Caudill v. State, 61350
| Decision Date | 09 February 1981 |
| Docket Number | No. 61350,61350 |
| Citation | 157 Ga.App. 415,277 S.E.2d 773 |
| Parties | CAUDILL v. The STATE. |
| Court | Georgia Court of Appeals |
Herbert Shafer, Atlanta, for appellant.
Thomas Charron, Dist. Atty., Joseph L. Chambers, Mary E. Staley, Asst. Dist. Attys., for appellee.
This is an appeal from the dismissal of a motion to suppress evidence obtained from a telephone wiretap in a prosecution for commercial gambling and communicating commercial gambling information. The appellant contends that the assistant district attorney handling the case for the state, Joseph L. Chambers, obtained the dismissal order through the use of improper and unethical tactics and asks this court to dismiss the indictment as sanction against the alleged improprieties.
The electronic surveillance was conducted in 1977. However, due to plea negotiations with two defense attorneys who formerly represented the appellant, it was not until May of 1980 that the state sought and obtained an indictment. At the arraignment hearing, held on June 19, 1980, the case was set for trial on August 11, 1980, and the appellant was given five days in which to file pretrial motions. The case was placed on the July 9, 1980, motion calendar for consideration of any such motions; however, none were filed; and consequently, neither the appellant nor his newly retained attorney appeared at that time. Based on their non-appearance, the trial court, in the person of the Honorable Watson L. White, ruled orally that any defense motions filed in the case were dismissed, and the court clerk made the following notation in the docket: "No answer any motion filed to be dismissed."
Mr. Chambers did not represent the state at the July 9 calendar call; however, on the same date he sent a letter to defense counsel, as required by Code Ann. § 26-3004(j) and 18 U.S.C.A. § 2518(8)(d) and (9), notifying him that certain of the appellant's communications had been intercepted for use as evidence against him and offering to make the substance of these intercepted communications available upon request. The letter contained copies of the applications for the surveillance warrants, the affidavits in support of the warrants, and the warrants themselves, as required by the statutes.
Because the letter was not sent to defense counsel's current office address, it was delayed in reaching him. On August 8, 1980, he filed a motion to suppress and obtained a rule nisi from the then presiding judge, the Honorable Howell C. Ravan, setting a hearing on the motion for October 1, 1980. The case was evidently removed from the August 11 trial calendar as the result of this order, although no motion for continuance or order of continuance appears in the record.
Judge Ravan subsequently continued the hearing from October 1 to October 2. When the case was called on October 2, however, Chambers presented the court with an ex parte order which he had obtained from Judge White the previous day, without notice to the defense, purporting to dismiss the August 8 motion to suppress on the basis of the July 9 order dismissing all motions in the case. After hearing evidence as to the circumstances under which Chambers had obtained the ex parte order, Judge Ravan acceded to it but certified it for immediate review to this court. The appellant made a timely application for interlocutory review, which we granted. Held :
1. The argument advanced by the state as justification for the ex parte dismissal order of October 1, is that Judge White's oral dismissal order of July 9, applied prospectively so as to constitute an automatic dismissal of any subsequent motion which the appellant might file in the case and that the October 1 order merely reduced that order to writing. We find this theory so unacceptable on its face that it is difficult to believe it is advanced in good faith. This difficulty is increased by the fact that Judge White testified that he did not intend for the July 9 order to have such effect. (Although the written order of October 1, which was prepared by Mr. Chambers, makes specific reference to the motion to suppress filed August 8, Judge White also testified that he did not realize the order contained such language when he signed it.)
We proceed to an underlying issue whether, in any event, the state had grounds to seek the dismissal of the motion to suppress. The state is required under both federal and state law to make certain disclosures to the defendant in a prosecution based on wiretap evidence. See generally Orkin v. State, 236 Ga. 176, 179, 223 S.E.2d 61 (1976); Cox v. State, 152 Ga.App. 453, 263 S.E.2d 238 (1979). One such disclosure is set forth in 18 U.S.C.A. § 2518(9), which provides as follows: "The contents of any intercepted wire or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved." Pursuant to this statute, and to the further requirements of 18 U.S.C.A. § 2518(8)(d) and Code Ann. § 26-3004(j), Chambers applied for and...
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Stola v. State
...surveillance. Assuming arguendo that the denial of this motion was erroneous (see OCGA § 16-11-64(b)(7); Caudill v. State, 157 Ga.App. 415(1), 277 S.E.2d 773 (1981); accord State v. Braeunig, 122 N.J.Super. 319, 300 A.2d 346 (1973)), any error was harmless in light of the total absence of r......
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...judge reconsiders the prior order and effectively reasserts the decision before certifying it for review. See Caudill v. State, 157 Ga.App. 415, 417(2), 277 S.E.2d 773 (1981). In the instant case, the removal order in question was issued by the original trial judge in Floyd County. The cert......
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Luck v. State, 64000
...because the state had not complied with the "disclosure" provision of Code Ann. § 26-3004(j). See generally Caudill v. State, 157 Ga.App. 415, 416(1), 277 S.E.2d 773 (1981). By its express terms, Code Ann. § 26-3004(j) relates only to the disclosure of evidence of intercepted conversations ......
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