Opposition — Tuzman v. Georgia

IN THE | , |

Supreme Court of the United States

October Term, 1978

No. _€@ 0 * 3 es

nd

SHELDON M. TUZMAN,

Petitioner,

-

STATE OF GEORGIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF GEORGIA

BRIEF FOR THE RESPONDENT IN OPPOSITION

October, 1978

ARTHUR K. BOLTON

Attorney General

ROBERT S. Stusss, II

’xecutive Assistant Attorney General

Don A. LANGHAM

First Assistant Attorney General

MICHAEL J. BOWERS

Senior Assistant Attorney General

J. MELVIN ENGLAND

Special Assistant Attorney General

JosePH H. BRILEY

District Attorney

Ocmulgee Judicial Circuit

Counsel for Respondent

132 State Judicial Building

Atlanta, Georgia 30334

INDEX TO BRIEF

Page

ARGUMENT:

PART ONE

QUESTIONS PRESENTED................... J

PART TWO

STATEMENT OF THE CASE................. 2

PART THREE

REASONS FOR NOT GRANTING

THE WRIT

I. The admission of evidence of independent

crimes used as proof of Petitioner’s guilty

knowledge, scheme, motive and intent

does not violate his rights to fair and im-

partial trial and jury, to equal protection,

not to be placed twice in jeopardy for one

offense, to have his guilt proved by the

State, and to defend his cause before

Sy NG ok io bap axed Ph ee ohio. 4

II. The search warrant was based upon

substantial and ample probable cause in

the form of an affidavit and considerable

oral testimony; thus, Petitioner’s right to

be safe from our unreasonable search and

seizure was not violated

CONCLUSION

TABLE OF AUTHORITIES

Cases:

Anderson v. State, 222 Ga. 561,

Ee eee

Andresen v. Maryland, 427 U.S. 463,

96 S.Ct. 2737, 49 L.Ed.2d 467 (1976)..........

Bastida v. Henderson, 487 F.2d 860

en re SS a Cee SS ane pple 6 oy He ae oe

Fowler v. State, 121 Ga. App. 22,

ee ED CS bio 5's F464 noe reas eee

French v. State, 237 Ga. 620, 229 S.E.2d 410

SE ry Eee rie rey eye ee ee ee ee

Holt v. United States, 342 F.2d 163

Poss 9 Ws RRR EAE Hero Reh eae ae’

Howard v. State, 211 Ga. 186, 84 8.E.2d 455

Lee v. State, 8 Ga. App. 413, 69 S.E. 310 (1910)...

New v. State, 67 Ga. App. 442, 20 S.E.2d 617

8 pera es ee ce ere eer ere

to Art ee rere re ree rere re

People v. Johnston, 328 Mich. 213,

GR RO eee ees oe

Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138,

cog Ses. reer Cerrar

State v. Tuzman, 145 Ga. App. 481,

RS Re Pere rere eee re

Taylor v. Commonwealth, 186 Va. 587,

ep 8 gt. Bree ee re ae

TABLE OF AUTHORITIES—Continued

Cases—Continued:

Thomas v. State, 239 Ga. 734, 238 S.E.2d 888

$s | ree re tr re tots dag me fer!

Tuzman v. State, 145 Ga. App. 761,

ee EF Rt ee ree

United States v. Alston, 460 F.2d 48 (5th Cir.

1972), cert. denied, 409 U.S. 871 (1972).......

United States v. Broadway, 477 F.2d 991

(5th Cir. 1973)

United States v. Burkhart, 458 F.2d 201

(10th Cir. 1972)

United States v. Byrd, 352 F.2d 570

ne Cae. BE oases ok eee

United States v. Cochran, 499 F.2d 380 (5th Cir.

1974), cert. denied, 419 U.S. 1124 (1974).......

Umited States v. Harris, 482 F.2d 1115

(8rd Cir. 1973)

United States v. Johnson, 461 F.2d 285

(10th Cir. 1972)

United States v. Rahn, 511 F.2d 290 (10th Cir.

1975), cert. denied, 423 U.S. 825 (1975)

United States v. Welborn, 322 F.2d 910

(4th Cir. 1963)

Statutes:

Ga. Code Ann. § 38-202

OP © 68 OHSS. EEC ee Ce TET Ee 6.6.0 8 BO OS

SC COO DéEDUSHO OP O99 88 02 2 6 oD

0 Oe Pe tee F te ERD ee bee 6 to 6 oe

IN THE

Supreme Court of the United States

October Term, 1978

No.

SHELDON M. TUZMAN,

Petitioner,

Vv

STATE OF GEORGIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF GEORGIA

BRIEF FOR THE RESPONDENT IN OPPOSITION

PART ONE

QUESTIONS PRESENTED

1.

Whether the admission of evidence of independent

crimes used as proof of Petitioner’s guilty knowledge,

scheme, motive and intent violates his rights to a fair

and impartial trial and jury, to equal protection, not to

be placed twice in jeopardy for one offense, to have his

guilt proved by the State, and to defend his cause before

the courts.

2.

Whether a search warrant that was based upon sub-

1

2

stantial and ample probable cause in the form of an affi-

davit and considerable oral testimony violates Petitioner’s

right to be safe from unreasonable searches and seizures.

PART TWO

STATEMENT OF THE CASE

For several years, Georgia medicaid recipients received

dental services from Petitioner, Dr. Sheldon M. Tuzman.

After discrepancies of medicaid claims for which Petitioner

had been paid came to the attention of the State, exten-

sive investigation of his participation in the medicaid

program took place. On the basis of the investigation, the

State sought two search warrants dated February 23,

1977.

The thrust of the search warrants and affidavit is

that Petitioner was suspected of using examination and

treatment records, x-rays, payment records and dental

appliances as instrumentalities and tangible evidence of

crimes of theft by deception. This evidence was based on

information of claims and payments from a named State

official of the Georgia Department of Human Resources,

whose name was set forth in the affidavit.

The evidence was further based upon professional

examinations of numerous patients of Petitioner by named

members of a Peer Review Committee of the Georgia

Dental Association.

Attached to the affidavit and incorporated therein was

Petitioner’s Medicaid Agreement wherein he agreed to

keep such records as those sought. The issuing judge

considered this along with the other evidence.

Specifically, the affidavit sets forth that Georgia

Bureau of Investigation (‘‘G.B.I.’”’) Agent Wilkerson said

that when he was in Petitioner’s office on May 13, 1976,

3

the records were there. It further affirmed that Special

Investigator Gene A. Matthews, in telephone conversa-

tions with Petitioner on February 14 and 15, 1977, corrob-

orated circumstantially that the records were still at the

office. The warrant was issued on February 23, 1977.

G.B.I. Agent James Duff and Special Investigator

Matthews executed the search warrants on the evening of

February 23, 1977, after being delayed by Petitioner.

A motion by Petitioner to suppress the seized evidence

was denied. Moreover, Petitioner’s objections to admis-

sion of the seized evidence during trial was overruled.

Petitioner was indicted on forty-one separate counts

of theft by deception. Petitioner was granted a plea in bar

as to thirty of the counts on the grounds that those counts

involved less than $100 and were therefore misdemeanors

barred by the statute of limitations. The State appealed

that judgment in State v. Tuzman, 145 Ga. App. 481, 243

S.E.2d 675 (1978).

Evidence relating to the barred counts was introduced

at trial, under long established Georgia authority, for the

purpose of showing Petitioner’s guilty knowledge, motive,

scheme and intent. The trial court instructed the jury

regarding the limited nature of the evidence concerning

Petitioner’s conduct for which he was not on trial. The

Special Prosecutor emphasized the same numerous times.

In his charge, the trial judge repeatedly elucidated the

point that Petitioner was only on trial on eleven felony

counts and not on any misdemeanor count. He instructed

the jury to find Petitioner ‘‘not guilty” if any felony count

showed theft of $100 or less.

Petitioner was found guilty of three felony counts for

theft by deception. He was sentenced to five years on

4

each count as a “First Offender,’”’ placed on probation,

fined $2,000 on each conviction and ordered to pay

restitution.

Petitioner filed a notice of appeal in the Supreme Court

of Georgia on June 3, 1977. The case was transferred to

the Court of Appeals of Georgia, where it was heard. The

Court of Appeals affirmed the judgment of the trial court

on April 5, 1978. A motion for rehearing was denied by

the Court of Appeals of Georgia on April 28, 1978. The

Georgia Supreme Court denied Petitioner’s application

for writ of certiorari on June 9, 1978.

Additional facts will be developed as necessary for a

more thorough illumination of any issues raised in this

petition.

PART THREE

REASONS FOR NOT GRANTING THE WRIT

I. The admission of evidence of independent crimes

used as proof of Petitioner’s guilty knowledge,

scheme, motive and intent does not violate his

rights to a fair and impartial trial and jury, to

equal protection, not to be placed twice in jeopardy

for one offense, to have his guilt proved by the

State, and to defend his cause before the courts.

During the trial, evidence was admitted over Peti-

tioner’s objection, concerning thirty misdemeanor counts

that were barred by the statute of limitations. Respondent

limited the use of the independent crime evidence to the

proof of Petitioner’s guilty knowledge, scheme, motive

and intent.

Generally, evidence introduced in a criminal trial

should only relate to the specific offense charged; how-

ever, there are several established exceptions which allow

5

such evidence to be received in special circumstances and

for limited purposes. United States v. Burkhart, 458 F.2d

201 (10th Cir. 1972). There are a myriad of cases illus-

trating the widespread acceptance of these exceptions.

One exception, which is widely recognized, is the use of

evidence of independent crimes to prove criminal intent

where the independent crime and the crime charged

occurred in close proximity in time and the essential

physical elements of both offenses are identical. United

States v. Broadway, 477 F.2d 991 (5th Cir. 1973); United

States v. Alston, 460 F.2d 48 (5th Cir. 1972), cert. denied,

409 U.S. 871 (1972); Jackson v. State, 76 Ga. 551 (8)

(1886).

Prior to admitting evidence of independent crimes for

proof of intent, the probative value of the evidence is

balanced against any prejudice that may result. United

States v. Cochran, 499 F.2d 380 (5th Cir. 1974), cert.

denied, 419 U.S. 1124 (1974); Payne v. State, 233 Ga. 294,

210 S.E.2d 775 (1974). This balancing precaution was

observed in the instant case. The use of the evidence of

the misdemeanor counts was justified because the evi-

dence tended to prove an intent which was ar. essential

element of the offense on trial. In contrast, the evidence

was not overly prejudicial because the jury was instructed

throughout the trial that Petitioner was on trial only for

the eleven felony charges. For instance, the Special Prose-

cutor, in his opening statement, was very clear in his

explanation to the jury about the limited purpose of this

evidence. On each occasion the State introduced evidence

of the misdemeanors, the jury’s attention was called to

the fact of the limited purpose of the evidence. Finally, in

the closing argument the Special Prosecutor reemphasized

the limited purpose of the independent crime evidence.

The trial court’s decision that the probative value of such

6

evidence outweighed the danger of the prejudice was

affirmed by the Court of Appeals of Georgia. Tuzman v.

State, 145 Ga. 761, 244 S.E.2d 882 (1978). The Court of

Appeals’ position is in line with the prevailing view that

the balancing of probative and prejudicial values should

be left largely within the sound discretion of the trial

judge. United States v. Byrd, 352 F.2d 570 (2nd Cir. 1965).

Moreover, the trial court judge must be given considerable

latitude in allowing evidence to show the element of

intent. Holt v. United States, 342 F.2d 163, 166 (5th Cir.

1965).

Contrary to the Petitioner’s view, the Georgia ex-

clusionary rule, which can be found in Ga. Code Ann.

§ 38-202, has not been carried to an ‘unconstitutional

extreme.” It is generally accepted that an acquittal of

the accused of an offense does not render evidence of that

offense inadmissible at a later criminal trial where such

evidence is otherwise competent. United States v. Welborn,

322 F.2d 910 (4th Cir. 1963); Thomas v. State, 239 Ga.

734, 238 S.E.2d 888 (1977); Lee v. State, 8 Ga. App. 413,

69 S.E. 310 (1910); People v. Johnston, 328 Mich. 213,

43 N.W.2d 334 (1950); Taylor v. Commonwealth, 186 Va.

587, 43 S.E.2d 906 (1947).

In the instant case, the Court’s application of the ex-

clusionary rule is particularly valid because of the close

connection between the independent crime and the offense

on trial. Petitioner, a dentist, was charged with stealing

money under the Medicaid Program by making claims

and receiving payments for work which he falsely claimed

to have performed. The basic issue was whether his con-

duct resulted from an intention to steal or was it the

result of honest mistakes. The evidence of his conduct in

the processing of similar claims on the same and different

I

7

patients, from those named in the indictment, relating to

similar dental treatment, the same administrative and

dental process, and involving the same program during

the same period of time, was highly relevant and material

to the issue of intent. Hence, there was a substantial

logical connection, so that the proof of one tended to

prove the other.

Different jurisdictions vary as to the degree of proof

required for admissibility of independent crime evidence,

but the decisions in Georgia construing Ga. Code Ann.

§ 38-202 clearly do not require proof of the corpus delicti.

Anderson v. State, 222 @m. 561, 150 S.E.2d 638 (1966);

New v. State, 67 Ga. App. 442, 20 S.E.2d 617 (1942). The

State, nonetheless, has to show that the defendant on

trial is the same person involved in those independent

crimes. French v. State, 237 Ga. 620, 229 S.E.2d 410 (1976) ;

Howard v. State, 211 Ga. 186, 84 8.E.2d 455 (1954). The

proof of identity required in French and Howard is suffi-

cient to assure that the evidence on the independent crime

is more than a ‘“‘mere suspicion.” This conclusion is fur-

ther supported by an assertion stated earlier in this brief:

the independent crime and the crime charged are so

intimately related that the proof of one cannot be made

without showing of facts tending to establish the other.

Therefore, the introduction of evidence of very similar

independent crimes did not violate Petitioner’s constitu-

tional rights. Consequently, his petition for a writ of

certiorari based upon this argument should be denied.

II. The search warrant was based upon substantial

and ample probable cause in the form of an affi-

davit and considerable oral testimony; thus,

Petitioner’s right to be safe from our unreasonable

search and seizure was not violated.

8

In the present case, it was reasonable for the judge

issuing the search warrant dated February 23, 1977, to

conclude that the items to be seized were still located in

the Petitioner’s office.

Staleness relates to the probability of whether or not

the evidence to be seized is still at the location to be

searched. United States v. Rahn, 511 F.2d 290 (10th Cir.

1975), cert. denied, 423 U.S. 825 (1975). The affidavit in

support of the warrant application showed that there

was a direct observation of the Petitioner’s office files on

May 13, 1976. It further affirms that Special Investigator

Matthews, in telephone conversations with Petitioner on

February 14 and 15, 1977, corroborated circumstantially

that the records were still at the office. The warrant was

issued on February 23, 1977. Attached to the affidavit

and incorporated therein was Petitioner’s Medicaid

Agreement wherein he agreed to keep such records as

those sought.

In issuing a search warrant the judge must exercise his

own judgment as to whether the facts alleged in the affi-

davit constitute probable cause for issuance of the war-

rant; he must act on the entire picture disclosed to him;

he is entitled to use his common sense; and the courts

have gone so far as to say that when this is done, his

determination is conclusive in the absence of arbitrariness.

Bastida v. Henderson, 487 F.2d 860, 863 (5th Cir. 1973).

In view of the facts in this case and the prevailing

principle of law it was reasonable for the issuing judge to

conclude that the records were still at the Petitioner’s

office.

Assuming, arguendo, that there was a nine month time

gap between the issuance of the search warrant and the

date on which the State had solid information as to the

9

whereabouts of the items seized, the type of crime and

evidence involved prevents a staleness problem from

arising in this case.

In Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77

L.Ed 260 (1932), this Court spoke to the issue of time-

liness in a case involving a search under the National

Prohibition Act. Although this Court found that a search

executed twenty days after obtaining the information

leading to the issuance of the warrant was invalid, Sgro

also held that timeliness as an element in probable cause

must be determined by the circumstances of each case.

In analyzing the circumstances of each case the question

is one of reasonableness: Is the lapse of time so long that

it is no longer reasonable to believe that the same con-

ditions described in the affidavit remain at the time the

warrant is issued? Fowler v. State, 121 Ga. App. 22, 172

S.E.2d 447 (1970). Factors to take into account in reach-

ing a decision are the nature of the evidence sought and

the unlawful activity. United States v. Harris, 482 F.2d

1115 (8rd Cir. 1973); United States v. Johnson, 461 F.2d

285 (10th Cir. inn

The evidence seized, in the instant case, included

records that Petitioner was required to maintain and

keep for considerable periods of time because of his

Medicaid Agreement. Consequently, there was reason to

believe that the documents would, in all probability, be

preserved for more than the nine month period in question.

This Court recently upheld a warrant against a similar

argument in a case where there had been a three month

delay between the completion of the transactions on

which the warrants were based and the ensuing action.

See Andresen v. Maryland, 427 U.S. 463, 478 n.9, 96 S.Ct.

2737, 49 L.Ed.2d 467 (1976). The records, in the present

10

case, were prepared in the ordinary course of business and

are much the same as the attorney’s files in Andresen;

they are permanent in character and they are likely to be

maintained in one place much longer than would illicit

drugs, stolen merchandise, or murder weapons. It would,

therefore, be reasonable to believe that a nine month

lapse would not prevent a proper determination that

there was probable cause to believe the records would be

found in appellant’s office.

It is the State’s conclusion that the Georgia Court of

Appeals was correct in finding that the warrant was

properly issued; therefore, this Court should deny Peti-

tioner’s request for writ of certiorari.

11

CONCLUSION

This Court should refuse to grant a writ of certiorari to

the Court of Appeals of Georgia for the reasons set forth

herein.

Respectfully submitted,

ARTHUR K. BOLTON

Attorney General

Rosert S. Stusss, IT

Executive Assistant Attorney General

Don A. LANGHAM

First Assistant Attorney General

MIcHAEL J. BOWERS

Senior Assistant Attorney General

J. MELVIN ENGLAND

Special Assistant Attorney General

JosEePH H. BrILEY

District Attorney

Ocmulgee Judicial Circuit

Please Address All

Correspondence to:

MIcHAEL J. BOWERS

Senior Assistant Attorney General

132 State Judicial Bldg.

Atlanta, Georgia 30334

Telephone: (404) 656-3330

12

CERTIFICATE OF SERVICE

This is to certify that I have this date served a copy of

the within and foregoing Brief for the Respondent in

Opposition upon Mr. G. L. Dickens, Jr., at the address

listed below, by placing the same into the United States

Mail in a properly addressed envelope with first class

postage placed thereon.

Mr. G. L. Dickens, Jr.

Dickens, Mangum & Burns, P.C.

Attorneys at Law

140 West Washington Street

Milledgeville, Georgia 31061

This ___. day of , 1978.

MICHAEL J. BOWERS

Senior Assistant Attorney General