Mitchell v. State
| Decision Date | 12 May 1977 |
| Docket Number | No. 31847,31847 |
| Court | Georgia Supreme Court |
| Parties | T. F. MITCHELL v. The STATE. |
Donald A. Weissman, Atlanta, for appellant.
M. Randall Peek, Dist. Atty., Decatur, for appellee.
This court granted certiorari to review a decision of the Court of Appeals holding that a party to a telephone conversation commits a criminal act under Code § 26-3001(a) by secretly recording the conversation where the conversation does not come under any exception set out in Code § 26-3006 and no warrant was obtained.
Code § 26-3001(a) reads in pertinent part as follows: "Unlawful eavesdropping and surveillance It shall be unlawful for: (a) any person in a clandestine manner to intentionally overhear, transmit or record, or attempt to overhear, transmit or record the private conversation of another which shall originate in any private place . . ."
In Cross v. State, 128 Ga.App. 837, 198 S.E.2d 338 (1973), the Court of Appeals held that Code § 26-3001 "does not apply to one who is a party to the conversation." Id. at p. 840, 198 S.E.2d at p. 340. In the instant case, however, State v. Guhl (Mitchell), 140 Ga.App. 23, 230 S.E.2d 22 (1976) and its companion cases, the Court of Appeals reinterpreted the Code Section and reached an opposite conclusion, making Mitchell's conduct criminal.
1. Everyone would concede that it is at best unclear under Code § 26-3001(a) whether the General Assembly of Georgia has made the recording of a telephone conversation by one of the parties a crime. Any criminal law should be plain and unambiguous and not dependent upon the current conflicting views of appellate judges. See Grayned v. Rockford, 408 U.S. 104, 109, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1971). It has always been the law that criminal statutes must be strictly construed against the state. McAllister v. State, 122 Ga. 744, 50 S.E. 921 (1905). It is also true that the ". . . legislative intent will prevail over the literal import of the words." Carroll v. Ragsdale, 192 Ga. 118, 15 S.E.2d 210 (1941). The word "record" found in Code § 26-3001(a) must be construed with reference to the other words, "overhear" and "attempt to overhear", and the overall intent of the statute to make "eavesdropping and surveillance" of a conversation a criminal act, i. e., the interception of the conversation by a third party. This is consistent with the caption of the Act which states that the purpose was "providing for the crimes of unlawful eavesdropping or surveillance . . ." with exceptions for certain types of "interception." Ga.Laws 1968, pp. 1249, 1957.
A recent decision of this court construed the statute as Cross did, by stating that it was enacted to prescribe "criminal offenses for eavesdropping, surveillance, and the use of devices to intercept telephone or other private communications." Orkin v. State, 236 Ga. 176, 179-80, 223 S.E.2d 61, 67 (1976). (Emphasis supplied.) The statute implicitly refers to persons who are not parties to the conversation. Examination of Code § 26-3006 lends further support to the conclusion that Code § 26-3001 relates to one who is not a party to the conversation. Code § 26-3006 must necessarily refer to third parties, because it allows "interception, recording and divulging" (emphasis supplied) in two specified instances. This "and" makes plain that this section deals solely with interception and acts following an interception. In legitimizing certain "interceptions," it necessarily relates only to third parties.
We adopt the construction of these statutes stated in Orkin and Cross, and disapprove the construction taken in State v. Mitchell, supra.
It is also contended that the interpretation given Code § 26-3001(a) by the court violates some right of privacy. We disagree. No contention is made that this code section in any way attempts to prohibit the revelation of the content of a telephone conversation by one of the parties to it. We have found no decision in any jurisdiction in the English speaking world that has made such a holding. The reason for our holding is well set out in a federal court opinion involving a defendant who telephoned a plaintiff and by means of wiretapping at defendant's end of the phone recorded the conversation without plaintiff's knowledge or consent. Later the conversation was broadcast over the radio. Considering plaintiff's right of privacy claim, the court held that it had not been violated:
Chaplin v. National Broadcasting Co., 15 F.R.D. 134 (S.D.N.Y.1953). The Supreme Court of the United States has also held that no right of privacy is violated since either party to a telephone conversation may record the conversation and publish it; "The communication itself is not privileged, and one party may not force the other to secrecy merely by using a telephone." Rathbun v. United States, 355 U.S. 107, 110, 78 S.Ct. 161, 163, 2 L.Ed.2d 134 (1957). See also United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971).
In summary, it is our opinion that the General Assembly intended:
(1) Code § 26-3001(a) to prohibit third parties from intercepting in a clandestine manner a private conversation between two or more parties; except under the conditions of
(2) Code § 26-3006, which allows a third party to intercept, record and divulge the conversation, (a) where the parties to the conversation consent, or (b) where the message is a crime or is directly in furtherance of a crime and one party to the conversation consents;
(3) Code § 26-3004 provides another permission for third party interception under specified circumstances and procedures where the interceptor is a law enforcement officer; and
(4) none of these Code sections prohibits the actual parties to the conversation from recording or divulging it.
2. An affirmance in this case would criminalize conduct which, under controlling authorities, was lawful at the time it was done. This is what the Court of Appeals has, in fact done by refusing to apply the doctrine of stare decisis which is particularly important in these circumstances.
The doctrine of stare decisis is usually interpreted to mean that the court should adhere to what it has previously decided and not disturb what is settled. It does not undercut the power of a court to overrule its previous decisions. On the contrary, it is a rule of policy tending to consistency and uniformity of decision and is not inflexible. The reason for the rule is more compelling in cases involving the interpretation of a statute. ...
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