Ayers v. State, s. 72608

Citation181 Ga.App. 244,351 S.E.2d 692
Decision Date02 December 1986
Docket NumberNos. 72608,72609 and 72610,s. 72608
PartiesAYERS v. The STATE. JARRETT v. The STATE. AYERS v. The STATE.
CourtUnited States Court of Appeals (Georgia)

Herbert Shafer, Atlanta, for appellants.

Robert E. Wilson, Dist. Atty., John H. Petrey, Susan Brooks, Asst. Dist. Attys., for appellee.

BEASLEY, Judge.

The three defendants were convicted of commercial gambling, OCGA § 16-12-22, communicating gambling information, OCGA § 16-12-28, and keeping a gambling place, OCGA § 16-12-23. Individually, Ellis Ayers and Edward Ayers, his son, were also each convicted of possession of cocaine, OCGA § 16-13-30; and Gene Jarrett was convicted of trafficking in cocaine, OCGA § 16-13-31.

1. The central core of each individual's defense involves violation of the disclosure provisions of the state and federal wiretapping laws. These issues are addressed in enumerations of error two through eight in each case, which we thus consider as a unit.

Cox v. State, 152 Ga.App. 453, 263 S.E.2d 238 (1979), discussed the portion of the Omnibus Crime Control and Safe Streets Act dealing with the interception and disclosure of wire or oral communications, 18 U.S.C. § 2510 et seq., and its relation to state legislation. Besides federal procedure for authorization of wire taps the Act provided for concurrent state regulation of wire taps. 18 U.S.C. § 2516(2). The federal act establishes the minimum standards which must be met, but a state statute may provide for more stringent or exacting standards. Since Georgia does have provisions regulating wire taps, OCGA § 16-11-60 et seq., both laws must be complied with where applicable. Orkin v. State, 236 Ga. 176, 179, 223 S.E.2d 61 (1976).

The federal law provides a comprehensive classification of situations under which information garnered by wiretap may be disclosed. 18 U.S.C. § 2517 (1-5). Reference is made to information provided by or to an "investigative or law enforcement officer," who is defined under 18 U.S.C. § 2510(7) as "any officer of the United States or of a state or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter...." 18 U.S.C. § 2515 requires: "Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial [etc.] ... if the disclosure of that information would be in violation of this chapter."

The Georgia provision as to disclosure of information is more precisely to the point. It reads: "Any publication of the information or evidence obtained under a warrant issued hereunder other than that necessary and essential to the preparation of and actual prosecution for the crime specified in the warrant shall be an unlawful invasion of privacy under this part and shall cause such evidence and information to be inadmissible in any criminal prosecution." OCGA § 16-11-64(b)(8).

There are three instances of disclosure about which defendants complain. First, at the hearing on the motion to suppress members of the general public were admitted. Defendants urge that their objections to permitting "outsiders" should have been sustained and that the hearing should have been "closed." Second, the state obtained an order from a senior judge to permit it to disclose information obtained from wiretaps to an IRS excise tax agent who made wagering tax assessments. The agent was used to interpret intercepted phone conversations and prepare the case against defendants. Defendants contend the senior judge was not authorized to issue an order permitting the disclosure and that the disclosure without valid permission violated both state and federal law. Third, the information was utilized in presenting the cases to the grand jury with regard to the drug related offenses. Defendants contend this was without prior authorization as required by 18 U.S.C. § 2517(5), which mandates that when evidence of other crimes is to be used there must be a subsequent application to a judge for determination as to whether the contents were intercepted in accordance with the statutory provisions.

(a) Federal statute.

Contrary to defendants' assertions, 18 U.S.C. § 2515 does not require exclusion of evidence where there is an unauthorized disclosure.

Resha v. United States, 767 F.2d 285, 288 (6th Cir.1985) held: "We construe § 2515 to permit suppression of evidence only if that evidence was derived from unlawful, improper or unauthorized interceptions of wire or oral communications. It does not authorize suppression for disclosures of such information, even if they violate § 2517. This determination is based upon the legislative history of the Act and court decisions that require § 2515 to be read "in light of" 18 U.S.C. § 2518(10)(a)...." The latter provides that an aggrieved person may move to suppress the contents of a Chapter 25 wire or oral communications intercept only on the grounds that "(i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval."

Resha relied upon United States v. Donovan, 429 U.S. 413, 432, 97 S.Ct. 658, 670, 50 L.Ed.2d 652 (1977) which held: "Section 2515 expressly prohibits the use at trial, and at certain other proceedings, of the contents of any intercepted wire communication or any evidence derived therefrom 'if the disclosure of that information would be in violation of this chapter.' The circumstances that trigger suppression under § 2515 are in turn enumerated in § 2518(10)(a)...."

Thus, none of the grounds asserted present a reason for excluding the evidence predicated on 18 U.S.C. § 2515. Since federal law was the sole basis for enumeration of error 8, it falls. This leaves only the question of whether the first (enumeration of error two) and second (enumerations of error three through seven) situations show a violation of state law.

(b) State statute.

(1) There was no reversible error in refusing to exclude the several spectators and conduct a closed hearing, as contended in enumeration two. Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), which reversed Waller v. State, 251 Ga. 124, 303 S.E.2d 437 (1983), established that the Sixth Amendment right to a public trial applies to a suppression hearing. It further declared that under Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), "the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." Waller, supra, 467 U.S. at 48, 104 S.Ct. at 2216.

The reason is that openness of criminal proceedings is so highly valued that it is given presumptive status. "The open trial thus plays as important a role in the administration of justice today as it did for centuries before our separation from England. The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system. Richmond Newspapers, Inc. v. Virginia, 448 U.S. , at 569-571 [100 S.Ct. 2814, 2823-2824, 65 L.Ed.2d 973 (1980) ]." Press-Enterprise, supra, 464 U.S. at 508, 104 S.Ct. at 823. See also Waller, supra, 467 U.S. at 44-45, 104 S.Ct. at 2214-15. Thus the statute limiting publication does not automatically override the openness principle or the First Amendment and turn criminal proceedings into closed events. See also Cox v. State, supra, 152 Ga.App. at 463(3), 263 S.E.2d 238. In Waller the state desired the closure and defendant objected on Sixth Amendment public trial grounds. Here the defendants objected and sought closure under the statute but failed to establish such overriding interest that would require a closure as a matter of law.

(2) Construing the necessity for restricting publication to those instances necessary and essential to the preparation of an actual prosecution for the crime, the Supreme Court in Orkin, supra, 236 Ga. at 189, 223 S.E.2d 61, rejected the argument that "necessary and essential" meant indispensable, i.e., only those publications so fundamentally required for criminal prosecution that they cannot be avoided. "The construction to be given the statute is rather what is reasonably necessary and essential to the preparation of and actual prosecution for a crime. What is reasonable will depend upon the facts of a given case and must necessarily rest in the controlled discretion of the district attorney, subject to review by the trial court. Where there is evidence to support the decision of a trial judge on motion to suppress evidence, that decision will not be disturbed on appeal." Accord Cox v. State, supra, 152 Ga.App. at 463(3), 265 S.E.2d 238; Van Nice v. State, 180 Ga.App. 112, 348 S.E.2d 515 (1986), which points out that this includes information obtained to further investigation about other crimes.

Regardless of whether the senior judge had authority to approve publication of the information, we find that, even without prior judicial approval, the trial court did not abuse its discretion in refusing to suppress the evidence because of the district attorney's action in disseminating the information to the IRS agent in furtherance of the investigation. Enumerations of error three...

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