Rоbert Underwood appeals his conviction of violation of Georgia Controlled Substances Act, OCGA § 16-13-30, by unlawful manufacture of and possession with intent to distribute marijuana. He enumerates four errors. Held:
1. The trial court did not err in denying appellant’s motion to suppress and in admitting the evidencе seized at trial. The State contends the search of appellant’s home and the seizure of numerous marijuana plants being grown therein were lawful, as both were accomplished pursuant to a consent to search freely and voluntarily given by appellant.
In determining legality оf a search, an appellate court can consider all relevant and admissible evidence of record, including that adduced at a suppression hearing before trial and that adduced during trial.
Newsome v. State,
The testimony of the State and the defense as to the circumstances surrounding the entry and search of appellant’s home and as to whether appellant consented to the search was in conflict. The trial court judged witness credibility and weighed the evidence presented and thereafter found: “The defendant was lawfully in custody under arrest and that any statements that he made to the officers were freely and voluntarily made without the slightest hope of benefit or reward and without the remotest fear of injury after having all of his rights as required under the
Miranda
decision explained to him and that he understood those rights. It is also the judgment of the court that the search of his premises was consented to by the defendant after he knew that he did not havе to consent and understood that the officers would have to have a search warrant if he insisted and that he then consented to that and he voluntarily consented to that.” Inherent within this ruling denying the suppression motion is a finding that appellant’s arrest was lawful, that his voluntary consent to searсh was also freely given, and that his freely and voluntarily given statements were not obtained in violation of his
Miranda
rights. See
Garcia,
supra at 637 (1). “When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge ‘hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury аnd should not be disturbed by a reviewing court if there is any evidence to support it.’ [Cit.] Second, the trial court’s decision with regard to questions of fact and
credibility
must be accepted unless clearly erroneous. [Cit.] Third, the reviewing court must construe the evidence most favorably to the upholding of the triаl court’s findings and judgment. [Cit.]”
Tate v. State,
Pretermitting whethеr a warrant of arrest was issued before the Secret Service agents arrested appellant is whether probable cause existed to justify his warrantless arrest. “A ‘warrantless arrest’ is constitutionally valid if at the time of the arrest the arresting officer has probable cause to believe the accused has committed or is committing an offense. [Cits.] Probable cause exists if the arresting officer has knowledge and reasonably trustworthy information about facts and circumstances sufficient for a prudent person to believe the accused has committed an offense.”
Johnson v. State,
It is the facts and circumstances existing within the knowledge of the arresting officer at the moment arrest occurs which are controlling.
Barnett v. State,
2. Appellant’s second enumeration is that the trial court erred in denying his
Jackson-Denno
motions. This enumeration is without merit. See our holding in Division 1 above. Moreover, the record establishes that none of plaintiff’s statements admitted in evidence was obtained in violation of his privilege against self-incrimination under either the Constitution of Georgia or the Fifth Amendment of the United Statеs Constitution. The statements made by appellant to the police were either spontaneous, voluntary and not the product of an interrogation, or such statements were made after appellant was given a valid
Miranda
warning and had waived his rights thereunder. Appellant contends certain of his statements made during the agent’s questioning were inadmissible because, after being advised of his
Miranda
rights, he handed the agent a business card of his attorney which contained on the back a preprinted statement purporting to assert a refusal to consent to search, a clаim of exercise of the right to remain silent, and the exercise of the right to have his attorney present during questioning. Pretermitting whether such an ambiguous act places a burden on law enforcement officers to inquire whether any of the rights addressed on the preprinted business card are, in fаct, being asserted (compare
Byrd v. State,
Additionally, “factual and credibility determinations, whether express or
implied,
as to voluntariness of a confession, including factual and credibility determinations as to issues of rights waiver, are normally made by the trial judge and must be accepted by appellate
*534
courts unless such determinations are clearly erroneous.” (Punctuation omitted; emphasis supplied.)
Rachell v. State,
3. Appellant asserts the trial court erred in denying his motion for mistrial. During the course of examining a Secret Service agent as to how they determined that it was appellant who had been passing some counterfeit bills, which led to the arrest of appellant, the State asked a series of questions of the witness. During the course of attempting to answer the gist of the State’s questions, the agent revealed to the jury that research of the agency’s files determined that appellant previously had been arrested by the agency for counterfeiting. Appellant made an immеdiate motion for mistrial; the motion was denied; appellant elected not to request any form of curative instruction; and the trial court did not give such an instruction sua sponte.
Appellant’s failure to request a curative instruction constitutes a waiver of any appellate issues regarding the giving of such an instruction to the jury. See
Carr v. State,
The abuse of discretion standard applies to the review of the denial by the trial court of a motion for mistrial.
Muzquiz v. State,
4. Appellant’s enumeration that the trial court erred by engaging in “a conversation with the jury that consisted of a question and answer period” is without merit.
No objection was posed to the so-called question and answer period notwithstanding that this conversation occurred in open court and on the record. Appellant’s contention that this procedure deprived him of a reasonable opportunity to respond, make suggestions, or make objections is not affirmatively supported by the record; to the contrary, there appears to have been ample opportunity for counsel to
*535
have injeсted himself into the colloquy had he chosen, as a matter of sound trial tactics, to do so. The failure of appellant to object timely to the colloquy in open court preserves no issue thereto upon appellate review. See
Brooks v. State,
Additionally, this is not a case involving an unauthorized communication between the court and the jury, which would give rise to a presumption of prejudice. Compare
Lockridge v. State,
Further, we note that appellant does not assert that the trial court erred as to the substance of its recharge and
Allen
charge to the jury following the court’s colloquy with the jury foreman to determine in open court the type and nature of the question which the jury wished to pose. The colloquy on its face poses no fair risk of prejudice to the fair trial rights of appellant. An appellant must show both error and harm affirmatively by the record to obtain case reversal when, as in this case, the trial court engages in open court in a legitimate colloquy with the jury. See
Robinson v. State,
Judgment affirmed.