Kelley v. State

• Decision Date: 12 October 1983
• Docket Number: No. 67041,67041
• Citation: 168 Ga.App. 911,311 S.E.2d 180
• Parties: KELLEY v. The STATE.
• Court: Georgia Court of Appeals

Page 180

311 S.E.2d 180

168 Ga.App. 911

KELLEY v. The STATE.

No. 67041.

Court of Appeals of Georgia.

Oct. 12, 1983.

Rehearing Denied Nov. 18, 1983.

Certiorari Denied Jan. 6, 1984.

Preston B. Lewis, Jr., Preston B. Lewis, III, Macon, for appellant.

Sam B. Sibley, Jr., Dist. Atty., Charles R. Sheppard, Asst. Dist. Atty., for appellee.

BIRDSONG, Judge.

Mickie (Mickey, Mike) Kelley was convicted of two counts of violation of the Georgia Controlled Substances Act, sale of cocaine. He enumerates seven errors below. Held:

1. Kelley contends the trial court blatantly erred in denying his motion for continuance, in view of the "extraordinary circumstances" then confronting the appellant. It appears that appellant and three other members of his family were indicted at the same term of the Burke County Grand Jury on drug charges. Appellant's brother Charleston Kelley had, a few weeks before appellant's trial, been tried and convicted in Burke County and sentenced to 120 years incarceration and an $80,000 fine. There was relatively extensive newspaper coverage of Charleston Kelley's trial and conviction. Appellant also contends the array of traverse jurors summoned for service in appellant's trial was composed substantially of the very same jurors comprising the array from which a jury had been selected to try the brother Charleston Kelley. Appellant submits that the extensive voir dire conducted prior to the brother's trial aroused such hostility that continued questioning along similar lines at appellant's trial "would likely have prejudiced" appellant's case.

We find no error. There is no authority or logic for the proposition that a defendant may fail to conduct a proper voir dire because he imagines he will irritate prospective jurors, so that no prejudice can appear in the record, and then subsequently complain of the prejudice that "would likely have" resulted if he had conducted the voir dire. There is no evidence of jury bias or prejudice in the record, and no evidence that appellant attempted to discover any. Newspaper coverage of the trial and conviction of Charleston Kelley did little more than briefly mention that appellant Mike Kelley, and certain named others, were also charged as a result of the same investigation. The "principles of justice" (OCGA § 17-8-33) (Code Ann. § 27-2002)) do not include the mere suggestion that members of a family, or other defendants, charged with similar or related crimes cannot receive a fair trial unless they are tried at separate terms, by jurors who have never been questioned as to their potential prejudice, and unless there is no newspaper or other public mention of the defendant's having been charged with crimes similar to or related to those of which a family member has been convicted. We find no actual prejudice or harm in this case in the adherence to the law that a defendant be tried at the same term of indictment (OCGA § 17-8-33 (Code Ann. § 27-2002); Collier v. State, 244 Ga. 553(1), 261 S.E.2d 364), and no abuse of discretion in the trial court's denial of Mike Kelley's motion for continuance. Young v. State, 237 Ga. 852, 855, 230 S.E.2d 287.

2. The appellant was not entitled to a mistrial on grounds that the state and witnesses made references to the fact that a part of the chain of custody (which was generally challenged by appellant) could not be directly proved because GBI Agent Frank Ellerbe "unfortunately is not alive to testify," and particularly at one point stated on direct examination that "Agent Frank Ellerbe was murdered last Wednesday in McIntosh County." No implication or suggestion was made that appellant was in any way connected with Agent Frank Ellerbe's death. In any case, the trial court rebuked the district attorney and witness and gave the jury proper curative instructions that "[Y]ou are not to infer anything hurtful to the defendant by [the response that Agent Ellerbe had been murdered]. The defendant in no way was involved in the death of Agent Ellerbe; and you should not infer from anything that has been said that he was involved in that death. The purpose of the testimony was to allow the jury to know why Agent Ellerbe is not here [to testify to some part of the chain of custody]...." See OCGA § 17-8-75 (Code Ann. § 81-1009).

3. We find no error in the trial court's refusal or failure to make a preliminary determination as to the admissibility of certain taped conversations and transcripts of taped conversations, nor the sending out of the transcripts with the jury.

The appellant on appeal has asserted that the taped conversations were so obscure or hard to understand, that it was fatal error to admit the tapes and to permit the transcripts to be admitted as the only intelligible evidence and thus allow the transcripts to corroborate the poor aural rendition played at trial. However, all three judges on this panel have listened to the tapes and are in agreement that the tapes are not of sufficient clarity and audibility to be used as evidence without the transcripts.

Two or three different conversations were taped, along with unrelated material, on portions of a small concealed NAGRA device, and were then extracted from the entire tape by transfer to another cassette and transcribed for the purpose of clarifying some of the colloquial and sub-culture talk. The state's witnesses fully described the taping and transcription procedure and verified the authenticity of the transcripts. Moreover, the undercover agent who participated in the taped conversations, corroborated the taped and transcribed evidence and verified its authenticity. The appellant made no allegation or suggestion to the trial court that the tapes and transcripts were not legitimate nor correctly made and for that reason not admissible; nor does he make any now. The appellant's complaint is that the trial court's failure to hold a preliminary hearing as to the admissibility of the evidence was error according to Lynch v. State, 143 Ga.App. 188(1), 238 S.E.2d 122, and was fatal error inasmuch as the inaudibility and insufficient clarity of the tapes rendered them inadmissible. This complaint is without merit.

In Mayor etc. of Savannah v. Palmerio, 135 Ga.App. 147, 151, 217 S.E.2d 430, which was cited in Lynch, supra, for authority that a preliminary hearing as to admissibility of tapes must be held upon request, we held that on request such a hearing should be conducted and that certain requisites of admissibility must be found. We furthermore noted with approval the requisites set forth by the Alabama appellate courts, that "(2) If the recording is ... inaudible, its admissibility should be questioned. (3) If the material portions are inaudible, the recording should be rejected if it is the only evidence offered as to the statement. (4) If the parties present when the recording was made testify to the statements made, the recording even though inaudible in parts, should be admitted as corroboration of the witnesses' testimony." (Emphasis supplied.) See esp., Green v. State, 250 Ga. 610, 611, 299 S.E.2d 544....