982, Rule 27 pursuant Rule
On June error to file an enumeration court, ordered appellant was comply 14,1982. Appellant did p.m., June no later than 4:30 brief 14,1982. June order, continuance on request filed a for a has not 22,1982. appellant As on June request denied her This court ordered, is dismissed. appeal as an enumeration and brief filed JJ., Pope, concur. Sognier and Appeal dismissed. July Rehearing July 21, 1982. denied
Decided