Floyd v. State

Beasley, Judge. Floyd appeals his conviction of 24 counts of theft by taking (OCGA § 16-8-2) and five counts of forgery (OCGA § 16-9-1), crimes committed while he was Clerk of the State Court of Glynn County. 1. The first question on appeal is whether the trial court erred in denying defendant’s motion to dismiss the indictment. Appellant seeks not a new trial but rather an exoneration of the twenty-nine charges of which he was found guilty. In this connection, the sole ground urged below, and here, is that the district attorney’s office engaged in prosecutorial misconduct by forcing defendant’s attorney to turn over certain of his financial records during the investigation, in violation of his right to due process of law under the Fifth and Fourteenth Amendments of the United States Constitution. Thus, as presented by appellant, we must determine whether these constitutional provisions require dismissal of the indictment and in effect, judgment of acquittal, when the state obtained records in the manner and under the circumstances of this case. We are bound to consider only those rulings of the trial court enumerated as error by appellant. OCGA § 5-6-40; Slaughter v. Linder, 122 Ga. App. 144, 148 (2) (c) (176 SE2d 450) (1970); Irvin v. Askew, 241 Ga. 561, 566 (2) (246 SE2d 682) (1978). See MacDonald v. MacDonald, 156 Ga. App. 565 (1) (275 SE2d 142) (1980). We also are confined to only those grounds raised below in connection with the error enumerated. Franklin v. State, 184 Ga. App. 396 (1) (361 SE2d 700) (1987); Brantley v. State, 177 Ga. App. 13, 14 (1) (338 SE2d 694) (1985). The function of this court is to correct errors of law committed by the lower courts and raised properly here. Fowler v. State, 155 Ga. App. 76 (2) (270 SE2d 297) (1980). Appellant does not here challenge the denial of his motion to suppress evidence, and for good reason. Suppression of the evidence gains nothing other than another trial on the same evidence, as the evidence in question was not tendered or referred to in the trial. Appellant apparently recognized, in not appealing the suppression rul [25] ing, that even if the evidence should have been suppressed, he sustained no harm from the jury’s consideration of it because it was not introduced. Harm as well as error must be shown to authorize reversal by an appellate court. Anderson v. State, 183 Ga. App. 313 (3) (358 SE2d 888) (1987). Stewart v. State, 180 Ga. App. 266, 267 (2) (349 SE2d 18) (1986), succinctly states the rule: “The burden is on the party claiming error not only to show error, but error which injured him, and unless the error resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right, an appellate court will not reverse.” Although appellant urges that he was harmed by this evidence because it led to the testimony and documents concerning his personal expenditures through his Federal Credit Union and American Express accounts, that is not so. The receipts and credit account statements which Claire turned over were just partly analyzed by the state and, although tending to show appellant was spending more than he was drawing in compensation as clerk, they were not used at trial. The state had better evidence of his living beyond legitimate means through records received directly from these same creditors and others pursuant to court orders of September 1986, four months before the box was delivered to the detective. None of its contents were used in the trial or to gain evidence which was admitted at trial. “A constitutional error is harmless, if there is no ‘reasonable possibility that the evidence complained of might have contributed to the conviction.’ Fahy v. Connecticut, 375 U. S. 85, 86-87 (84 SC 229, 11 LE2d 171) (1963). The test is . . . whether the evidence complained of may have influenced the factfinder’s deliberations, see Harrington v. California, 395 U. S. 250, 254 (89 SC 1726, 23 LE2d 284) (1969).” Harryman v. Estelle, 597 F2d 927, 929 (5th Cir. 1979). The application of this principle is illustrated in Chambley v. State, 177 Ga. App. 630 (1) (340 SE2d 635) (1986), and is appropriate here. What appellant wanted by his motion to dismiss the indictment and claims he is entitled to is a bar to prosecution. He urges that he was denied due process because of what the assistant district attorney wrote in the letter, even if it did not have the effect on Claire Floyd of producing incriminatory evidence by illegal coercion or by evoking fear in her which constituted coercion, and even if it did not produce evidence used in trial. Thus he appears to urge that the court must sanction the State for its writing and delivering such a letter, requested by the addressee (who is not the defendant) and including a statement suggesting prosecution if the addressee does not comply. The trial court conducted a hearing on the motion to dismiss, as well as on another motion, just prior to trial. At the hearing, defendant’s estranged wife, two police detectives, and the district attorney testified. The court had an earlier hearing on a motion to suppress the [26] same evidence, which it denied after considering the testimony of the same two detectives plus another officer and Claire Floyd, as well as the letter from the assistant district attorney to Claire. Defendant does not contend that denial was error. In ruling on the motion to dismiss, the court found as fact that there was no attorney-client relationship existing between Claire Floyd and defendant with respect to the items she turned over to the detective because they had no connection with the lawsuits in which she had been representing him. The court also found as fact that there was no prosecutorial misconduct in obtaining these documents. These findings are conclusive unless they are clearly erroneous, which they are not. See Muff v. State, 254 Ga. 45, 48 (2) (b) (326 SE2d 454) (1985), regarding findings at a suppression hearing. The principle is a general one, see, e.g., Conyers v. State, 249 Ga. 438, 441 (3) (291 SE2d 709) (1982), and would apply here as well. Other than the statement itself in the letter that “Failure to [turn over the papers] may result in criminal prosecution for withholding evidence,” there is no evidence of coercion. The letter from the assistant district attorney to Claire Floyd was prepared at the request of her attorney, who asked the assistant district attorney to give her a letter “directing” her to give the papers. Claire had filed an action for separate maintenance December 11 and, although she had been given complete authority over defendant’s belongings and affairs by his letter to his daughter just after he left town in September, and she considered his things to have been abandoned by him, she was concerned because they were now adversaries. The sentence extracted in the quote above was added after the assistant consulted with the district attorney. When Claire picked it up at the courthouse, she did not even consult with her attorney again but instead, the next day, called the detective about where to deliver the records and then did so, obtaining a receipt she had prepared. She was concerned that she would be implicated in his wrongdoing, because she and defendant had some joint accounts and because she was the beneficiary of some of his cash and credit expenditures and because she knew there was a boxful of hundred dollar bills in the house. Never did she intimate, in the motion to suppress hearing, or at the motion to dismiss hearing, or at trial, that she felt coerced or threatened in any way by the now-highlighted sentence. In fact, a review of her testimony, whether taken in its totality in these proceedings or only that portion which appears in the subject motion hearing, clearly shows that she did not wish to assist in the defense but cooperated from the beginning with the state. When the regular audit in August and September revealed the irregularities and appellant suddenly vanished without notice to her or anyone else after being confronted with some questions by the auditors, it is manifest that she [27] became anxious to distance herself from him. Claire never asserted or suggested that her Fourth Amendment rights were violated, or that she felt threatened or coerced by the district attorney. There is no evidence the state even knew of these papers or sought them before she voluntarily met with the district attorney. There is no evidence of lack of voluntariness but instead that she was willing, if not anxious, for the state to have them. And she justified her exercise of authority and control over them by pointing to defendant’s instructions in the letter he wrote to his daughter after he disappeared. Nor did Claire ever say or imply that her action was prompted by prosecutorial coercion, or that she delivered the box of papers because she felt threatened by the prosecutor. It is the effect of the letter on her that counts, in considering voluntariness. The controlling factor is not the contents of the letter per se but the effect thereof on the addressee, because it is her action which defendant complains yielded incriminating evidence. Thus a finding of fact by this court, that she was coerced, is not compelled by the evidence presented to the trial court. The latter viewed the letter in the context in which it was given as well as the broader context of Claire’s relationship with defendant and the history of the circumstances as well as what was anticipated by her. Nor is there fault with the trial court’s finding that the papers Claire took to the detective were unrelated to the attorney-client relationship which had existed. This relationship is what appellant based his motion to dismiss on and bottoms his appeal on. That is the sole ground we are confined to considering. Franklin, supra; Brantley, supra; Fowler, supra. It was undisputed that Claire had represented her husband in four legal matters: a suit for slander against a hospital concerning his paternity of a certain child born there, a suit to declare him not the father of that child, an injunction action against his brothers concerning some business venture, and a proceeding regarding his father’s estate. By the time the papers were given to the detective on January 10, she had stopped acting as his attorney, even though she had not entered formal withdrawals, and the matters had either been turned over to someone else or were concluded. Thus the evidence at the motion hearing just before trial supports the trial court’s ruling on this ground. Consequently, despite defendant’s protestations, this case does not involve illegally forced extraction of a client’s papers from that client’s attorney for the purpose of criminal prosecution. What the assistant district attorney wrote, when viewed in the light of the circumstances as to the operative effect of the sentence, or letter, unjustified though it may be, does not require acquittal in order to preserve [28] defendant’s federal constitutional right to due process of law. 2. The trial court did not err in refusing to sever the indictments, as to forgery, false swearing and theft, since they were based upon the same conduct or constituted part of a single scheme or plan, in appellant’s conduct as clerk of court, and the matter of severance lying within the sound discretion of the trial court. Griffin v. State, 180 Ga. App. 682 (350 SE2d 270) (1986). 3. The trial court’s polling of the jury upon request was properly done. See Green v. State, 246 Ga. 598 (17) (272 SE2d 475) (1980). Judgment affirmed. Benham, J., concurs. Been, P. J., concurs specially. McMurray, P. J., Carley and Pope, JJ., concur in the judgment only. Birdsong, C. J., Banke, P. J., and Sognier, J., dissent.