Geiger v. State, No. 47900

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Lewis R. Slaton, Dist. Atty., James H. Mobley, Jr., Richard E. Hicks, Carter Goode, Morris H. Rosenberg; CLARK; BELL, C.J., HALL and EBERHARDT, P. JJ., and STOLZ; EVANS; After conviction of the defendant in the case sub judice
• Citation: 129 Ga.App. 488,199 S.E.2d 861
• Parties: Hugh S. GEIGER, Jr. v. The STATE
• Decision Date: 11 July 1973
• Docket Number: Nos. 1,3,2,No. 47900

Page 861

199 S.E.2d 861 129 Ga.App. 488 Hugh S. GEIGER, Jr.
v.
The STATE. No. 47900. Court of Appeals of Georgia, Division Nos. 1, 2, 3. July 11, 1973.
Rehearing Denied July 30, 1973.

[129 Ga.App. 503]

Page 862

Jess H. Watson, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., James H. Mobley, Jr., Richard E. Hicks, Carter Goode, Morris H. Rosenberg, J. Melvin England, Atlanta, for appellee.

Syllabus Opinion by the Court

[129 Ga.App. 488] CLARK, Judge.

This record is a record of a record. Comprising a total of 3,411 pages, it is considered to be the lengthiest in the 67 years of our court's existence. Of these, 2,811 pages constitute the evidence transcript of a three-weeks trial. The nature of the [129 Ga.App. 489] enumerations of error require us to mention these details.

The appellant being a physician whose medical license was revoked as a result of the events reported herein and for which he is now serving a fifteen-year sentence, this case represents another heart-break chapter in the sad, sordid story of today's drug culture age. The version presented by the prosecution is diametrically opposite to that of the defense. 'Mephistophelean machinations' would be an appropriate description of the case as presented by the State as contrasted with a 'dedicated doctor' victimized by a purported frame-up scheme as contended by defendant.

The state's evidence charged accused with the exchange of drugs and prescriptions for drugs in return for sexual favors, with prevailing upon a co-defendant female who was not tried simultaneously with him to forge checks so as to obtain desired merchandise items for drugs, and with other violations of the Uniform Narcotics Act and of the Georgia Drug Abuse Control Act such as selling drugs outright, writing prescriptions for such drugs without examinations or taking of medical histories, and by dispensing such drugs without maintaining required records. The state's case focused on the activity of four individuals who, as patients, had obtained various types and quantities of drugs through the means described.

The defense was manifold in nature. The accused sought to show that he was the victim of a frame-up conspiracy by a husband and wife (Jack and Janet Mott) who had filed a civil suit against him for $500,000 alleging the doctor had caused the wife to become a drug addict. Additionally it was sought to show the accused to be the victim of a police plot with the use of planted evidence. The characters of the four principal witnesses were attacked by showing one to be a prostitute and the other three to have been convicted felons with hopes of receiving favored treatment through their testimony against the accused.

During the accused's unsworn statement which took two days for presentation and covered 727 pages of the transcript, the defendant reviewed his personal history as a country doctor's son who sought to follow his father's selfless example of service to everyone. During this unsworn statement the accused testified as to the manner in which he had risen from dire poverty, proceeded to obtain his education overcoming by his own efforts his lack of funds. He related his World War II hazards as a navigator of a B-17 Flying Fortress which was shot down on its [129 Ga.App. 490] third mission when he parachuted to safety but was captured by the Germans. He described the manner in which he had begun as a penniless practitioner and the long hours and arduous labors whereby he had brought his practice to the point that he was grossing more than $100,000 annually. Through his pastor in the church where he had taught Sunday School he introduced proof of his

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good character. During this presentation he sought to explain each circumstance so that what appeared to be incriminating events were in fact presented by him as confirmations of his innocence.

The case involved ten indictments with a total of 34 counts. He received acquittals on two indictments and was found not guilty on two counts of another indictment but was convicted of the remaining counts and given sentences totaling 15 years.

Additional facts will be discussed in the body of this opinion as we deal with the twenty-four enumerations of error. In doing so we proceed chronologically rather than in numerical order.

1. Motion to suppress (Enumeration No. 2). The initial development which led to the implication of the accused doctor was the appearance on January 14, 1970, in the office of the District Attorney of Jack Mott with his personal attorney. The result of this visit was a telephoned instruction to the East Point police to arrest the wife, Janet Mott, concerning whom a description was given and who was then expected to be at the doctor's office. She was apprehended in the office parking lot. Upon identification being requested she gave the name 'Carolyn Cooper' and referred the officers to Dr. Geiger for confirmation of identity. Dr. Geiger addressed her by her proper name, Janet Mott. Somehow she was left alone for a brief interval in the doctor's private office. This was an element pointed out by Dr. Geiger as confirming possibility of his being victimized in a police plot because a pistol was later found in his desk which he voluntarily delivered to the police with some discovered credit cards. The consequence was a search warrant obtained upon an affidavit made by the investigator attached to the District Attorney's office. This affidavit was made at 3 o'clock p.m. on January 16, 1970. The affidavit stated the property to be seized at the doctor's office address was a Georgia driver's license, No. 0642323, issued to Carolyn L. Cooper and a Realistic tape recorder, Model H901, it being stated the property was tangible evidence of the commission of the crimes of forgery and receiving stolen property. The probable cause read as follows: 'That on [129 Ga.App. 491] January 14, 1970, Janet Mott W/F fraudulently obtained a Browning automatic pictol, Serial No. 114202, valued at $94.50 from Berryman Sports Center, Main Street, East Point, Fulton (County), Georgia by forging the name of Carolyn Cooper upon a check and using said driver's license as identification. Said pistol and other identification bearing the name of Carolyn Cooper being recovered in the office described above at the time of her arrest by East Point detectives on January 15, 1970, at the above described office known as 1618 Thompson Avenue, East Point, Fulton (County), Georgia for the offense of forgery. Also, Jack Mott, husband of Janet Mott, has stated that he has recently seen a tape recorder in the possession of his wife, that was purchased by his wife by forging the signature of another. Jack Mott has presented a piece of paper bearing a list of items to be obtained by Janet Mott by using the name of another in exchange for dangerous drugs. The doctor, Hugh Geiger, Jr. has given him a prescription for thirty (30) Bephetamine tablets which were to be sold by Jack Mott. That Jack Mott has seen dangerous drugs in the possession of his wife, Janet Mott, that was given to her by Dr. Hugh Geiger, Jr. in exchange for items obtained by offense of forgeries.' It should be noted this affidavit was executed in the presence of a Superior Court Judge, Hon. Charles A. Wofford, who issued the search warrant. The search of the nineteen rooms constituting the office premises began shortly thereafter. This search consumed six hours by a team of six law enforcement officers. One of six attorneys who have over a period of time represented the accused was present. Immediately following the completion of the search an arrest warrant was issued for the accused.

A motion to suppress the seized evidence was filed and subsequently amended. This

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was heard before Hon. Elmo Holt on January 26, 1970, with defendant represented by three of his attorneys, one of whom was retained only for this hearing. The transcript of this extensive hearing totals 121 pages. Much of it dealt with alleged pornographic photographs. Judge Holt ruled the search to have been lawful and admitted 28 of the photographs and suppressed photographs Numbers 29 through 60, inclusive. Another extended motion to suppress was filed April 9, 1971, which covers pages 61 through 124 of the record in which there is a sentence by sentence analysis of the district attorney's investigator's affidavit and extensive legal argument to support the contention that the search was illegal and without [129 Ga.App. 492] probable cause. It included a transcript of the January 26, 1970, hearing with a prayer to vacate the previous order. This was filed by another attorney, R. John Genins, who handled the actual trial. It was argued on April 16, 1971, before Hon. Osgood O. Williams, who thereafter presided at the trial. Judge Williams ruled the original order by Judge Holt to be res judicata. It is noted that no attempt was made to introduce any photographs at the trial but other items including a Colt pistol taken from a large office safe were introduced.

There were some factual inaccuracies in the affidavit. The fact that there is an immaterial factual inaccuracy is not fatal to an otherwise adequate showing of probable cause. Summerville v. State, 226 Ga. 854, 858, 178 S.E.2d 162; Lee v. State, 124 Ga.App. 397, 398, 184 S.E.2d 41. The proper test is whether the factual inaccuracy destroys the otherwise adequate showing of probable cause. The only inaccurate portion of this warrant relates to when the gun and identification cards were found at the doctor's office which is not sufficient cause to warrant a declaration of legal invalidity.

It should be remembered that considerably less is required to show probable cause for issuance of a search warrant than is required to prove guilt. Draper v. U.S., 358 U.S. 307, 311, 79 S.Ct. 329, 3 L.Ed.2d 327. The most recent United States Supreme Court case, U.S. v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 793, illustrates the...