Roberts v. StateRoberts v. State
- Reporters:
- , , ,
- Before:
- Blackburn
Lead Opinion
Appellant was convicted of violating the Georgia Controlled Substances Act and appeals from the judgment entered on the conviction and the denial of his motion for a new trial.
Evidence adduced at trial shows that D. A. Liber, an undercover investigator for the Atlanta Police Department, met Shellie Ramey, appellant’s co-defendant, at a bar and told her he wanted to buy some “Dilaudid.” Ramey told Liber she could take him to find some. She drove with him to a street corner where appellant was standing. Ramey said “There’s Bobby,” and told Liber to stop the car so she could see if Bobby had any Dilaudid. After Liber parked nearby, Ramey left Liber’s car, talked with appellant, and returned, saying that Bobby had one pill left for $50. Liber gave her the $50 and watched her walk back to appellant and give him the money in return for a small package. Ramey then returned to Liber’s car and gave him a small pill which was . later identified as Hydromorphone or “Dilaudid,” a Schedule II controlled substance. Neither Liber nor E. G. Brown, another undercover investigator who witnessed the transaction through field glasses from another vehicle, could testify directly *65that the small package Ramey received from appellant was Dilaudid or that it was the same item she subsequently gave to Liber in his car.
1. In two enumerations of error appellant argues that the trial court erred in denying his motion for a continuance until the following term.
(a) Appellant first asserts that “the principles of justice” required a continuance because defense counsel was not prepared for trial. See
(b) Appellant also argues that a continuance until the following term should have been granted pursuant to
2. In his third enumeration of error, appellant contends that the trial court erred in allowing the State to impugn appellant’s character by repeatedly asking him on cross-examination whether he was familiar with one of the undercover investigators. See
3. Appellant argues that the trial court erred in allowing hearsay evidence offered by the State regarding what the missing co-defendant said to Liber during the course of the crime but disallowing hearsay testimony offered in his behalf regarding what the missing co-defendant subsequently told others about appellant’s role in the crime. Liber’s testimony about what co-defendant Ramey said to him during the course of the crime was properly admitted as part of the res gestae. See
4. In his fifth enumeration of error, appellant contends that the trial court improperly limited his cross-examination of Liber by not admitting into evidence a police officer’s manual which allegedly would have contradicted Liber’s testimony that it is not standard procedure to have an incident report signed by a reviewing officer imme*67diately after the incident occurs. In the instant case, Liber’s incident report was not signed by a reviewing officer until approximately two months after the incident, and appellant asserts that this delay renders Liber’s identification of appellant suspect. Contrary to appellant’s assertion, whether Liber followed, or was even aware of, reporting procedures set forth in the police officer’s manual was not relevant to the reliability of Liber’s identification of appellant. Thus, the manual was wholly immaterial matter, and the trial court did not err in refusing to admit it for impeachment purposes. See Brown v. State, 260 Ga. 153 (4) (391 SE2d 108) (1990).
5. In his sixth enumeration of error appellant argues that the trial court erred in refusing to give his requested charge on the law of circumstantial evidence. However, this enumeration was not included in appellant’s original enumerations of error and was added by amendment after the deadline for filing enumerations of error had passed. Such an amendment is not permitted. See Burke v. State, 153 Ga. App. 769 (7) (266 SE2d 549) (1980). Therefore, this argument will not be considered. See Bowen v. State, 191 Ga. App. 760 (382 SE2d 694) (1989).
Judgment affirmed.
McMurray, P. J., concurs specially. Blackburn, J., concurs in judgment only.
Concurrence Opinion
concurring specially.
I agree with all that is contained in the majority opinion and write only to note that even if the merits of defendant’s argument could have been reached in Division 5, there was no error in the trial court’s refusal to give defendant’s requested charge on the law of circumstantial evidence. While the decision in Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) holds that where the State depends at least in part on circumstantial evidence a charge on the law of circumstantial evidence must be given on request, an analysis of whether there has been compliance with the Robinson decision must involve consideration of whether a defendant’s requested charge is correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case, since otherwise a refusal to give the requested charge will not be cause for a new trial. Hollis v. State, 201 Ga. App. 224, 225 (2) (411 SE2d 48); Peebles v. State, 196 Ga. App. 176, 179 (3) (395 SE2d 640). The requirements of Robinson are satisfied when the jury is given a charge employing language substantially similar to that in