Gonzalez v. State

• Decision Date: 24 June 1985
• Docket Number: No. 69884,69884
• Citation: 333 S.E.2d 132,175 Ga.App. 217
• Parties: GONZALEZ v. The STATE.
• Court: Georgia Court of Appeals

Page 132

333 S.E.2d 132

175 Ga.App. 217

GONZALEZ v. The STATE.

No. 69884.

Court of Appeals of Georgia.

June 24, 1985.

Certiorari Dismissed Sept. 5, 1985.

Constance M. Boughan, Marietta, for appellant.

Lewis R. Slayton, Dist. Atty., H. Allen Moye, Asst. Dist. Atty., for appellee.

SOGNIER, Judge.

Appellant was convicted of conspiracy to traffic in cocaine and marijuana.

1. Appellant contends the trial court erred by allowing an assistant district attorney to prosecute the case and also appear as a witness in violation of the Rule of Sequestration and the Canons of Ethics of the State Bar of Georgia.

At a hearing on a motion to suppress certain tape recordings, logs, orders and other evidence relating to wiretaps, it became apparent that Moye, the chief prosecuting attorney, would be a witness for the State regarding the chain of custody of the evidence and actions taken in obtaining court orders authorizing the wiretaps. Counsel for appellant joined counsel for other codefendants in a motion to disqualify Moye from participating further in the hearing. This motion was denied, and counsel for one of the codefendants made a motion that the rule of sequestration be invoked. The trial judge replied: "I have ruled." As the trial court had ruled only on the motion to disqualify Moye, no ruling was made on the motion to invoke the rule of sequestration. A ruling must be obtained for this court to review an alleged error. Neal v. State, 161 Ga.App. 77(1), 289 S.E.2d 293 (1982). Assuming the judge's remark constituted denial of the motion to invoke the rule of sequestration, appellant's counsel did not join in that motion. Since any ruling on the motion did not pertain to appellant, we can discern no harm to him resulting from denial of the motion made by a different attorney for a different defendant. Hollis v. State, 137 Ga.App. 298, 223 S.E.2d 491 (1976).

As to disqualification of Moye as prosecuting attorney, we note initially that Moye did not testify in the State's case in chief, but only at the hearing on the motion to suppress. Secondly, Moye's testimony related to custody of tapes and other materials relating to six wiretaps, and his actions in obtaining court orders authorizing the wiretaps. Directory Rule 5-102, Canons of Ethics, Code of Professional Responsibility, Rules And Regulations For The Organization And Government Of The State Bar Of Georgia (241 Ga. 692) provides: "When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client." (Emphasis supplied.)

EC 7-11 and EC 7-13 of the same Rules and Regulations (241 Ga. 700) point out that the responsibility of a lawyer may vary according to the nature of a particular proceeding, such as service as a public prosecutor, and that the responsibility of a public prosecutor differs from that of the usual advocate.

In the instant case it is clear that Moye's testimony as a witness related strictly to formal matters, i.e., custody of certain items and applying for investigative warrants authorizing wiretaps. Hence, the trial court's denial of the motion to disqualify Moye was not error. See Parker v. Wellons, 43 Ga.App. 721, 723-724(1), 160 S.E. 109 (1931).

2. Appellant contends the trial court erred by allowing State witnesses to testify because their oral, written or recorded prior statements, police and investigative reports, and stenographic translations of conversations recorded by the prosecuting attorney's office, whether relevant or not, had not been furnished to appellant pursuant to his discovery motion.

There is no requirement that such items be furnished to a defendant in a criminal action. Jarrell v. State, 234 Ga. 410, 420(4), 216 S.E.2d 258 (1975). See also Hartley v. State, 159 Ga.App. 157, 158-159(2), 282 S.E.2d 684 (1981). All items required to be furnished appellant by statute, such as copies of appellant's oral or written statements and scientific reports, were furnished appellant prior to trial. Hence, this enumeration of error is without merit.

3. Appellant contends error in denial of his motion to suppress evidence obtained through wiretaps, alleging numerous errors relating to the investigative warrants authorizing the wiretaps and the manner in which the wiretaps were conducted. Such errors will be treated separately in the following subparagraphs.

a. Appellant contends there was an unlawful delegation of authority by the district attorney to other members of his office to obtain authorization for wiretaps. This contention is not supported by the transcript. The district attorney testified that he personally authorized each application for authority to conduct electronic surveillance. This court will not consider factual representations in a brief which are not supported in the record. Moore v. State, 174 Ga.App. 460, 330 S.E.2d 397 (1985). The same rule is applicable to appellant's contention regarding the State's failure to establish a chain of custody. Appellant's argument is based on his contention that the prosecuting attorney's testimony was allowed improperly, and we have decided that issue adversely to appellant in Division 1.

b. Appellant contends that in three of the six wiretaps involved in this case Southern Bell Telephone Company provided a leased line and wires for a listening device at the request of an Atlanta police officer prior to a court order authorizing such surveillance. In connection with this contention appellant also contends that in two of these instances the electronic surveillance actually commenced prior to the time authorized by the investigative warrant. Appellant argues that such actions make a wiretap on appellant's telephone and a wiretap on a codefendant's telephone void ab initio, and since information from the illegal taps resulted in additional evidence leading to appellant's arrest and conviction, it should have been suppressed.

The Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510, et seq., set forth procedures whereby federal authorities could obtain authorization for wire taps, and provided further for concurrent State regulation of wiretaps subject, at the minimum, to the requirements of the federal statute. Georgia enacted such a statute, OCGA § 16-11-64, and the wiretaps in the instant case were conducted pursuant to that statute. Both 18 U.S.C. § 2511(2)(a)(ii) and OCGA § 16-11-64(d) provide that communication carriers, their officers, employees and agents are authorized to provide facilities or technical assistance to persons authorized by warrant to intercept a wire communication. Although the testimony at the motion hearing in this case showed clearly that Southern Bell started installing a line for electronic surveillance at the request of a police lieutenant three days before a warrant authorizing such surveillance was obtained, the installation was not complete until the date the warrant issued. Further, no device capable of intercepting wire communications was placed on the line by Southern Bell.

The intent of the legislature in passing the statute on eavesdropping unless authorized by a court order was a general prohibition against an invasion of privacy. Birge v. State, 142 Ga.App. 735, 737(2), 236 S.E.2d 906 (1977), reversed on other grounds, 240 Ga. 501, 241 S.E.2d 213. See also State v. Guhl, 140 Ga.App. 23, 28(2), 230 S.E.2d 22 (1976). Our Criminal Code (OCGA § 16-11-62) makes it an unlawful invasion of privacy for any person in a clandestine manner to intentionally record the private conversation of another, Guhl, supra, and Southern Bell did not record any conversations or make any attempt to do so. Thus, we find any error in Southern Bell's actions harmless, as no eavesdropping or recording of wire communications was conducted without a warrant as a result of its action.

c. Appellant contends it was error to deny his motion to suppress because the police started their wiretap surveillance and recording of appellant's telephone conversations, as well as that of a codefendant, prior to the time authorized in the warrants for such surveillance. While the record shows that the police started their surveillance after the warrant issued but before the time specified in the warrant, there was no testimony or other evidence relating to those intercepted calls introduced into evidence by the State. The overruling of a motion to suppress evidence becomes moot when such evidence is not introduced at trial. Gainous v. State, 171 Ga.App. 157, 158(2), 319 S.E.2d 62 (1984).

Appellant also contends that information from the unauthorized taps of his and a codefendant's telephone was used to obtain additional evidence which resulted in appellant's arrest and conviction. Appellant has not referred us to anything in the record to support this contention, and this court cannot consider factual representations in a brief which are unsupported by the record. Moore, supra.

d. Appellant contends the guidelines set forth in OCGA § 16-11-64 and 18 U.S.C. § 2511 for minimization of electronic surveillance and publication of the information obtained were not followed, because the surveillance was not terminated when criminal activity was first detected, and conversations in Spanish were recorded and translated in their entirety.

The order authorizing electronic surveillance of appellant's telephone provided specifically that since the offenses were of a continuing nature surveillance would not cease upon interception of the first crime-related conversation but would continue during the entire period of surveillance authorized; the order authorizing an extension of the surveillance contained the same provision. "An issue of length of time to continue a wiretap addresses itself to the sound discretion of the trial court...