Defendant was indicted, tried and convicted in two counts for the offenses of violation of the Georgia Controlled Substances Act, Count 1 being for the possession of marijuana in a greater amount than one ounce and Count 2 being for possession of methaqualone. He was sentenced as to Count 1 to serve a term of 10 years on probаtion and ordered to pay a fine of $1,000 at a rate to be determined by the probation officer. This probated sentence was concurrent with the sentence imposed as to Count 2 which was six years in confinement. Defendant appeals. Held:
1. During the conduct of the search of certain premises described in a search warrant and after a quantity of drugs were found and two persons present at the scene were arrested, the telephoné rang. An investigator who testified at the trial answered the phоne testifying that a person named Joe asked for “Ronald.” Whereupoft, the officer told him that he was Ronald (the defendant, although one of the arrested persons present was also named Ronald, who was the father of defendant). Whereupon the person telephoning “Ronald” advised him “he needed 300 Rubies and a quarter-of-a-pound of pot.” Prior to the testimony counsel for defendant objected to the allowance of this testimony, contending the search warrant was not an investigative warrant rеquired under Code Ann. § 26-3001 (Ga. L. 1968, pp. 1249,1327; 1976, pp. 1100); the officer had no permission to intercept the telephone call, that is, pick up the phone and answer it which was in violation of the right to privacy; and information furnished to him by the unknown and unidentified caller being pure hearsay was not a part of the res gestae and does not come within the course of conduct exception which had already been established at that time.. The objection was overruled, and the officers allowed to testify as shown abovе. Defense counsel moved for a mistrial and the further conversation was allowed whereby the caller stated he would be by in about 45 minutes to pick up the drugs (“Rubies” and the “pоt”).
The first two enumerations of error complain of the allowance of this testimony in evidence and the denial of the motion for mistrial. The defendant was not present at the time of the search, but under Code § 38-302 the officers were in the course of a legal investigation, and information, that is, the conversation the officer received оver the telephone contained facts to explain conduct and ascertain motives that “Ronald” was apparently in the drug business. The defendant (“Ronald”) was evеntually arrested and charged with the drugs found during the search. This evidence was substantial
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evidence which could be used against the defendant with reference to the charge of possession of drugs. See
Leutner v. State,
2. The trial court did not err in allowing certain of the state’s exhibits in evidence and correctly held that a jury question was made out by this evidence as to the possession of the contraband drugs, the same being the brown paper bag in which marijuana and pills were found, the plastic bags that contained thе marijuana and the plastic bags containing white tablets inscribed “LEMMON 714.” There was sufficient other evidence to connect up the location of this contraband in a room of the mobile home to authorize a finding by the jury that it was the property of the defendant rather than his mother and father or any other occupant of this mobile home. See
Tuggle v. State,
3. The trial court did not err in denying the defendant’s motion for directed verdict of acquittal on the grounds that others had equal access to the premises searched аnd that the circumstantial evidence did not exclude every other reasonable hypothesis save the guilt of the defendant. The totality of the evidence was sufficient tо connect the defendant to the possession of the drugs and to overcome his evidence contending he resided with his grandparents at another location even though the evidence would have authorized a finding that others had equal access to the drugs.
Smith v. State,
4. The next enumeration of error complains that the trial court erred in failing to grant defendant’s motion for a mistrial when the state introduced rebuttal testimony of a witness that on an occasion a week or two prior to the day that the drugs were found by the officers this witness had been with the defendant to the searched premises and “got some qualudes” from the gеneral area in the mobile home which the witness believed to be the defendant’s room. This testimony rebuts the testimony of the defendant that he did not reside there and establishes а motive for the defendant’s possession and for identity as the person possessing the drugs found in this room of the mobile home, even though the possession of other drugs (qualudes) would nevertheless place his character in issue. See
State v. Johnson,
5. The trial court did not err in sustaining an objection of the state to a voir dire question of prospective jurors as tо whether or not they would believe that where drugs were found in a specific location, or a specific residence, the one person that is arrested must be the guilty party although other suspects are possible. On voir dire the jurors should not be asked questions which might amount to a pre-judgment of the case.
Gunnin v. State,
6. During the chаrge the court instructed the jury as to actual and constructive possession but did not give language contained in a written request to charge with reference thereto that a finding of constructive possession must be based upon some connection between the defendant and the contraband other than
spatial proximity
arid this connection can bе established by evidence which shows the contraband was discovered on premises occupied by and under the control of the defendant with no equal right of access and occupancy in others. The defendant contends this written request was a correct statement of the law and should have been charged. However, the chargе as requested was argumentative, and the trial court was not required to give it as requested.
Leutner v. State,
7. For the same reasоns as those stated above, the trial court did not err in failing to give the defendant’s written request to charge with reference to equal access inasmuch as he was not present at the time of the search. As stated above, the court having fully charged on the principle of actual and constructive possession, it was not required to givе the charge requested in the exact language of the defendant’s request.
8. The remaining request to charge was based upon an instruction that where contraband is found in а house the presumption is that such contraband was in the possession of the head of the household. In
Knighton v. State,
Judgment affirmed.