Carpenter v. State

• Decision Date: 01 July 1983
• Docket Number: No. 66322,66322
• Parties: CARPENTER v. The STATE.
• Court: Georgia Court of Appeals

Page 19

307 S.E.2d 19

167 Ga.App. 634

CARPENTER v. The STATE.

No. 66322.

Court of Appeals of Georgia.

July 1, 1983.

Rehearing Denied July 28, 1983.

Certiorari Granted Sept. 6, 1983.

J. Dunham McAllister, Jonesboro, Bobby Lee Cook, Summerville, for appellant.

Robert E. Keller, Dist. Atty., Clifford A. Sticher, Asst. Dist. Atty., for appellee.

DEEN, Presiding Judge.

In May of 1979 appellant Carpenter was retained as counsel by Michael John Grassi, Jr., and ten co-defendants after they were arrested for possession of more than 14,000 lb. of marijuana with the intention to distribute. The other co-defendants ultimately obtained other counsel, but Carpenter continued to represent Grassi throughout the case. Hirsch Friedman, an attorney who had previously worked with Carpenter and who had also worked from time to time as an undercover agent for law enforcement agencies, was engaged by the Georgia Bureau of Investigation (GBI) to assist that agency, together with the Atlanta Police Department and the Federal Bureau of Investigation (FBI), on the bribery case that underlies this appeal.

As part of his undercover work Friedman, acting on information, went to a restaurant where appellant Carpenter was to meet persons involved in the marijuana case. Friedman and Carpenter got together at the restaurant (there is a conflict in the testimony as to who initially approached whom) and discussed the marijuana case, particularly that aspect involving the proposed bribery of Asst. District Attorney James Bradley, who at that time was in charge of the prosecution of the case. There ensued a number of meetings and telephone conversations between Friedman and appellant, sometimes with others involved in the case also present. During almost all these meetings and conversations except the first, Friedman wore transmitting and tape-recording equipment which enabled law enforcement personnel to listen to, and make a permanent record of, these discussions, which spanned a three-month period between September and December of 1979. Additionally, one of the meetings was videotaped, and another was observed in person by a high-ranking officer of one of the participating law enforcement agencies. One of the meetings was held at a restaurant table, the top of which the GBI had covered with carbon-backed paper for recording the handwritten notes which, in the interest of secrecy, had become a regular feature of the face-to-face meetings.

The result of all these meetings and telephone conversations was that Bradley, the assistant district attorney, was to be paid $50,000 if Grassi alone were freed, or $100,000 if all the other defendants were also freed. Friedman was to be paid to further the negotiations and to transmit the money from Carpenter to Bradley. It was decided that the best way to achieve the goal of freeing Grassi was for Bradley to lose on Grassi's motion to suppress, with a resultant nolle prosequi. An alternative suggestion that Bradley arrange for the case to be dead-docketed was rejected because in that posture prosecution of the case would be subject to revival at any time, whereas a nolle prosequi would result in a dismissal. The necessity of making it "look good" was emphasized. Throughout these discussions there were bandied about such names as that of Mike Thevis (a notorious Atlanta crime figure) and various mafiosi. At least twice Carpenter threatened Friedman with death "if this is a set-up."

Prior to trial the defense filed a number of motions in addition to the motion to suppress evidence, supra, among them a motion to inspect the money confiscated in the case; a motion for the production of the original tape recordings; a motion for production of copies of Grassi's statements (if any) and of the Georgia Crime Laboratory's reports; other motions of the Brady-Giglio type; and general and special demurrers. At the hearing on the Brady motion it was ascertained that the state had delivered to defense counsel all appropriate documents and other evidence. During the hearing on the motion to suppress, each witness, including Friedman, was extensively examined regarding Friedman's role in the case. The trial court denied all the defense motions except that for copies of the defendant's statements and the crime laboratory reports.

At trial the state presented the tape recordings of the meetings and telephone conversations. Appellant's tape expert testified that he had not had sufficient time to examine the tapes properly but that in his opinion they had been tampered with. Appellant testified that with one exception the tapes accurately reproduced what was said; that Friedman was paid $10,000 for "assistance" in representing Grassi; and that another Atlanta attorney received $7,500 for trying to arrange a plea bargain. A co-defendant testified that appellant had told him that he had paid Bradley to lose the motion to suppress, but that the bribe had not worked. Bradley, the assistant district attorney, did not testify.

After a Clayton County jury found appellant guilty, he was sentenced to serve six years in prison and to pay court costs amounting to almost $5,000. His motion for a new trial on the general grounds was denied, and on appeal he enumerates twelve errors. The first three enumerations have to do with the court's admitting the tape recordings into evidence and allowing Friedman to interpret them, but refusing to allow appellant's expert witness to examine the originals. Numbers eight through eleven challenge jury instructions on circumstantial evidence, the time of the crime's occurrence, standard of proof, and conspiracy. The enumerations numbered four and six assign as error the trial court's refusing to make an in camera inspection of the state's file and "restricting" appellant's cross-examination of Friedman. The fifth assignment of error concerns the court's denial of appellant's motion for a directed verdict of not guilty, and the seventh assigns as error the court's permitting the prosecutor in his closing argument to draw an inference of guilt from the relative seating positions of the defendant and his counsel. Finally, appellant enumerates as error the length of the sentence imposed. Held:

1. The trial court did not err in refusing to order the state to turn over the original tape recordings for examination by the appellant's independent expert. While fairness and due process require that a defendant have reasonable access to any potentially exculpatory evidence, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the evidence sought must be "material" and "of substantial probative force," White v. Maggio, 556 F.2d 1352 (5th Cir., 1977), and the defendant's right must be balanced against the state's legitimate interest in securing such evidence from alteration, loss, or destruction. Patterson v. State, 238 Ga. 204, 232 S.E.2d 233 (1977). Maggio, supra, decided at about the same time as Patterson, supra, set forth a two-pronged test for determining when the withholding of evidence by the prosecution constitutes reversible error. This test applies to tangible evidence and is triggered only when, as in the instant case, the defense has made a specific rather than a general request for potentially exculpatory evidence. The evidence sought must be both "critical" to conviction and subject to varying expert opinion. Id. at 1356.

In Moore v. State, 240 Ga. 807, 243 S.E.2d 1 (1978), the Supreme Court of Georgia confined Patterson, supra, to its own facts; that is, to narcotics cases only. In Sabel v. State, 248 Ga. 10, 17, 282 S.E.2d 61 (1981), however, the court, citing Maggio, extended the Patterson rationale to non-narcotics cases: "A criminal defendant on trial for his liberty is entitled on motion timely made to have an expert of his choosing, bound by appropriate safeguards imposed by the court, examine critical evidence whose nature is subject to varying expert opinion." Compare Barnard v. Henderson, 514 F.2d 744 (5th Cir.1975).

At first blush the facts in the instant case would seem to fulfill the Sabel criteria: The authenticity of the tapes is undoubtedly "subject to expert opinion"; the motion was indisputably timely made; and appellant was undeniably "on trial for his liberty." The Maggio test is stated conjunctively, however--the evidence sought must be both critical and subject to varying expert opinion. The crux of the matter thus becomes, as the state argues in its brief, whether the original tapes, concededly subject to varying expert opinion, constituted "critical" evidence in the case sub judice.

Maggio defines critical evidence, for due process purposes, as "evidence that, when developed by skilled counsel and experts, could induce a reasonable doubt in the minds of enough jurors to avoid a conviction." White v. Maggio, supra at 1357, 1358. In Maggio the badly damaged spent bullets which the defendant sought to have subjected to independent analysis were the only tangible evidence connecting him with the murder with which he was charged; the remainder of the evidence against him was very weak, and doubt as to the bullets' identity could have seriously impaired or even destroyed the state's case.

In the instant case, however, the tapes were but a single strand--albeit a rather bulky one--in the extensive web of evidence constituting the fabric of the prosecution's case. The testimony of the law enforcement officers who observed and/or listened to the radio transmissions of the lengthy negotiations, coupled with that of other witnesses, not only confirms the authenticity of the tapes but builds so powerful a case as to leave little, if any, room for reasonable doubt in the minds of the triers of fact. Moreover, appellant's expert conceded that the copies provided him were of high quality. The chief function of the tapes in the prosecution's case was to bring home to the jurors in a concrete and dramatic way the enormity of the offense with which ...