Gilstrap v. State

• Decision Date: 18 June 1982
• Docket Number: 63766,Nos. 63765,s. 63765
• Parties: GILSTRAP v. The STATE. ALLISON v. The STATE.
• Court: Georgia Court of Appeals

Page 495

292 S.E.2d 495

162 Ga.App. 841

GILSTRAP v. The STATE.

ALLISON v. The STATE.

Nos. 63765, 63766.

Court of Appeals of Georgia.

June 18, 1982.

J. Lee Rose, Marietta, for appellant in No. 63765.

Tom Charron, Dist. Atty., Joseph Chambers, Asst. Dist. Atty., Marietta, for appellee in both cases.

J. Robert Sparks, Asst. Dist. Atty., for appellee in No. 63765.

Mark J. Kadish, Atlanta, for appellant in No. 63766.

CARLEY, Judge.

Appellants in these companion cases were jointly indicted and tried for conspiracy to violate Code Ann. § 79A-811(b). The jury returned verdicts of guilty and appellants appeal from the judgments of conviction and sentences entered on the verdicts. Substantially similar enumerations of error have been filed in each case. Accordingly, the two appeals have been consolidated for appellate review and will be considered in this single opinion. The record is voluminous and the facts will be discussed only insofar as they are relevant to the particular legal issue under discussion.

1. Pursuant to Ga.Code Ann. § 26-3004, investigating officers sought and obtained a warrant, subsequently extended, authorizing a wire tap on the telephone located at the "headquarters" of the suspected conspiracy. Appellants' motion to suppress the taped evidence obtained from the wire tap was denied. On appeal, appellants enumerate as error the denial of the motion to suppress this evidence, asserting that the applications submitted in support of wire tap warrant were fatally defective.

"Wiretapping and surveillance are the subjects of federal and state law and both must be complied with where applicable." Orkin v. State, 236 Ga. 176, 179, 223 S.E.2d 61 (1976). In a convoluted series of arguments appellants assert that there was insufficient compliance with the requirements of 18 U.S.C.A. § 2518(1)(c) that "[e]ach application for an order authorizing or approving the interception of a wire or oral communication ... shall include the following information: ... a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous ..." We have studied the applications and find that, on their face, they are in total and sufficient compliance with 18 U.S.C.A. § 2518(1)(c). See State v. Bilbo, 240 Ga. 601, 242 S.E.2d 21 (1978).

Appellants contend that the facially valid applications contain material misrepresentations with regard to "other investigative procedures". The evidence adduced on the motion to suppress amply demonstrates that the applications contained no misrepresentations in this regard. See generally Lee v. State, 239 Ga. 769, 773(3), 238 S.E.2d 852 (1977). Only one of appellants' assertions requires elaboration. It appears that some time after the 20-day extension authorized by Code Ann. § 26-3004(e) had been granted, a confidential informant was found who introduced an undercover agent to certain members of the alleged conspiracy for the purpose of purchasing drugs. It appears that this post-warrant development of an investigative source "other" than the wire tap was made known to the issuing magistrate who then independently made the determination that, under the existing circumstances, continuing the tap was necessary for a completely successful investigation of the case. Accordingly, the tapping was allowed to continue for the full 20-day extension which had previously been authorized. On these facts we find no violation of 18 U.S.C.A. § 2518(1)(c). See U. S. v. Pacheco, 489 F.2d 554, 564-565(16, 17) (5th Cir. 1974).

Appellants also attack the applications on the basis of an insufficient compliance with 18 U.S.C.A. § 2518(1)(e). That statute requires that the application contain "a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application ..." "The statute does not require a fully detailed statement about the contents of the interception ..." U. S. v. Kilgore, 518 F.2d 496, 500 (5th Cir. 1975). Appellants point to no evidence which would show that the applicant had more knowledge concerning the previous wire taps application than was disclosed by him in the applications. Under such circumstances, we must assume that the disclosure which was made was a "full and complete statement of the facts concerning all previous applications known" to the applicant. Cf. Granese v. State, 232 Ga. 193, 198(3c), 206 S.E.2d 26 (1974).

For the reasons discussed above, it was not error to deny appellants' motion to suppress the wire tap evidence because of insufficient compliance with the requirements of 18 U.S.C.A. § 2518(1)(c) and (e).

2. Appellants also assert an erroneous denial of their motion to suppress based upon the state's insufficient compliance with 18 U.S.C.A. § 2518(8)(a). That statute provides in relevant part: "Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his direction ... The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire or oral communication or evidence derived therefrom ..." Contrary to appellants' apparent assertions, "where a single order [is] extended, the tapes [do] not have to be sealed until the end of the last extension. Where the intercept is of the same premises and involves substantially the same persons, an extension under these circumstances requires sealing only at the conclusion of the whole surveillance. [Cits.]" U. S. v. Scafidi, 564 F.2d 633, 641 (2nd Cir. 1977). The evidence with regard to the custody of the tapes prior to their being sealed after the end of the extension was sufficient to demonstrate with reasonable certainty that no deliberate tampering with or accidental alteration to the tapes had resulted during the presealing period. See generally Alfred v. State, 157 Ga.App. 221, 276 S.E.2d 892 (1981).

The statute requires that the tapes be sealed "[i]mmediately upon the expiration of the period of the order, or extension thereof ..." In the instant case, there was apparently a two day delay between the expiration of the extension of the wire tap order and the tapes being sealed by the judge. However, in spite of the two day delay, on the record before us "[t]here was no showing of prejudice to [appellants] in the delay. The purpose of [18 U.S.C.A. § 2518(8)(a) ] is to safeguard the recordings from editing or alteration. There was no showing that the integrity of the intercepts was in any way violated." U. S. v. Sklaroff, 506 F.2d 837, 840 (5th Cir. 1975). It appears that the two day delay in the instant case was occasioned, at least in part, by "administrative delay". See U. S. v. Falcone, 505 F.2d 478, 483-484 (3rd Cir. 1974). Accordingly, the two day delay in sealing the tapes does not constitute a violation of 18 U.S.C.A. § 2518(8)(a) requiring the suppression of those tapes.

3. The trial court did not err in refusing to allow appellants' counsel to withdraw a prior stipulation that the court reporter would not be required to transcribe the wire tap tapes while they were being played for the jury. See State v. Knowles, 247 Ga. 218, 274 S.E.2d 468 (1981).

4. A review of the record demonstrates that the trial court did not abuse its discretion in allowing certain witnesses for the state to remain in the courtroom after appellants had invoked the rule of sequestration. See generally Ruffin v. State, 243 Ga. 95, 96(2), 252 S.E.2d 472 (1979); Hardy v. State, 245 Ga. 272, 275(1), 264 S.E.2d 209 (1980).

5. Over appellant Allison's objection, the state was allowed to introduce evidence of his involvement in a drug smuggling scheme some two years prior to the drug smuggling conspiracy of which he was charged with being a member in the instant case. The trial court instructed the jury that this evidence was being admitted solely for the limited purpose of showing plan, scheme, motive or bent of mind. The admission of this evidence is enumerated as error.

"Drug cases are not different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct." State v. Johnson, 246 Ga. 654, 655, 272 S.E.2d 321 (1980). A review of the testimony concerning appellant Allison's prior drug smuggling activities demonstrates that it comes within the above stated exception to the "other crimes" rule. The relevancy of this evidence was not destroyed by the passage of two years. McNeal v. State, 228 Ga. 633, 637, 187 S.E.2d 271 (1972). Accordingly, this enumeration of error is without merit.

6. Appellant Allison urges that it was error to fail to suppress the voice identification testimony of two officers. The contention is that the testimony was based upon the officers' interview with Allison prior to which he was not advised of his Miranda rights and during which he was induced to confess by being offered "the slightest hope of benefit." Code Ann. § 38-411.

A Jackson-Denno hearing was held and the evidence adduced at that hearing authorized the trial court's conclusion that the officers had in fact advised Allison of his Miranda rights before the interview was conducted. See Dougherty v. State, 145 Ga.App. 718, 719(2), 244 S.E.2d 638 (1978). Assuming without deciding that the officers attempted to induce...