Aрpellants Terry Simmons and Sharon Renee Hill were jointly tried and convicted of conspiracy to commit murder. These appeals from their convictions raise similar issues and thus are consolidated for the purpose of review.
1. Both appellants first cite as error the trial court’s denial of their respective challenges to the array of the grand and petit juries in the Walker County Superior Court on the ground that the Walker County Board of Jury Commissioners is illegally and unlawfully constituted in that one of its members, Ralph Phillips, is a Walker County Deputy Sheriff and also a bailiff for the grand and petit juries. Although the foregoing argument is raised on appeal, the record discloses that the challenges before the trial court related solely to whether the jury selection procеdure had systematically excluded from service citizens between the ages of 18 and 24. It appears that the basis of these motions was the recent Eleventh Circuit Court of Appeals decision in
Willis v. Zant,
720 F2d 1212 (11th Cir. 1983). The record affirmatively shows that during the pretrial hearing on this matter, evidence was presented which disclosed Mr. Phillips’ status as a jury commissioner and also as a deputy sheriff and bailiff. Notwithstanding this evidence, no challenge to the array of the grand and petit juries was asserted on this ground in the court below. “Where the objection urged below is not argued here it must be treated as abandoned and where an entirely different objection is presented in this court, we do not consider it since we are limited to those grounds urged in the trial court. [Cits.]”
Carney v. State,
2. The issue raised by appellants’ second enumerations of error, as well as appellant Simmons’ third enumeration, is controlled adversely to them by the holding in
Favors v. State,
3. Simmons’ fourth and Hills’ seventh enumerations challenge the trial court’s denial of their general and specific demurrers to their indictments. Both indictments alleged that on July 20, 1983 the named appellant did сonspire with the other appellant “to commit the offense of murder upon the person of Kenneth Hill and in furtherance of said conspiracy, did meet with and make arrangements concerning the said corrupt agreement with Georgia Bureau of Investigation Special Agent Richard Hayes, acting under the name of Richard Hill, and did furnish the said [GBI] Special Agent . . . with a check to covеr his expenses and instructions on the manner and method under which the said Kenneth Hill was to be killed and murdered.” Both appellants argue that their respective indictments were too vague and indefinite to allow them to prepare adequate defenses.
“Every indictment of the grand jury which states the offense in the terms and language of this Code or so plainly that the nature of the offense сharged may easily be understood by the jury shall be deemed sufficiently technical and correct.” OCGA § 17-7-54 (a). “A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.” OCGA § 16-4-8. “Thе indictment[s] in [these cases] clearly [charge] appellants with unlawfully conspiring one with the other to commit the offense of murder upon a named person. Furthermore, [they set] forth the date of the charged offense and [enumerate] the overt acts done to effect the object of the alleged conspiracy. The indictment[s] [are] not vague and ambiguous. [They apprise] appellants of the charges against them with sufficient clarity to permit them to adequately prepare their defense[s] and [are] sufficiently technical and correct — so plain that the nature of the offense charged may easily be understood by the jury. [Cit.] ”
Causey v. State,
The fact that the subject indictments could have set forth additional specifics regarding the conspiracy — e.g., the lоcale of the alleged meeting with the GBI agent; the nature of the “arrangements” made to effectuate the proposed murder; the amount, maker and payee of the “expense check”; and the details of the “instructions” given to the purported assassin — did not render them insufficient
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under OCGA § 17-7-54 (a). See
State v. Black,
4. Appellants’ fifth enumerations cite as error the trial court’s refusal to require the State to reveal certain material information pursuant to motions made in accordance with
Brady v. Maryland,
The thrust of appellants’ arguments in support of these enumerations of error is that certain information which they view as exculpatory and material was not disclosed to them prior to trial. Assuming arguendo that the information cited by appellants is indeed exculpatory and material, it is clear that
all
this information was disclosed at trial. The holding in
Brady
provides “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87. This rule applies to “the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.”
United States v. Agurs,
5. Simmons’ sixth enumeration cites as error the trial court’s denial of his motion to produce pursuant to OCGA § 24-10-26. Simmons’ motion requested the production of the original cassette recording of the July 20th meeting between himself, appellant Hill and Special Agent Hayes; the complete transcript of the resulting conversation; and the complete arrest аnd conviction record of one Brenda Parker, alleged by Simmons to be an unindicted co-conspirator. It is clear from the record on appeal that the first two items were in fact produced at trial. It is equally clear from the record that what the trial court denied in regard to this motion was Simmons’ attempt to review the requested material “at a reasonable time befоre trial.” The trial court’s ruling in this regard was not erroneous. See
Sims v. State,
6. We have carefully reviewed appellants’ allegations of error in regard to the trial court’s denial of their motions for severance. We find no abuse of discretion. See, e.g.,
Cain v. State,
7. In his eighth enumeration of error Simmons argues that the trial court erred in overruling his motion in limine relating to acts alleged to have occurred prior to July 12, 1983, the date Brenda Parker was alleged to have notified law enforcement officials of the subject conspiracy to murder. The evidence apparently objected to related to previous attempts by appellants to murder Kenneth Hill. Simmons’ objection at trial challenged this evidence on the grounds that it was entirely prejudicial to him and was irrelevant to the conspiracy charged in the indictment.
It is obvious that the evidence here objected to disclosed acts done in pursuance or in furtherance of the conspiracy to kill Kenneth Hill and thus was admissible. Accord
Llewellyn v. State,
8. Appellants both assign error to the trial court’s refusal to conduct a hearing in order to determine the admissibility of certain tape recordings which contained out-of-court statements by the appellant co-conspirators. Aрpellants cite United States v. James, 590 F2d 575 (5th Cir. 1979), for the proposition that such a hearing is necessary as a preliminary matter in order to show substantial independent evidence of conspiracy, at least enough to take the question to the jury. Such a showing, they argue, is necessary before out-of-court statements by co-conspirators shall be admissible.
The holding in
James
is based upon the Fifth Circuit’s interpretation of the Federal Rules of Evidence. The rule in Georgia, however, does not require such a hearing. “ ‘While it may generally be the better practice to require a prima facie case of conspiracy first to be made, before admitting evidence of the acts and declarations of one of the alleged conspirators, there is no inflexible rule to that effect. The trial cоurt has some discretion as to the order in which testimony may be introduced; and if a prima facie case of conspiracy is shown from the whole evidence, the admitting of such testimony is not error.’ [Cits.]”
Yeargin v. State,
9. Contrary to the assertions in Simmons’ tenth and Hill’s eighth enumerations of error, the recоrd discloses that the State laid a proper foundation for the admissibility of certain taped conversations between appellants and Special Agent Hayes. See
Elliott v. State,
10. Simmons’ eleventh and Hill’s ninth enumerations cite as error the trial court’s denial of their motions for continuance in order to review the transcripts made of the tape recordings which were played at trial. See Division 9, supra. Such motions address themselves to the sound discretion of the trial court.
Hufstetler v. State,
11. In his twelth enumeration of error Simmons argues that the trial court erred in denying his motion for mistrial because of certain allegedly prejudicial remarks contained in the taped conversations between appellants and Special Agent Hayes. “There was evidence tending to show a conspiracy; and this evidence . . . [of] declarations of an alleged conspirator pending the conspiracy . . . was part of the res gestae, and was admissible.”
West v. State,
12. We find no merit in appellants’ contention that it was improper to allow the prosecutor to remark in closing argument on their failure to call Brenda Parker as a witness.
Lowry v. State,
13. Appellant Hill’s third and fourth enumerations assign error to a ruling by the trial court which precluded defense counsel on cross-examination of a State’s witness from eliciting from the witness evidence of Brenda Parker’s activities as an alleged undercover agent or informant in matters subsequent to the case at bar. Parker was not called to testify by any party; nevertheless, Hill argues that this information was vital and material to the establishment of her entrapment defense in that the benefits Parker received would be relevant as to her motives in cooperating with law enforcement officials. We disagree. The record discloses that Parker in fact received certain financial remuneration and other assistance from law enforcement authorities as the result of her assistance in this case. This information was
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arguably relevant to the case at bar. See generally
Hines v. State,
14. At the time certain tape rеcordings were played at trial, transcripts thereof were distributed to the jury. The trial court sua sponte instructed the jury at this time that the transcripts were being provided so that they “might follow along with [them] to determine whether or not that is in fact what was said on the tape. It’s up to you ultimately to determine what was said, so, this is a transcript of what is purportedly on the tapes . . .You will not keep thesе transcripts. They will be taken up from you at the conclusion of the playing of these tapes.” After the tape recordings concluded, the transcripts were collected from the jury. The transcripts were not tendered as evidence. Under these circumstances, we find no merit in Simmons’ fourteenth enumeration which cites as error the trial court’s refusal to give in its final charge to the jury substаntially the same instruction it had given before the tape recordings were played.
15. In Simmons’ fifteenth enumeration of error, he contends that the trial court erred in refusing to give his request to charge based on
Steve M. Solomon, Jr., Inc. v. Edgar,
Judgments affirmed.