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BELL, Chief Judge.
Drug violation. Monroe Superior Court. Before Judge Sosebee.
Defendant was convicted of selling phencyclidine in violation of the Georgia Controlled Substances Act. Held:
1. Defendant filed a discovery motion and a notice to produce. In response to these motions, the state furnished a list of witnesses and a copy of the report from the State Crime Laboratory. The state also advised the trial court that there was no evidence favorable to defendant in its files. The trial court then denied the motions. The defendant in a criminal case cannot compel the discovery and inspection of evidence in the possession of the state. Whitlock v. State, 124 Ga. App. 599 (185 SE2d 90). However, Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) does require the state on defendant's request to disclose evidence favorable either to defendant's guilt or punishment. Insofar as defendant's motions may be treated as coming within the rule of Brady v. Maryland, there is no showing here that the state suppressed any favorable evidence. The denials of the discovery motions were correct.
2. A witness for the state, the Sheriff of Monroe County, was permitted over objection to testify as to the content of a telephone conversation he had with Dennis Smarr, the individual to whom defendant allegedly sold the phencyclidine. The substance of the conversation was that Smarr volunteered to act as an undercover agent for the sheriff by making drug purchases in the county. The trial court admitted the sheriffs testimony for the limited purpose of explaining motive or conduct of this witness or of Dennis Smarr This testimony was explanatory of Smarr's conduct in purchasing controlled substances and was admissible. Code 38-302 authorizes the admission of a conversation which otherwise might be inadmissible as hearsay when the conversation explains conduct and ascertains motive. In another drug case, Watson v. State, 137 Ga. App. 530 (220 SE2d 446), we held the same testimony which involved the same witnesses as in this case inadmissible and cause for reversal. An examination of the record in that case shows that this court reversed on its own motion without the benefit of an enumeration of error raising the issue.
This ruling of law is erroneous whether with or without the benefit of an enumeration of error and we therefore expressly overrule the holding in Division 3 of Watson.
3. The state's witness, Smarr, was permitted to testify over defendant's objection that he had used marijuana in Viet Nam. The objection was that whether the witness had used marijuana in a foreign country was irrelevant and immaterial to any issue in this case. We agree that this testimony was inadmissible as a part of the state's case. However, the question could not have harmed the defendant as its only possible effect could have been to impeach one who was an adversary witness to the defendant. Nothing held in Watson v. State, supra, requires a holding to the contrary.
5. Defendant submitted written requests to charge Code 26-505 which provides that a defendant may be convicted of an included crime and defines that term; and that possession of phencyclidine is a lesser included crime of the sale of that substance and that the jury may find the defendant guilty of the lesser offense if they find defendant not guilty of the greater offense. These requests were denied. It is never error for a trial court to refuse to charge on a lesser included offense even though requested in writing when the evidence does not reasonably raise the issue that defendant may be only guilty of the lesser crime. Myers v. State, 97 Ga. 76 (25 SE 252); King v. State, 127 Ga. App. 83 (192 SE2d 392). In this case the state's evidence clearly showed that defendant sold phencyclidine to Smarr. Defendant offered no evidence. There is not the slightest suggestion in the state's evidence that defendant only possessed this controlled substance but did not sell it. Under this posture there were only two possible verdicts, viz., guilty as charged or a complete acquittal. As no issue was presented as to the included crime of possession, it was not error to refuse to charge the written requests.
6. The evidence authorized the conviction.
7. All other enumerations of error are without merit.
Ham, Mills & Freeman, Phillip Benson Ham, for appellant.
ARGUED MAY 3, 1976 -- DECIDED JULY 15, 1976 -- REHEARING DENIED JULY 29, 1976.
Friday May 22 08:37 EDT

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