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MIDURA v. THE STATE (two cases).
73764.
73765.
BENHAM, Judge.
Drug violation. Forsyth Superior Court. Before Judge Mills.
Appellants Julie and Henry Midura (Ed) were convicted of possession of marijuana with intent to distribute. In the second portion of a bifurcated trial, Ed Midura was convicted of the possession of firearms by a convicted felon. On appeal, appellants take issue with the sufficiency of the evidence, the denial of their motion to suppress, and the effectiveness of trial counsel.
2. Appellant Ed Midura's contention that the evidence was not sufficient to convict him of possessing firearms while a convicted felon because the weapons were not tendered into evidence is without merit. Clayton v. State, 149 Ga. App. 374 (1) (254 SE2d 495) (1979). He also contends that the evidence submitted in assessing punishment as a recidivist (see OCGA 17-10-7 (a)) is insufficient in light of the State's use of "uncounselled" convictions from Clayton County. Inasmuch as it was incumbent upon appellant to provide a transcript of the proceeding ( Chancey v. State, 256 Ga. 415 (11) (349 SE2d 717) (1986)) and none has been filed, we must assume that the evidence presented at the sentencing hearing supported the sentence imposed by the trial court. See Wallace v. State, 166 Ga. App. 900 (305 SE2d 674) (1983).
3. Both appellants maintain they were denied effective assistance of counsel at trial. Because appellants are represented on appeal by counsel other than trial counsel, and no motion for new trial was filed, "we remand the case to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel. Smith v. State, 255 Ga. 654 (3) (341 SE2d 5) (1986)." Hambrick v. State, 256 Ga. 148 (5) (344 SE2d 639) (1986).
4. Appellate counsel, by expressly adopting the arguments of the allegedly ineffective trial counsel, asserts as error the denial of appellants' motion to suppress evidence seized during a search of their residence and vehicles executed pursuant to a search warrant. Appellants maintain that the scope of the search warrant was overbroad and that the warrant was issued without probable cause in that the reliability of the informant was not demonstrated, and the information given by the informant was stale.
The affiant officer based his February 19, 1985, affidavit upon information received from a "noninformant hearsay declarant" ( Devier v. State, 247 Ga. 635 (5) (277 SE2d 729) (1981)), who was identified in the affidavit and who had admitted her participation in ongoing criminal activity concerning the acquisition and distribution of large quantities of marijuana and cocaine. The officer related that the declarant had told him she had witnessed the purchase of two bales of marijuana from appellant Ed Midura (procured from the basement of his residence) in December 1984, and three additional purchases of "pounds of marijuana and a large volume of cocaine" during December 1984 and January 1985. The declarant stated that appellant Ed Midura was the supplier for a number of other drug dealers, which information coincided with "known intelligence" on the dealers. The affiant found the Midura residence as described by the declarant, and also found Ed Midura to have been twice convicted of drug violations and arrested on drug charges five other times. A GBI agent supplied the affiant with information indicating appellant Ed Midura had been "in the business of buying and selling drugs over the past 3 years. . . ."
" 'The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . concluding" that probable cause existed.' " State v. Luck, 252 Ga. 347, 348 (312 SE2d 791) (1984). Inasmuch as the declarant was named, was a declarant against penal interest, and her statements were based upon personal observation, the magistrate had a substantial basis for crediting her hearsay. Lewis v. State, 255 Ga. 101 (2) (335 SE2d 560) (1985); Devier v. State, supra; Peacock v. State, 170 Ga. App. 309 (1) (316 SE2d 864) (1984).
Appellants also argue that the declarant's information was stale, noting the warrant was issued approximately one month after the declarant's observation of appellants' purported criminal activity. "Time is assuredly an element of the concept of probable cause. [Cit.] However, the precise date of an occurrence is not essential. Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant. [Cit.] When the affidavit indicates the existence of an ongoing scheme to sell drugs, the passage of time becomes less significant than would be the case with a single, isolated transaction. [Cit.]" State v. Luck, supra at 347. The trial court did not err in failing to find the declarant's information stale.
App. 340 (214 SE2d 383) (1975).
5. In appellant Ed Midura's final enumeration of error, he contends that testimony concerning post-arrest conversations he had with police officers should not have been admitted. Appellant has not cited authority for his position and has failed to support his enumerated error with "specific reference to the record or transcript. . . , Court of Appeals Rule 15 (c) (3) (i). Therefore, we will not consider appellant's argument. Watson v. State, 153 Ga. App. 545 (4) (265 SE2d 871) (1980).
CARLEY, Judge, concurring specially.
Rafe Banks III, District Attorney, T. Russell McClelland II, Assistant District Attorney, for appellee.
Billy L. Spruell, for appellant.
DECIDED JULY 2, 1987.
Thursday May 21 14:06 EDT


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