Morrow v. State

• Decision Date: 05 October 1978
• Docket Number: No. 56234,56234
• Citation: 249 S.E.2d 110,147 Ga.App. 395
• Court: Georgia Court of Appeals
• Parties: MORROW et al. v. The STATE.

Page 110

249 S.E.2d 110

147 Ga.App. 395

MORROW et al. v. The STATE.

No. 56234.

Court of Appeals of Georgia.

Argued July 11, 1978.

Decided Sept. 12, 1978.

Rehearing Denied Oct. 5, 1978.

Herbert Shafer, Atlanta, Wesley R. Asinof, Fayetteville, for appellants.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, H. Allen Moye, Asst. Dist. Attys., for appellee.

QUILLIAN, Presiding Judge.

Dan C. Morrow and James Bert Williams were indicted in Fulton County for committing the offense of "Felony (Communicating Gambling Information)" on December 20, 1975. Defendant Williams was also indicted in Walton County for related offenses of "Commercial Gambling" for the dates of December 1 through December 15, 1975. Williams entered a plea of guilty to the Walton County charges but now appeals his conviction of the Fulton County charge. Held :

1. Counsel for defendant Williams, like so many other appellate counsel, has not complied with Rule 18(c)(1) of this court (Code Ann. § 24-3618(c)(1)) which provides: "Sequence of argument (in appellate briefs). The sequence of argument or arguments in the briefs shall follow generally the order of the enumeration of errors, and shall be numbered correspondingly."

Defendant enumerates nine errors but has only six divisions of argument in Part III of his brief. Further, the six divisions do not correspond to the enumerated errors, nor do the headnotes of the argument divisions correspond to the numbered enumerated errors.

This deficiency is not unimportant, for Rule 18(c)(2) provides that any enumerated error which is not supported in the brief by citation of authority or argument shall be deemed to have been abandoned. It is not the duty of this court to search through this extensive (approximately 90 pages) but unpaginated brief to ascertain whether or not each and every enumerated error is argued or abandoned.

We numbered the defendant's brief for our own use. We have received a letter from defendant's counsel directing our attention to an error on "page 33" of his brief. Examination of pages 30 through 36 show no such error.

2. The first enumerated error contends it was error to deny the motion to suppress the wiretaps in Walton and Fulton Counties. However, Division 1 of Part III of the brief argues enumerated error 2 only. The first enumerated error cannot be found specifically argued in any division but inferentially could be based upon all the enumerated errors. Thus, we will not treat it as abandoned but will consider the motions to suppress as being based only upon those errors enumerated in the brief. However, we must first determine the merit of the remaining enumerated errors.

3. Defendant alleges "(t)he wiretap in Fulton County was spawned by, and the tainted fruit of the prior electronic surveillance in Walton County, which surveillance was illegal in its inception and execution . . ."

It is evident that the Walton County wiretap provided the basis for issuance of the investigative warrant for the subsequent Fulton County wiretap, but we find no illegal taint to the fruit of the Walton wiretap. It is alleged that the "surveillance was illegal in its inception and execution . . ." We shall consider first the legality of the inception of the wiretap. The application for the investigatory warrant contains the requisites of Code Ann. § 26-3004(c) (CCG § 26-3004(c); Ga.L.1968, pp. 1249, 1328; 1972, pp. 615, 952, 953) and 18 U.S.C. § 2518(1). The affidavit, based upon the information and participation of an informant is a model of excellence. The description of the premises to be investigated was correctly and fully described. Jones v. State, 126 Ga.App. 841, 842, 192 S.E.2d 171. The reason affiant concluded the confidential informant was reliable was spread upon the record. Grebe v. State, 125 Ga.App. 873, 875, 189 S.E.2d 698. The manner in which the informer obtained his information was detailed and explicit. Sams v. State, 121 Ga.App. 46, 172 S.E.2d 473. The dates upon which the informant's information was obtained were entered to show it was current not stale. Bell v. State, 128 Ga.App. 426, 427, 196 S.E.2d 894). Further, these facts were then corroborated by observation of the premises and listening to the informant place bets with the suspects on the telephone. Register v. State, 124 Ga.App. 136, 139, 183 S.E.2d 68. Probable cause for issuance of the investigative warrant was clearly established. Accordingly, there is not the slightest taint to the legality of the inception of the Walton wiretap.

We turn now to the allegation that the "execution" of the wiretap rendered it illegal. Defendant contends the court "authorized an obtrusive intrusion for an impermissible period of time sans any judicial supervision . . ." The warrant authorized a period of 20 days for the wiretap. Code Ann. § 26-3004(e), supra, permits periods of 20 days plus renewals for an additional 20-day period "for good cause shown." The affiant and the petitioner, the district attorney for that circuit, stated specific reasons for the "extent and scope" of the investigatory warrant. The petitioner wanted to determine the "total involvement" of the person investigated, and whether he was only one in a "hierarchy" of a gambling enterprise, and because gambling offenses were of a "continuing nature" they desired to continue the wiretap throughout the entire period of 20 days and not discontinue the tap upon interception of one or more calls indicating gambling activity. An issue of length of time to continue a wiretap addresses itself to the sound discretion of the trial court and absent abuse of that discretion an appellate court will not interfere. See United States v. Daly, 535 F.2d 434, 441 (8th Cir. 1976). We find no abuse of discretion in the issuance of the investigative warrant for a period of 20 days.

Defendant argues that the trial court failed to exercise "judicial supervision." He does not articulate in this division of argument, addressed to enumerated error 2, as to what the trial court failed to do, or for that matter has not directed our attention to any statutory or decisional law that requires "judicial supervision" During the period of the wiretap. We find no requirement for the court to exercise personal supervision over the execution of the wiretap. See United States v. Daly, 535 F.2d 434, supra, 442. He does have authority to require "reports to be made . . . showing what progress has been made toward achievement of the authorized objective and the need for continued interception." 18 U.S.C. § 2518(6). Whether or not these reports are required and the sufficiency of any report is discretionary with the trial court and may be dispensed with entirely. United States v. Falcone, 364 F.Supp. 877, 888 (D.C.N.J.1973), affd. 500 F.2d 1401; United States v. Iannelli, 477 F.2d 999, 1002 (3d Cir. 1973), affd. 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616).

Defendant could refer to the alleged lack of judicial supervision of the trial court over the tapes and the authorization papers After the wiretap terminated. However, any alleged deficiency in that regard would have no probative value in determination of the sufficiency of probable cause for the Fulton County wiretap because the information from the Walton County wiretap was released by the Walton County judge on December 11, 1975, During the Walton wiretap and could not possibly have contaminated the Fulton County wiretap where the alleged violation occurred After the termination of the Walton wiretap on December 15, 1975. This enumeration is without merit.

4. Enumerated error 3 alleges the "post-tap secrecy provisions of § 26-3004 Ga.Code Annotated and § 2518 Title 18 U.S.Code and the right of privacy secured to the Defendant under the 4th and 14th Amendments to the Constitution of the United States were flouted and denigrated during the Walton County tap."

This allegation is addressed in Division 2 of defendant's brief. As stated above, any alleged violations of law regarding the Walton County tap, occurring After termination of the wiretap has no effect upon the authorization of the Fulton County wiretap which was authorized During the Walton County wiretap. Neither could such alleged violations have any probative value in the Fulton County trial because those documents were not used in the trial of this case. Those alleged violations have relevance only to the Walton County trial of the defendant.

Defendant argues that it was improper "to disclose the evidence gathered in Walton County to the Fulton County Solicitor and his assistants." We do not agree. Title 18 U.S.C. § 2517 specifically authorizes any investigative or law enforcement officer to "disclose such contents to another investigative officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure." The release of the information by Walton County authorities to Fulton County authorities was authorized by court order (see Code Ann. § 26-3004(h), supra) and was utilized to authorize the Fulton County wiretap. We do not read the Georgia statutes as countermanding the specific authorization of the U.S. Congress. This enumeration is meritless.

5. The fourth enumerated error rephrases substantially the same error as the third enumeration and is controlled adversely to the defendant by our holding in Division 4 above.

6. Defendant argues that there "was not special need or antecedent compelling justification" for the Fulton County wiretap. In essence, defendant contests the motive and reasons stated by the Fulton County authorities to secure issuance of the investigative warrant. Defendant uses a "shotgun" approach in this enumeration. He contends there was "no necessity" for this wiretap, law enforcement officials had sufficient evidence for prosecution of offenders, allegation of a "hierarchy" was incorrect as evidence of the Walton County wiretap had revealed,...