Ansley v. State

• Decision Date: 27 September 1971
• Docket Number: 46216,3,Nos. 1,2,Nos. 46215,s. 46215,s. 1
• Citation: 124 Ga.App. 670,185 S.E.2d 562
• Parties: B. Hugh ANSLEY v. The STATE. Richard A. PETREE, Sr. v. The STATE
• Court: Georgia Court of Appeals

Page 562

185 S.E.2d 562

124 Ga.App. 670

B. Hugh ANSLEY v. The STATE.

Richard A. PETREE, Sr. v. The STATE.

Nos. 46215, 46216.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Sept. 27, 1971.

Rehearing Denied Oct. 22, 1971.

Certiorari Denied Dec. 1, 1971.

Syllabus by the Court

1. An offense under Code Ann. § 26-2304(b) is bribery in the sense the word is used in 18 U.S.C. § 2516(2) and Code Ann. § 26-3004(c).

2. The penalty for a violation of 18 U.S.C. § 2518(8)(a) in failing to deliver recordings immediately to a judge issuing a surveillance order is limited to the contempt power of the judge and such a violation does not render the evidence inadmissible.

3. The surveillance was not improperly conducted by reason of any deficiencies in the order, warrant, or supporting affidavit.

4. The surveillance preceding the order, a party having consented to the recordings to detect communications in furtherance of the commission of a crime, comes within the exceptions of 18 U.S.C. § 2511(2)(c, d) and Code Ann. § 26-3006.

5. Statements surreptitiously obtained from individuals who were then suspects not in custody did not violate constitutional standards requiring counsel or otherwise applicable to individuals in custody or individuals in a defendant stage of the proceedings.

6. The trial judge did not abuse his discretion in refusing to require the State to elect to proceed with the prosecution under Code Ann. § 26-2301 or Code Ann. § 26-2304(b).

7. An acquittal of bribery laid under Code Ann. § 26-2301(2) under the circumstances here disclosed is not repugnant and inconsistent with a conviction of soliciting to influence legislative action under Code Ann. § 26-2304(b).

Richard A. Petree, Sr., an alderman of the City of Atlanta, and Benjamin Hugh Ansley, as his abettor, were tried together, convicted, and sentenced under Count 2 of an indictment alleging a violation of Code Ann. § 26-2304(b) on March 5, 1970, in soliciting $30,000 for an agreement to procure the passage of zoning legislation by the Board of Aldermen. The same jury simultaneously acquitted the defendants under Count 1 of the indictment, alleging a violation of Code Ann. § 26-2301, in soliciting $30,000 for Petree to use his influence and to obtain his vote for the passage of the same zoning legislation described in Count 2. The appeals are substantially identical.

Cook & Palmour, Bobby Lee Cook, Summerville, Shulman, Alembik & Rosenbluth, Arnold Shulman, Atlanta, for appellants.

Lewis R. Slaton, Dist. Atty., Carter Goode, J. Melvin England, Joel M. Feldman, Atlanta, for appellee.

JORDAN, Presiding Judge.

1. On the ex parte verified petition of the District Attorney of the Atlanta Judicial Circuit and a supporting affidavit of one of his assistants a judge of the Atlanta Judicial Circuit issued an investigative warrant and order dated March 13, 1970, to permit surveillance, including the use of recording devices, within specified areas of Fulton County for a period terminating at midnight, March 21, 1970, to obtain evidence relating to the offense of improperly influencing legislative action under Code Ann. § 26-2304(b). The defendants contend that the trial judge erred in failing to sustain a motion to suppress because the offense described under Code Ann. § 26-2304(b) is not 'bribery' as the word is used in 18 U.S.C.A. § 2516(2) or Code Ann. § 26-3004.

The cited federal statute, enacted as a part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968; P.L. 90-351; 82 Stat. 197, 217; 18 U.S.C. § 2516(2), provides that on application by a principal prosecuting attorney 'to a State court judge of competent jurisdiction' the judge, in conformity with other provisions of the law and the applicable State statute, may authorize or approve 'the interception of wire or oral communications by investigative or law enforcement officers' when the interception 'may provide or has provided evidence . . . of the offense of . . . bribery . . . or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception.'

While the trial judge cited the applicable State law as 'Section 26-2005, Georgia Code Annotated' the applicable law is Code Ann. § 26-2004(c), which is substantially identical to the statute which it superseded. Both refer to 'any crime under the laws of this State, or the United States involving . . . bribery.' See and compare Ga.L.1967, pp. 844, 847; 1968, pp. 1249, 1328.

In statutory enactments 'ordinary signification shall be applied to all words, except words of art, or words connected with a particular trade or subject-matter, when they shall have the signification attached to them by experts in such trade, or with reference to such subject-matter.' Code § 102-102(1). In ordinary signification 'bribery' may mean an 'act of influencing the action of another by corrupt inducement.' Merriam-Webster's New International Dictionary, 2d Ed., Unabridged. A standard meaning as a legal word of art is somewhat broader to include 'offering, giving, receiving, or soliciting of anything of value to influence action as (an) official or in discharge of (a) legal or public duty.' Black's Law Dictionary, 4th Ed.

The only offense expressly designated as bribery under Georgia law is Code Ann. § 26-2301, covering one who 'solicits' something for 'the purpose of influencing' official action. In this sense it is obvious that the offense under § 26-2304(b) covering one who 'asks for' something 'in return for an agreement to procure or attempt to procure' legislative action is also a species of bribery, regardless of the label used by the General Assembly.

Accordingly, we conclude that Code Ann. § 26-2304(b) is an offense coming within the provisions of 18 U.S.C. § 2516(2) and Code Ann. § 26-3004(c).

2. In urging that electronic recordings obtained pursuant to the investigative warrant were erroneously admitted

in evidence the defendants emphasize the fact that the recordings were not delivered immediately to the issuing judge. The warrant and order dated March 13, 1970, provided for 'return hereof and report as required by law before me within thirty days of the date hereof.'

The applicable State statute requires a return and report within a maximum of 30 days of the issuance of the warrant. Code Ann. § 26-3004(i). It appears that return was made on or about April 7, 1970, and within 30 days from the date of the order. The applicable federal provision requires that the recordings are to be made available to the judge issuing the order immediately upon the expiration of the period of the order and are to be sealed under his direction. 18 U.S.C. § 2518(8)(a). Evidence obtained in violation of any of the provisions of the State law is inadmissible, except to prove an unlawful surveillance or invasion of privacy. Code Ann. § 26-3007. But the penalty for a violation of the above stated requirements of the federal statute is limited to the contempt powers of the issuing judge. 18 U.S.C. § 2518(8)(c). Such a violation is not included in the allowable grounds of a motion to suppress. 18 U.S.C. § 2518(10).

The evidence was not inadmissible for any reason here argued.

3. In attacking the validity of the order authorizing the surveillance the defendants rely on Cross v. State, 225 Ga. 760, 171 S.E.2d 507; Burns v. State, 119 Ga.App. 678, 168 S.E.2d 786; and Fowler v. State, 121 Ga.App. 22, 172 S.E.2d 447. We have carefully examined these cases in the light of the order in this case and conclude that these cases afford no basis for a determination that the surveillance was improperly conducted by reason of any alleged deficiencies in the order or warrant and the supporting affidavit. A reading of the Cross case shows that it deals only with Chapter 119 of 18 U.S.C.A. relating to the requirement for obtaining an order authorizing wire tapping and 18 U.S.C. § 2518(4)(e) and (5) as to the requirements for the contents of such order. The facts in this case show clearly that an order was obtained as required and that the contents of such order met the requirements of both federal and state statutes, thus taking this case out of the holding in Cross.

4. The defendants contend that telephone messages intercepted preceding the surveillance order violated State and federal law, arguing that at the time there was no commission of a crime and that the messages were not in furtherance of a crime. It is undisputed that these recordings were made through devices placed in the office of one of the persons named in the indictment as a person from whom money had been and was being solicited, who expressly consented to the surveillance, and the evidence amply supports a conclusion that the messages were in furtherance of the commission of a crime.

Under Georgia law a permissible exception is recognized 'in those instances wherein the message shall be initiated or instigated by a person and the message shall constitute the commission of a crime or is directly in the furtherance of a crime, provided at least one party thereto shall consent.' Code Ann. § 26-3006. The federal law includes similar exceptions. 18 U.S.C. § 2511(2)(c, d).

It is also contended that the evidence discloses that these recordings were 'so inaudible and indistinct in many portions that would require, therefore, the jury to merely speculate as to what was said.'

The above contentions are without merit.

5. It is further asserted that the constitutional rights of the defendants were 'violated when they were, by electronic surveillance, exposed to interrogation by law enforcement officers without being advised at that time that they would have the right to counsel, and unless counsel was present at the time of interrogation.' The argument is advanced on the theory that during the period of surveillance immediately before apprehension, with an arrest warrant already issued...