Elliott v. State

• Decision Date: 07 November 1983
• Docket Number: No. 67250,67250
• Citation: 310 S.E.2d 758,168 Ga.App. 781
• Parties: ELLIOTT v. The STATE.
• Court: Georgia Court of Appeals

Page 758

310 S.E.2d 758

168 Ga.App. 781

ELLIOTT v. The STATE.

No. 67250.

Court of Appeals of Georgia.

Decided Nov. 7, 1983.

Fred M. Hasty, Macon, for appellant.

Willis B. Sparks III, Dist. Atty., Virgil L. Adams, G.F. Peterman III, Asst. Dist. Attys., for appellee.

QUILLIAN, Presiding Judge.

Tried for bribery and nine counts of violation of the controlled substances and dangerous drug acts, defendant appeals his conviction for bribery.

Defendant was a probation officer and Little was one of his probationers. Little was accused of burglary and testified that defendant approached him about fixing the sentence in the burglary. Little testified that defendant told him that he could help Little if Little paid him some money and delivered him some drugs. Little contacted his attorney who informed the district attorney. An investigator wired Little with a concealed radio transmitter and recorded conversations between Little and defendant at three meetings they had. At the second meeting Little gave defendant $1200 supplied by the investigator and at the third meeting Little gave defendant an additional $1300 and a bag of various drugs, also supplied by the investigator. Defendant was arrested immediately after the third meeting, in possession of the drugs and the $1300. The remaining money was found in his home.

Defendant testified that Little approached him and offered to give money and drugs if defendant helped him get out of being sent to prison. He suspected that Little was involved in drug transactions. Without notifying his superiors or any other authorities, he went along with Little to conduct an investigation in order to make a case against Little. He admitted receiving the money and drugs from Little but did not intend to keep them for himself. He was going to turn the money and drugs over to his superiors or an investigator but was arrested before he could do so. He was acquitted of the drug offenses. Held:

1. Defendant asserts that the trial court erred by failing to charge clearly and completely on the principles of the law of intent, which was the sole issue in the bribery count, citing cases requiring a sua sponte charge on a sole defense.

Before receiving evidence the trial court gave the jury some general instructions on the law which included that a crime requires the joint operation of action and criminal intent; that no person shall be found guilty of a crime if there was no criminal action or intention; and that a person is not presumed to act with criminal intent which must be found from the words, conduct, demeanor, motive and all other circumstances. The court ascertained that the jury understood the instructions and would abide by them.

In its charge to the jury, the court again gave substantially the same as the foregoing concerning intent, and the elements of the crime of bribery including that any value received by defendant must be "with the purpose of influencing him in the performance of any act related to the functions of his office or employment."

At the conclusion of the charge defense counsel brought to the court's attention that it had not charged on defendant's defense that he was carrying out a legal investigation, a charge that had not been requested. The court gave counsel the opportunity to submit a written charge, or tell the court what he would like to be charged, or to comment on a proposed charge drawn up by the court. Defense counsel did not avail himself of any of these opportunities, saying that he was not prepared to pass on a charge without having time to study it and think it out, and that it was the court's duty to charge on a sole defense.

Thereupon, the trial court gave the following additional charge: "[T]he court may have overlooked giving you instructions with reference to the specific defenses which this defendant has raised in this case and in that connection I charge you the defendant contends that all his acts in connection with the offenses for which he is charged were performed by him in the course of an investigation into illegal activities on the part of ... Little, one of the probationers assigned to him for supervision, and for the purpose of bringing the said ... Little to justice, and were not performed by him with any intent to violate the law by accepting a bribe or coming into unlawful possession of controlled substances or dangerous drugs. These are the contentions of defendant."

Defendant argues that the charge as a whole was not sufficient as it did not give a clear and complete instruction as to the law of intent, citing Glaze v. State, 2 Ga.App. 704, 58 S.E. 1126.

The trial court clearly charged on the issue of defendant's intent, although defense counsel could not or would not at the time inform the court how he wished the issue to be elaborated upon.

Glaze v. State, supra, is inapposite. "There is no substantial merit in the complaint that the judge (in the absence of any request to do so) failed to instruct the jury upon the sole issue raised by the defendant upon the trial, to wit, that he had no intention of committing the crime charged (larceny from the house) ... The court did charge the jury that if the defendant ... did ... take [the property alleged], with intent to steal the same, he would be guilty as charged. This reference to the defendant's intent to steal was sufficient, in the absence of a request for a fuller charge upon that subject. The facts of this case easily distinguish it from Glaze v. State, 2 Ga.App. 704 ..." Evans v. State, 28 Ga.App. 571(2), 112 S.E. 732.

Also distinguishable are the other cases cited by defendant where the error was not in failing to elaborate on a charge given but in the failure to give any charge on the sole defense or controlling issue or making only an insufficient passing reference thereto.

As the court did charge on defendant's sole defense of lack of intent, had he "desired a more specific charge as to any phase of his defense, it should have been made the subject of an appropriate written request." Thomas v. State, 99 Ga.App. 25(5), 27, 107 S.E.2d 687.

Accordingly, under the circumstances that the charge as a whole sufficiently covered the issue of intent, that defendant had not requested a different charge on intent, and after being given a full opportunity to prepare an additional charge his counsel was unable to even advise the court what language he thought should be charged, we find no merit in this assertion.

2. While the jury was deliberating it sent a note to the judge asking for a transcript of the state's cross-examination of defendant. Without consulting defendant or counsel for either side, the judge replied in writing that their request was not available under the law. The defense became aware of this communication before the verdict but did not bring it to the court's attention until sentencing two weeks later and made no motion concerning it. Error is alleged because neither defendant or his counsel was notified of the jury's question before the court replied to it.

Whether to allow a jury to hear testimony replayed (Person v. State, 235 Ga. 814(3), 221 S.E.2d 587), or to rehear evidence (Byrd v. State, 237 Ga. 781(1), 229 S.E.2d 631), is within the discretion of the court. We find no abuse of discretion in the trial court's refusing the jury's request in this case.

Pretermitting whether defendant waived the right to appeal this issue for failure to timely raise or preserve it, we hold as we did in Stewart v. State, 165 Ga.App. 428(2), 300 S.E.2d 331. There the jury indicated through the bailiff that they were deadlocked and the court, without notifying defense counsel, told them through the bailiff to keep on trying. We recognized that a trial court should not communicate with the jury without knowledge of counsel but found no error, saying: "The communication here clearly did not constitute a charge or recharge. [Cits.] ... Nor was the communication a colloquy, a '[m]utual discourse; ... a somewhat formal conference.' [Cits.] Moreover, we do not find the subject communication to be in any manner prejudicial to appellant." Id. at 430, 300 S.E.2d 331.

3. Several enumerations of error pertain to the admission and playing of three tape recordings made of radio transmitted conversations between defendant and Little and the use of transcripts of the recordings made by the state as an aid in following the tapes as they were played.

Some things on the tapes were clearly understandable, others difficult to understand, and some were unintelligible. As the seven requirements of Steve M. Solomon, Inc. v. Edgar, 92 Ga.App. 207(3), 88 S.E.2d 167, for admission of the tapes were met, we find that the trial court did not abuse its discretion in admitting them in evidence and permitting them to be played for the jury. "Where the proper foundation for admission of a taped conversation is laid and portions of the conversation are inaudible, it is within the discretion of the trial court to admit the tape. [Cit.]" Burke v. State, 248 Ga. 124(2), 125, 281 S.E.2d 607.

Because two of the conversations commenced in a building, which apparently prevented intelligible transmissions to be received from the transmitter on Little until they left the building, the trial court refused to permit these unintelligible initial portions of the tapes to be played over defense objection. Defendant argues that the unintelligible portions should have been played as they were relevant to the weight and reliability of the tapes. We find no error in doing this as we agree with the trial...