Agan v. State, A91A1597

• Decision Date: 22 January 1992
• Docket Number: No. A91A1597,A91A1597
• Citation: 417 S.E.2d 156,203 Ga.App. 363
• Parties: AGAN v. The STATE.
• Court: Georgia Court of Appeals

Page 156

417 S.E.2d 156

203 Ga.App. 363

AGAN v. The STATE.

No. A91A1597.

Court of Appeals of Georgia.

Jan. 22, 1992.

Reconsideration Denied March 13, 1992.

Certiorari Granted May 22, 1992.

George E. Butler II, Atlanta, for appellant.

Robert E. Wilson, Dist. Atty., Barbara B. Conroy, Asst. Dist. Atty., for appellee.

COOPER, Judge.

This is the second appearance of this case in this court. Ramsey Agan, the Honorary Turkish Consul in Atlanta, and a co-defendant, Dr. Rauf Sarper, were indicted for bribery in 1987 and in 1988, after a trial by jury, and were convicted. Our first opinion, Agan v. State, 191 Ga.App. 92, 380 S.E.2d 757 (1989), contains a complete discussion of the facts leading to the indictments. Agan and Sarper transferred in excess of $7,000 denominated as campaign contributions to two DeKalb County Commissioners, in an attempt to gain their favorable votes on a zoning variance for property owned by Agan. Prior to trial, Agan and Sarper filed a joint motion to dismiss for selective prosecution and requested a full evidentiary hearing on that issue. The trial court held a pre-trial hearing on the motion at which a proffer of evidence was made by the defendants, yet the trial court concluded that the proffer was not sufficient to warrant an evidentiary hearing and denied the motion to dismiss. Defendants appealed their convictions, and this court reversed both convictions in Agan, supra. Sarper's conviction was reversed on the general grounds, and Agan's conviction was reversed on the jury charge and certain evidentiary issues. This court also determined that, based on the proffer of evidence by the defendants, the trial court erred in denying an evidentiary hearing on the issue of selective prosecution. The Georgia Supreme Court, in State v. Agan, 259 Ga. 541, 384 S.E.2d 863 (1989), declined to review the decision reversing Sarper's conviction, yet reversed this court with respect to Agan on the jury charge and rejected certain constitutional arguments raised by Agan. Nevertheless, the Supreme Court affirmed this court's decision on the issue of selective prosecution and remanded the case to the trial court with direction that an evidentiary hearing be accorded to Agan on his proffer. Pursuant to that direction, the trial court held a full evidentiary hearing on Agan's claim of selective prosecution and after hearing the evidence, issued an order in which Agan's motion to dismiss was denied because the court determined that Agan had not carried his burden to prove selective prosecution. It is from this order that Agan now appeals, raising six enumerations of error.

1. Appellant first enumerates that the trial court erred in ruling that he failed to prove the existence of selective prosecution in his case. " 'Some selective enforcement is not in itself a constitutional violation. [Cit.] To be a constitutional violation, the selective enforcement must represent an intentional and purposeful discrimination based upon some unjustifiable standard such as race, religion, or other arbitrary classification. [Cits.]' [Cits.] 'The burden (is) on (the defendant) to prove a selective prosecution by showing (1) that others generally are not prosecuted for the same misconduct, and (2) the decision to prosecute (him) was based upon impermissible grounds such as race, religion or exercise of constitutional rights.' [Cits.]" State v. Jackson, 188 Ga.App. 259(2), 372 S.E.2d 823 (1988). See Sabel v. State, 250 Ga. 640(4), 300 S.E.2d 663 (1983); State v. Causey, 246 Ga. 735(2), 273 S.E.2d 6 (1980). As stated in Georgia Dept. of Natural Resources v. Union Timber Corp., 258 Ga. 873(3), 375 S.E.2d 856 (1989), "[appellant] had the burden of presenting sufficient evidence of intentional or purposeful discrimination, ... [Cit.], which burden would not have been carried even if it had been shown that other persons or classes of persons may have violated the law without being prosecuted therefor. [Cit.]" In the instant case, the Georgia Supreme Court specified the evidence necessary for appellant to carry his burden, the response required of the State to counter appellant's proof, and the proof that would be sufficient to support an inference of the existence of discrimination by the trier of fact. The Supreme Court stated:

"[T]he fact that only one person is prosecuted for doing what many others do is no warrant, in itself, for relief. Agan has the burden of proving by the weight of the evidence that his prosecution represents an 'intentional or purposeful discrimination which is deliberately based upon an unjustifiable standard, such as race, religion, or other arbitrary classification.' This he must establish, if he can, by proving the averments of the proffer relative to other money transfers, and by showing, through the testimony of the district attorney or otherwise, the extent of any other investigations or prosecutions of donors who are situated similarly. If, notwithstanding the disclosure to the district attorney of the proffer materials, it should appear that he has conducted little or no investigation into apparently similar offenses, or has initiated no prosecutions of any such offenses, only then would it be incumbent upon the district attorney to demonstrate that the prosecution of Agan is something other than selective prosecution.

"Depending upon the evidence, the trial judge as trier of fact might find that similar offenses have gone uninvestigated or unprosecuted; that the district attorney knew or should have known of such offenses; and that failure to act is without a reasonable and responsible explanation. Based on such a finding, the trier of fact might conclude that the circumstances support an inference of the existence of 'intentional or purposeful discrimination' based upon an 'unjustifiable standard' of an 'arbitrary classification'--that is, an arbitrary classification whereby only Agan continues to be prosecuted, and all the rest go free. Such a conclusion would equate to selective prosecution." State v. Agan, supra 259 Ga. at 548-549, 384 S.E.2d 863 (Footnotes omitted.) (Emphasis supplied.)

At the evidentiary hearing before the trial court, appellant extensively examined four public officials, seven major real estate developers in the Atlanta area, a lawyer who represents many major developers in zoning matters, the two commissioners contacted by appellant and the district attorney, in an attempt to meet his burden of proof. Appellant subpoenaed public and personal records from the witnesses, and he presented evidence gleaned from the records produced. Appellant's proof at the hearing centered primarily on his theory of "chronological coincidence." Appellant contended that the first part of his burden was met by his proof that several other developers who were not prosecuted or even investigated had made campaign contributions to DeKalb County Commissioners at the time they had zoning matters pending before the commission. Appellant further argued and attempted to show that the two commissioners involved in this case were accepting money from these other developers for their favorable zoning votes and, in an attempt to deflect scrutiny from themselves, they reported Agan to focus attention upon him and to satisfy the public desire for investigation into these practices. Appellant completed his theory by attempting to prove that there was a "good old boy" conspiratorial network in DeKalb County consisting of the major real estate developers, attorney Douglas Dillard, a prominent zoning attorney, Manuel Maloof, the chief executive officer of DeKalb County, and Robert Wilson ("Wilson"), the DeKalb County District Attorney. Appellant contended, and endeavored to prove, that this "network" sustained and protected the practice of contributing to commissioners' campaigns to gain favorable zoning votes in return. Appellant alleged that this network, especially Manuel Maloof, was prejudiced against Turkish nationals and that all the discriminatory, prejudicial and conspiratorial motives of the "network" are imputed to the district attorney, thereby resulting in a prosecution selectively and discriminatorily focused on Turkish foreigners who were outside the system. The trial court, while...