Petition — MERRITT v. GEORGIA (Nos. 83-1578, 83-1463)

IN THE

Supreme Court of the United States

October Term, 1983

WESLEY MERRITT,

Petitioner,

vs.

STATE OF GEORGIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

QUESTIONS PRESENTED

1. Whether O.C.G.A. §16-14-7(f) facially violates the

Fourth and Fourteenth Amendments to the United States

Constitution, because it delegates to law enforcement au-

thorities executing a search warrant unbridled discretion

to search for and seize anything they choose to seize.

Subsumed is ‘whether the searches and seizures, as con-

ducted in this case under the authority of the statute

were general.

2. Whether under color of law the Trial Court’s over-

ruling of the motion to suppress based upon a separate

prior case involving the co-defendant alone coupled with

the Appellate Courts affirmance of said ruling without

the warrant and supporting affidavit being a part of the

record deprives the petitioner of a full and fair hearing

thereby depriving petitioner of his Fourth Amendment

rights without due process of law.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED................0005. i

SS IT: 1

JURISDICTIONAL STATEMENT............... 2

CONSTITUTIONAL PROVISIONS INVOLVED.. 2

STATUTE INVOLVED. ................00.c000: 3

STATEMENT OF THE CASE.................-- 4

REASONS FOR GRANTING THE WRIT........ 7

tn ae 7

I. THE UNCONSTITUTIONAL STATUTE... 7

ee oc. cocecssecesuars 11

scab awons Loe 13

CERTIFICATE OF SERVICE.................-. 14

APPENDICES A, B,C........... separately paginated

ii

7

a

ae

ma by

TABLE OF AUTHORITIES

Page

Cases Cited:

Brookhart v. Janis, 384 U.S. 1, 3, 86 8. Ct. 1245

Ee ees Fe oR ere 12

Carroll v. United States, 267 U.S. 132 45 S. Ct. 280 -

SINK 35 6 Ucxccans accu adkn nt pas enateieenes wat 8

Cook v. State, 134 Ga. App. 712, 716 215 S.E. 2d

Se CS 84h is oa hucncak v eae oeer Geach eke 10

Coolidge v. New Hampshire, 403 U.S. 443, 462

ST CUED, <0 06k na wedeet Ok ae venees 8

Gray v. State, 145 Ga. App. 293 243 S.E.2d 687

NL Dnt Va a.b sae hie ey Ma ECA SRN Oe ou peak 11, 12

Gurleski v. United States, 405 F. 2d 253, 258

Ce SO RO socks vnssadegadtencasetes Wea 10

Holt v. State, 2 Ga. App. 383 58 S.E. 511 (1907)..... 13

Johnson v. State, 111 Ga. App. 298 141 8.E.2d 574

ING: 5s o'e.c-v's (is 5.4 PRMD CAREX RRR EET OS 10

Ker v. California, 374 U.S. 23, 33 83 S. Ct. 1623

|. am 60% bein kd Rbaetencseeheaaen tame 10

Kremen v. United States, 353 U.S. 346 77 S.Ct. 828

SOT DS occ a0 ws ob wdsad dq beketeee Aaa ea aes 10

Ledesma v. State $39691 decided September 7, 1983.. 11

Ledford v. State, 89 Ga. App. 683 80 S.E. 2d 828

as « nde desbhos ah suosaneaee sok Canad ake 13

Lisky v. State, 156 Ga. App. 45, 46 274 S.E. 2d 89

EP PRE Br rr peas, Me yal aeh soe 13

Marron v. United States, 275 U.S. 192, 196

CD < sis cenddevanes (stank cobbsier peekee 8, 10

People v. Plevy, 417 N.E. 2d 518 52 N.Y. 2d 58

RES CSs'cc o\a:<.n 0s odt.duud Ray beaker see Ge 12

TABLE OF AUTHORITIES (Continued)

Page

Cases Cited:—Continued

Pointer 'v. Texas, 380 U.S. 400, 85 8S. Ct. 1065

SID isc 2 c0'c.0b-65 ou vee c ats coe va Vpaeeke ob waees 12

Stone v. Powell, 428 U.S. 465 95 S. Ct. 3037, 3083

CEUON Ts oc vee bebe l osan ede secaeweaue . sebeeee 11

Terry v. Ohio, 392 U.S. 1, 18, 88S. Ct. 1868 (1968)... 10

Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745

SS Girt cant cues cavaew tin vee erbea haves 11

United States v. Kleefield, 275 F. Supp. 761

4 PR a a ae ae CRS ee a es Fae 10

Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642

ile Me ig ir alanis ts ve sub Mee 8)

Western Business Systems v. Slaton, 492 F. Supp.

i oss wake on os. ph eie 8 ti wah tial 8)

Constitutional Provisions:

Fourth Amendment to the Constitution of

A oe k's 2, 8, 9, 10, 11

Fifth Amendment to the Constitution of

a eS Or bara eéu eon 2

Sixth Amendment to the Constitution of

Se I I soe vk oda wk be tepid owe 2, 3, 12

Fourteenth Amendment to the Constitution

Or Re Se I. vcs one caus cn cdeaude® s 3, 8, 12

Oe Se ME GN ois beh aca bie @cecnccaca seaneee 2

Statutes:

SIT OD 5. es cdnecccussd bowen 3, 5, 7, 11

Ne oh eae 2 ae 12

ICI SR a ka ok 12

Treatises

Mascolo, Specificity Requirements for Warrants

under the Fo Amendment: Defining the

Zone of Privacy, 73 Dick. L. Rev. 1, 5-6 (1968)... 8

IV

NO.

IN THE

Supreme Court of the United States

October Term, 1983

WESLEY MERRITT,

Petitioner,

vs.

STATE OF GEORGIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

PETITION FOR WRIT OF CERTIORARI

The Petitioner, Wesley Merritt respectfully prays that

a writ of certiorari issue to review the judgment of the

Supreme Court of Georgia, entered on January 5, 1984,

affirming the petitioner’s conviction for conspiracy to sell

cocaine in violation of the Georgia Control Substances

Act (OCGA 16-13-20).

OPINION BELOW

The Supreme Court of the State of Georgia entered its

opinicn affirming the petitioner’s conviction on January

5, 1984, and is set forth in appendix A. The Decision is

reported at 252 Ga. ____ (1984). Petitioner’s motion for

Rehearing was denied on January 31, 1984 and is set

forth in appendix B. A motion to recall and Stay the

Remittitur was granted February 17, 1984 and is set forth

in appendix C.

1

2

JURISDICTIONAL STATEMENT

The jurisdiction of this Court is invoked under 28

U.S.C. §1257(3). In that this petition 1s being filed with-

in sixty (60) days from January 31, 1984, it is timely.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the United States Consti-

tution provides:

The right of the people to be secure in their persons,

houses, papers; and effects against unreasonable

searches and seizures shall not be violated, and no

warrants shall issue, but upon probable cause, sup-

ported by oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

The Fifth Amendment to the United States Constitu-

tion provides:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in crises aris-

ing in the land or naval forces, or in the Militia, when

in actual service in time of War or public danger;

nor shall any persons be subject for the same offense

to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor s pri-

vate property be taken for public use, without just

compensation.

The Sixth Amendment to the United States Constitu-

tion provides:

In all criminal prosecution, the accused shall enjoy

the right to speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses against him;

to have compulsory process for obtaining witnesses

in his favor, and to have the Assistance of Counsel

for his defense.

The Fourteenth Amendment to the United States Con-

stitution provides, in relevant part:

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction there-

cf, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immu-

nities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

— its jurisdiction the equal protection of the

aws.

STATUTE INVOLVED

O0.C.G.A. §16-14-7 (f) (formerly §26-3405 (d) (2) Ga.

Code Ann.), in pertinent part, provides:

Seizure may be effected by a law enforcement officer

authorized to enforce the penal laws of this state

prior to the filing of the complaint and without a

writ of seizure if the seizure is incident to lawful ar-

rest, search, or inspection and the officer has prob-

able cause to believe the property is subject to for-

feiture and will be lost or destroyed if not seized.

Within ten days of the date of seizure, the seizure

shall be reported by the officer to the district attor-

ney of the circuit in which the seizure is effected;

and the district attorney shall, within 30 days of re-

0g: Compe of seizure, file a complaint for forfei-

ture. The complaint shall state, in addition to the

information required in subsection (e) of this Code

section, the date and place of seizure.

4

STATEMENT OF THE CASE

The indictment charged that petitioner and 4 other

people between June 22, 1982 and October 22, 1982 ‘‘did

unlawfully conspire to violate Schedule II of the Georgia

Controlled Substances Act by joining among themselves

and others to sell cocaine and certain members of such

conspiracy did sell cocaine in violation of Schedule II of

the Georgia Controlled Substances Act”’.

Co-indictees, Joseph B. Downing, Jr. and Charles Wes-

ley Freeman, pled guilty to the indictment and in con-

sideration for lesser sentences testified for the State (R3,

T93, T94). Co-indictee Miriarn Ledesma and the peti-

tioner were jointly tried by jury, found guilty and sen-

tenced to 10 years imprisonment. (T428, 431).

On October 25, 1982, authorities executed a search

warrant at 1631 Gordon Street, the location of Merritt

Realty Co. (T1293, T784-785). The warrant listed the

items to be seized as a “ledger containing certain drug

sales information, drug paraphernalia, U.S. currency, and

cocaine.” (T784). No such items were found. (T792).

However, 19 items were seized ranging from a calendar

to typewriters and sales contracts. (T792). No item was

incriminating upon its face, nor was any item alleged to

be stolen nor was any item contraband. A motion to sup-

press was filed and overruled. (‘T72-84, R81). Over ob-

jection a desk calendar with the name and phone number

of a “Roberto,” deposit slips for Wes-Mer Chemical Co.

and an employment contract in which the petitioner was

named as secretary of Wes-Mer Chemical Co. were en-

tered into evidence.

The warrant authorizing the search of the private resi-

dence of petitioner and his office at Merritt Realty Co.

5

was one of a series of 3 warrants which were the fruits of

wiretaps. (T-259).

The petitioner and Ms. Ledesma specifically challenged

the sufficiency of the affidavits to support wiretap autho-

rization and challenged whether the information was in

fact correct (T-238). Not only were they not properly

sealed but the State made copies of the wiretap docu-

ments after they were ordered sealed and without the per-

mission of the court (T-225). In fact, there never was a

court order authorizing publication of the tapes (T-236).

The wiretap affidavits themselves showed that each

new application rested upon the prior application (R65,

125). The court overruled the motions (T-237, 285), spe-

cifically finding that the wiretaps were legal and thus not

a basis for suppressing physical evidence seized as a result

of these searches (T-285). However this ruling was lim-

ited to the last two wiretaps and the evidence obtained

therefrom (T-285), as the State advised the court it would

not use any evidence from the first wiretaps (T-285). The

record shows clearly the state put on no evidence to sup-

port the legality of the first two sets of wiretaps. Further-

more the State did not put into the Record copies of th2

search warrant, nor accompanying affidavits or other sup

porting documentation.

The state argued that the search warrant was autho-

rized by OCGA §16-14-7(f) which authorizes the seizure

of property subject to forfeiture under the Georgia Racke-

teer Influenced and Corrupt Organizations Act (RICO).

The petitioner filed pre-trial motions attacking the con-

stitutionality of the statute (R-126, 127). Even though

the case was not brought under OCGA 16-14-1 et seq., the

court overruled the motion and allowed the evidence in

at trial over objection (T-285, 286).

6

The remainder of the State’s case concerning the peti-

tioner consisted of the testimony of two admitted accom-

plices.

The State’s first witness, Derrick Brown testified that

he was a convicted felon which sentence he was now serv-

ing was hopefully to be modified upon request of the

State in consideration for his testimony. (T10). While he

was not indicted as a co-conspirator, he testified that

Miriam Ledesma had a lot of people selling cocaine for

her and that he was one of those persons. (T12). The wit-

ness further testified that during a period from December

1981 through April 1982 he had seen the petitioner in

the company of Miriam Ledesma and he was “trying to

straighten out how she was getting shorted on the money

and how she could stretch (the cocaine) by cutting it

more.” (T15). He had seen the petitioner cut cocaine in

the presence of the co-defendant but didn’t know if he

was helping her or not.

Joseph Downing, a co-defendant who pled guilty for

a 6 month sentence testified that he met the petitioner

through Ms. Ledesma, that the purpose of the meeting

was to get an understanding of what the witness could

do with regard to buying cocaine from the petitioner and

that he did buy cocaine from the petitioner. (T104). How-

ever the witness admitted no other person saw or knew

of the transactions between himself and the petitioner.

(T137). The only other evidence elicited against the pe-

titioner consisted of a picture of him found in the co-

defendant’s purse (T48), his being the secretary of Wes-

Mer Chemical Co. (T518), a desk calendar with the name

and phone number of “‘Roberto”’ written upon it (T294)

and that he has been seen at Wes-Mer Chemical Co. 3

times in 5 weeks (T350).

7

However, it was developed that petitioner and Ms.

Ledesma were formerly married (T49), that Wes-Mer

Chemical Co. was a bona fide cleaning material lab (T328)

and that no drugs were found in the petitioner’s posses-

sion nor did undercover agents ever purchase cocaine

from the petitioner. (T71).

REASONS FOR GRANTING THE WRIT

I. THE OPINION BELOW UPHOLDING THE

CONSTITUTIONALITY OF OCGA 16-14-7 (f)

WHICH BY ITS TERMS ALLOWS STATE LAW

ENFORCEMENT OFFICERS TO CONDUCT

GENERAL SEARCHES AND SEIZURES IS

CONTRARY TO THE DECISIONS OF THIS

COURT AND IS A QUESTION OF NATIONAL

IMPORT.

The questioned statute delegates to law enforcement

personnel executing a search, with or without a war-

rant, unbridled discretion; therefore, it not only violates

the Fourth Amendment specificity and particularity re-

quirements, it constitutes an impermissible delegation of

the judicial duty and function of determining, in advance,

questions of probable cause and the permissible scope of

the search. Under the Georgia Statute, the executing offi-

cer is given the authority to seize any property he “has

probable cause to believe will be subject to forfeiture and

will be lost or destroyed if not seized.”

Therefore, the statute authorizes the executing officer

not only to determine probable cause but dispenses with

the judicial presearch determination of specificity and

particularity.

Almost four score years ago, this Court held that a

search warrant must describe the property to be seized

8

with sufficient specificity and particularity, so that noth-

ing is left to the discretion of the executing officer. Marron

v. United States, 275 U.S. 192, 196 (1927). Where a war-

rant invites discretion it fails for lack of specificity and

is classified as general. See Mascolo, Specificity Require-

ments for Warrants under the Fourth Amendment: De-

fining the Zone of Privacy. 73 Dick L. Rev. 1, 5-6 (1968).

It cannot be argued that the statute fits within any

exception to rule that searches conducted outside the ju-

dicial process without prior judicial approval are per se

unreasonable under the Fourth Amendment. Carroll v.

United States, 267 U.S. 132, 45 S. Ct. 280 (1925).

“When the right of privacy must reasonably yield

to the right of search is, as a rule, to be decided by

a judicial officer, not by a policeman or government

enforcement agent.’’ Coolidge v. New Hampshire, 403

U.S. 443, 462 91 S. Ct. 2022 (1971).

The search warrants issued here were not general war-

rants on their face. The things to be discovered were de-

scribed with particularity. The question is whether the

search that was conducted, either under the auspices of

the statute or some other exception to the Fourth Amend-

ment, was not confined to its lawful scope and became

general. Had the issuing judge been informed of the true

reason for the warrant request and the scope of the search

contemplated, he might have approved it, subject to ex-

plicit limitations on the scope of discovery to prevent an

overly intrusive search. But the officers whether relying

on the statute’s sweep or some other exception, disclosed

no such information, arrogating to themselves the magis-

terial function of setting out the dimensions of the search.

In fact, at trial the district attorney said ‘‘I stipulate that

every item... the officer made the decision whether or

not it was seizable, not Judge Etheridge.” (T276).

9

As conducted in this case, the search here was a gen-

eral search. The warrants here authorized a search for

“drugs and drug paraphernalia.”” Armed with these war-

rants the executing officers embarked on an unconstitu-

tional fishing expedition. As the Supreme Court of Geor-

gia found: ‘‘These papers consisted of a ledger reciting

two drug transactions; two desk calendars recounting drug

transactions and the name of a drug courier; deposit slips

for Wes-Mer Chemical Company found at petitioner’s

real estate business; a business license of Wes-Mer Chem-

ical Company; and an employment contract between a

third party and Wes-Mer Chemical Company”’ (Slip Opin-

ion page 7) (Appendix 8a). All the warrants claimed the

items sought to be seized were on the person of either pe-

titioner or Ledesma or in their respective offices and peti-

tioner’s home. From petitioner they seized a ‘‘manila en-

velope marked Mr. Merritt (misc papers) (sic)’’ and

“desk calendar (from the desk of Wesley Merritt)’’.

The Fourth Amendment was enacted in reaction to the

evils of the general warrant and outlawed it. Warden v.

Hayden, 387 U.S. 294, 87 8. Ct. 1642 (1967). The RICO

statute, which Georgia’s statute follows, has been inter-

preted to authorize the seizure of ‘‘all items of whatever

nature and no matter how inoffensive, if it is acquired

with racketeering proceeds . . . it might be anything from

gardening equipment to cookbooks.’ Western Business

Systems v. Slaton, 492 F. Supp. 513 (N.D. Ga. 1980).

It is of course not the rule that only evidence uncov-

ered during a search must invariably be described in the

warrant before it may be seized. Where evidence is un-

covered during a search pursuant to a warrant the thresh-

old question must be whether the search was confined to

the warrants terms.

10

However it may not be a general exploratory search.

Gurleski v. United States, 405 F.2d 253, 258 (5th Cir. 1968).

As executed here the warrant became an instrument for

conducting a general search. Under the circumstances, it

was not possible to identify after the fact the distinct

items of evidence which might have been discovered had

the officers kept their search within the bounds permitted

by the warrant; and therefore all evidence seized during

this search under the auspices of this statute and warrant

should have been suppressed.

“Probable cause cannot be measured by hindsight.”

Cook v. State, 1384 Ga. App. 712, 716 215 S.E. 2d 728

(1975).

The validity of the scope of the search depends, gen-

erally, upon the reasonableness of the search in light of

its purpose. Ker v. California, 374 U.S. 23, 33, 83 S.Ct.

1623 (1963).

A search which is initially valid may violate the Fourth

Amendment because of “its intolerable intensity and

scope.” Terry v. (io, 392 U.S. 1, 18, 88 S.Ct. 1868 (1968).

Accordingly, it has been held unreasonable to search and

seize a defendant’s files. United States v. Kleefield, 275 F.

Supp. 761 (S.D. N.Y. 1967). In Marron v. United States,

supra, the Court held that a “ledger showing inventories

of liquor, receipts, expenses, including gifts to police offi-

cers’’ could not be lawfully seized pursuant to a warrant.

Of course, the mere fact that the articles seized are later

found to be incriminating does not validate the search.

Johnson v. State, 111 Ga. App. 298, 141 S.E.2d 574 (1965).

And because this was a general search everything seized

should be suppressed if the exclusionary rules deterrent

principle is to have any practical meaning. Cf. Kremen v.

United States, 353 U.S. 346, 77 S. Ct. 88 (1957).

Il

Conclusion

OCGA 16-14-7 (f), viewed in light of the Fourth Amend-

ment, presents a question of national import and in fact

this Court has already granted Certiorari on the exact

same issue as is presented here. See Waller v. Georgia,

Case No. 83-321, cert. granted 11/07/83.

II. THE HEARINGS ON THE MOTION TO SUP-

PRESS IN THE TRIAL COURT WERE NOT

FULL, WERE FUNDAMENTALLY UNFAIR

AND DEPRIVED THE PETITIONER HIS

FOURTH AMENDMENT RIGHTS WITHOUT

DUE PROCESS.

“An opportunity for full and fair consideration must

be afforded”’ at trial and on direct appeal. Stone v. Powell,

428 U.S. 465 95 S.Ct. 3037, 3083 (1977). Under the stan-

dards set forth in Townsend v. Sain, 372 U.S. 293, 83 S.Ct.

745 (1963) the merits of the factual dispute were not ad-

dressed or resolved in the trial or appellate court, the

state factual determination is not supported by the rec-

ord as a whole and the fact finding-procedure employed

by the state courts was not adequate to afford a full and

fair hearing.

In Georgia the burden of proof is upon the state at

a Motion to Suppress hearing. Gray v. State, 145 Ga. App.

293 243 S.E.2d 687 (1978).

The trial court overruled the motion to suppress based

upon its ruling in a distinct and separate case involving

the co-defendant, Ledesma. That case was Ledesma v.

State $39691 decided September 7, 1983. In affirming the

trial court, the Georgia Supreme Court overlooked that

the issues were different in that in the previous case relied

upon it was never established where the calculator and

12

ledger were found. Nor was the alleged ledger even re-

ferred to in the previous case. Thus the state failed to

meet its burden of proof #« to the ledger which was intro-

duced in the instant case to connect the petition and the

co-defendant Ledesma with the marketing of illegal drugs.

In addition, these issues could not have been and were

not litigated in the previous case. See Gray v. State, supra,

OCGA 17-5-30 provides that after the motion to suppress

has been filed, ‘‘(t)he trial judge shall receive evidence

out of the presence of the jury on any issue of fact neces-

sary to determine the motion”. The failure to hold this

mandatory hearing is error, and the error was preserved

by the appellant’s objection to admission of the evidence

sought to be suppressed. Gray v. State, supra.

“Collateral Estoppel does not apply here, as the peti-

tion had a right to relitigate the same search at a subse-

quent trial. People v. Plevy, 417 N.E. 2d 518, 2 N.Y. 2d

58 (1980).

“The Sixth Amendment provides that ‘the accused shall

enjoy the right . . . to be confronted with the witnesses

against him.’ The right of confrontation encompasses the

right to cross examine and both are fundamental rights

of the accused binding upon the State by the Fourteenth

Amendment.” Pointer v. Texas, 380 U.S. 400, 85 S. Ct.

1065 (1964). A complete denial of cross-examination is

“constitutional error of the first magnitude.’’ Brookhart

v. Janis, 384 U.S. 1, 3 86 8. Ct. 1245 (1966).

“The right of cross-examination, thorough and sifting,

shall belong to every party as to the witnesses called

against him. If several parties to the same case shall have

distinct interest, each may exercise this right.” OCGA

24-9-64. Under the state law even an undue abridgement,

short of a complete denial as is the case here, is grounds

13

for reversal of a conviction. Ledford v. State, 89 Ga. App.

683 80 S.E. 2d 683 (1964); Holt v. State, 2 Ga. App. 383

58 S.E. 511 (1907).

Moreover the transcript itself is not sufficient to sus-

tain the State’s burden of proving the search and seizure

was lawful. See Lisky v. State, 156 Ga. App. 45, 46 274

S.E. 2d 89 (1980). The record did not contain the search

warrants or affidavit on which it was issued. The war-

rants and their supporting documentation were relevant

in that the petitioner’s challenge was that the officers’

scope of the execution of the searches and seizures under

the warrant was an unconstitutional delegation of au-

thority and the documents showed on their face they

were based on illegal wiretaps. Furthermore without even

examining these documents the Supreme Court of Geor-

gia upheld the searches based on the trial court’s consid-

eration of ‘“‘the search warrant and supporting affidavits

in determining there was sufficient probable cause to

authorize the searches.” (Slip Opinion page 6, Appendix

7a).

Conclusion

The denial of petitioner’s most basic right to due pro-

cess at both trial and appellate level requires the grant

of the petition and reversal.

CONCLUSION

The petition for a writ of certiorari should be granted

in that this case is controlled by Waller v. Georgia Case

No. 83-321, cert. granted 11/7/83.

Respectfully submitted,

Tuomas R. Moran

Cuares R. Situ

Attorneys for Petitioner

“tan - : :

ees. es

14

CERTIFICATE OF SERVICE

I, Charles R. Smith, Petitioner’s counsel of record, and

a member of the Bar of the Supreme Court of the United

States, certify that in accordance with the Rules of the

Supreme Court, | have this day served three true and

correct copies of this Petition for Writ of Certiorari upon

Respondent, by depositing three copies of this Petition

in the United States Mail, with adequate postage and

addressed to:

MICHAEL J. BOWERS

Attorney General

132 State Judicial Bldg.

40 Capitol Square

Atlanta, Georgia 30334

BEN OEHLERT

Assistant District Attorney

Fulton County Courthouse

Seventh Floor

136 Pryor Street

Atlanta, Georgia 30303

?

This4~ day ot Mthag 1984.

CHARLES R. SMITH

Attorney for Petitioner

APPENDICES

APPENDIX A

In the Supreme Court of Georgia

Decided: JAN. 5, 1984

40227. LEDESMA, et al v. STATE

40315. MERRITT v. STATE

GREGORY, Justice.

Miriam Billings Ledesma and Wesley Merritt were con-

victed of conspiring to sell cocaine in violation of the Geor-

gia Controlled Substances Act. The indictment charged

that appellants, along with three other named individ-

uals, ‘‘from the 22nd day of June 1982 through the 22nd

day of October 1982, did unlawfully conspire to violate

Schedule II of the Georgia Controlled Substances Act by

joining among themselves and others to sell cocaine, and

certain members of such conspiracy did sell cocaine in

violation of Schedule II of the Georgia Controlled Sub-

stances Act.’’ The three co-defendants entered guilty

pleas; two of them, Wesley Freeman and Joseph Down-

ing, testified against appellants at trial.

(1)(a) Appellants argue the trial court erred in deny-

ing their motions for directed verdicts of acquittal, OCGA

§ 17-9-1. Appellants maintain the State’s evidence failed

to prove a conspiracy took place within the time frame

alleged in the indictment. “In proving the time of the

commission of an offense the State is not, as a general

rule, restricted to proof of the date alleged in the indict-

ment but is permitted to prove its commission on any

date within the statute of limitations.’’ Grayson v. State,

39 Ga. App. 673 (148 SE 309) (1929); Price v. State, 247

Ga. 58, 59 n. 1 (273 SE2d 854) (1981). Where, however,

la

2a

the indictment specifically alleges the date of the offense

is material, the accused may be convicted only if the

State’s proof corresponds to the date alleged. Bloodworth

v. State, 128 Ga. App. 657 (197 SE2d 423) (1973); Price,

supra. The indictment in this case did not allege the dates

of the offense were material. We hold that so long as the

evidence shows the existence of a conspiracy as alleged

in the indictment, without regard to the dates alleged,

the State may offer any evidence relevant to the con-

spiracy during the statutory period of limitations.!

Here, the State’s evidence showed that in May, 1982

Derrick Brown committed an armed robbery in which

appellant Ledesma’s purse was taken. Following Brown's

arrest police recovered the purse. Inside it they found a

ledger cataloging drug-related transactions and a record

of monies owed her by persons to whom she supplied

drugs. At the trial of this case Brown testified that he

had observed Ledesma ‘‘cutting cocaine’ on a number

of occasions between December, 1981 and March, 1982.

Brown also admitted Ledesma had been his “‘source’’ for

cocaine since December, 1981.

Co-defendant Wesley Freeman testified “in the sum-

mer of 1982” he received drugs, which he subsequently

sold, from co-defendant Joseph Downing. According to

Freeman, appellant Ledesma supplied these drugs to

Downing. Freeman further.-testified that “in September

or October” of 1982 he observed appellant Ledesma sup-

ply drugs to co-defendant Delores Snead; Snead, in turn,

gave a portion of these drugs to Freeman to sell.

Co-defendant Joseph Downing testified that appellant

Ledesma supplied the drugs which he sold. He also testi-

fied that in September or early October of 1982 ? he heard

Wesley Freeman telephone appellant Merritt to arrange

3a

for the delivery of a package of cocaine.

Both Downing and Freeman admitted selling cocaine

during the alleged time of the conspiracy. At least one

sale by Freeman was corroborated at trial by the testi-

mony of an undercover police office.

An October 23, 1982 search of the Wes-Mer Chemical

Company, in which appellants Ledesma and Merritt were

corporate officers, disclosed substantial drug paraphe-

nalia and numerous plastic bags containing cocaine resi-

due. In Ledesma’s desk police found a drug-testing appa-

ratus and ledgers recounting drug transactions. The trial

court did not err in denying the motion for directed ver-

dict of acquittal. The evidence showed an established

organization, headed by Merritt and Ledesma, which

conducted seminars in drug sales techniques and supplied

cocaine to middlemen who, in turn, provided it to others

for sale ‘‘on the street.’’ This evidence meets the standard

set forth in Jackson v. Virginia, 443 U. 8S. 307 (99 SC

2781, 61 LE2d 560) (1979).

(b) Nor did the trial court err in denying appellant

Merritt’s motion for directed verdict on the ground that

the testimony of accomplices Downing and Freeman was

uncorroborated. Where two or more accomplices testify

at trial, the testimony of one accomplice may be corroro-

bated by the testimony of the other. Eubanks v. State,

240 Ga. 544(1) (242 SE2d 41) (1978). The drug papa-

phenalia recovered from Wes-Mer Chemical Company

and evidence showing Merritt’s association with two drug

. couriers provided additional corroboration, thus satisfy-

ing the requirement of Birt v. State, 236 Ga. 815 (225

SE2d 248) (1976).

(2) Following the May, 1982 armed robbery of her

home, Ledesma reported the incident to the police, in-

va

4a

cluding the fact that her purse had been taken by the

robber. She identified Derrick Brown as the robber and

gave police a description of him. Police subsequently ap-

prehended Brown who led them to a wooded location where

he had hidden Ledesma’s purse. Aceerding to police tes-

timony, the purse was inventoried for use in the armed

robbery charge against Brown; the officer conducting the

inventory testified that it was police procedure to inven-

tory recovered stolen property. During the inventory

police discovered ledgers detailing drug transactions.

Prior to the trial of this case Ledesma filed a motion to

suppress these drug ledgers. The trial court denied the

motion and the ledgers were admitted in evidence. We

find no Fourth Amendment violation. The police recov-

ered property which Ledesma reported stolen. A routine

police inventory was conducted to determine whether the

purse, in fact, belonged to Ledesma and whether the cur-

rency Ledesma had reported was in the bag remained

there. The police were in lawful possession of Ledesma’s

purse, and it was proper to make a good-faith inventory

of the contents. See, Johnson v. State, 23 Ariz. App. 64

(530 P2d 910) (1975). We hold that this search and sei-

zure was reasonable under the Fourth Amendment.

(3) Appellants argue the trial court erred in denying

Ledesma’s motion to suppress evidence seized in a search

of her car pursuant to an arrest on September 14, 1982.

As a result of this arrest Ledesma was convicted of poses-

sion of a firearm and violation of the Controlled Sub-

stances Act. This court affirmed, finding the motion to

suppress was properly denied. Ledesma v. State, # 39691

(Decided September 7, 1983).

Prior to the trial of this case Ledesma renewed her

motion to suppress the evidence seized as a result of the

5a

September 14 arrest. The trial court * declined to put the

State to its proof a second time, but permitted appellants

the opportunity to call witnesses or otherwise offer evi-

dence which would raise issues different from those raised

in the first motion to suppress. Appellants declined to do

so. We find no error.

(4) Appellant Merritt argues the trial court erred in

refusing to charge the jury that a witness may be im-

peached by proof of his conviction of a crime of moral

turpitude. The trial court instructed the jury that a wit-

ness may be impeached by contradictory statements or

by disproving facts he has testified to.

Over the State’s objection appellant was permitted to

elicit responses from Joseph Downing and Wesley Free-

man that each had prior felony convictions. Appellant

did not offer the records of these convictions in evidence.

This court has held, for the purposes of impeachment, the

prior conviction of an adverse witness cannot be shown

by cross-examination of the witness. To impeach a wit-

ness by a prior conviction the conviction must be proved

by the record of conviction itself, not by cross-examina-

tion. Timberlake v. State, 246 Ga. 488, 499 (271 SE2d 792)

(1980). Even though the trial court erroneously allowed

appellant to question the witnesses about past felony con-

victions, appellant is not entitled to the requested charge

on impeachment because he failed to offer the proper evi-

dence which would be the records of conviction.

(5) Appellents argue that their character was imper-

missibly placed in evidence twice during trial. Motions

for mistrial were made in each instance and denied by

the trial court.

(a) When asked by the State “in what capacity” he

had ever seen Ledesma in the company of a drug courier

6a

known as ‘“‘NeNe’’, Derrick Brown replied, ‘Just large

quantities of marijuana.’’ Appellants argue this put Ledes-

ma’s character in issue by bringing in evidence of an un-

proved crime. Brown’s statement was, however, relevant

to-prove Ledesma’s association with a drug courier whom

the State linked to the conspiracy. ‘Evidence relevant

to an issue in the case is not rendered inadmissible be-

cause it may incidentally impugn the character of an

accused where character is not otherwise in issue.’’ Duck

v. State, 250 Ga. 592, 598 (300 SE2d 121) (1983).

(6) On direct examination the State asked the officer

who arrested Ledesma on September 14, 1982 to identify

calculator tapes taken from Ledesma’s purse “without

going into the reason for the investigation” leading to his

possession of her purse. These calculator tapes contained

“names and figures” which the State argued were linked

to drug transactions made in furtherance of the conspir-

acy. On cross-examination this officer was asked if Ledes-

ma consented to the search of her purse. The officer an-

swered, ‘‘she was under arrest at the time, counselor.”

Ledesma argues the officer’s statement improperly intro-

duced evidence of another crime and was unresponsive to

her question. The trial court found that the question had

been asked to suggest a lack of authority to examine

Ledesma’s purse, and that the officer’s explanation of his

investigation was admissible. ‘‘Under the facts set forth

we do not think that the trial court erred in overruling

the ... motion for mistrial. The answer complained of

[was] responsive to questions propounded by the defense

consel . . . A trial court does not commit error by failing

to strike answers which are responsive or which explain

responsive answers.’’ Lemon v. State, 235 Ga. 74 (218

SE2d 818) (1975).

7a

(6)(a) Appellants argue the trial court erred in deny-

ing their motions to suppress evidence seized in three

searches conducted in October, 1982. It is not disputed

that electronic surveillance was used to gather injorma-

tion which, in part, established probable cause for the

warrants used to execute these searches. Appellants main-

tain the affidavits used to support the authorization of the

wiretaps were insufficient as a matter of law. They insist

this insufficiency renders the search warrants invalid.

The trial court conducted a hearing on this motion to

suppress, considering the affidavits used to support the

issuance of the wiretaps and receiving testir.. ny from the

trial judge who authorized the electronic .urveillance in

this case. Thereafter the trial court ruled that the wire-

taps were lawful. Appellants have not demonstrated to

this court in what respect the evidence before the autho-

rizing judge was insufficient. Absent a showing of error

to this court, the judgment of the trial court is presumed

to be correct. Miller Grading Contractors, Inc., v. Ga. Fed-

eral Savings & Loan, 247 Ga. 730 (279 SE2d 442) (1981);

Watson v. Stynchcombe, 240 Ga 169 (240 SE2d 56) (1977).

(b) Appellants argue that evidence obtained from the

electronic surveillance was not properly sealed as required

by OCGA § 16-11-64 (b)(8). Pretermitting a resolution

of the merits of this issue, we note that the remedy for a

violation of this section is to render the wiretap evidence

inadmissible. See Cor v. State, 152 Ga. App. 453 (263

SE2d 238) (1979). As appellants concede no wiretap evi-

dence was admitted at trial, we find no error.

(7)(a) Appellants next make a number of inter-related

attacks on OCGA § 17-5-21, which sets forth the scope

of a search pursuant to a warrant, and OCGA § 16-14

7(f), which authorizes the seizure of property subject to

8a

forfeiture under the Georgia Racketeer Influenced and

Corrupt Organizations Act (RICO).

According to appellants, a number of their “private

papers” were seized in violation of OCGA § 17-5-21 and

the Fourth Amendment to the United States Constituion

during the October, 1982 searches. These papers consist-

ed of a ledger reciting drug transactions; two desk calen-

dars recounting drug transactions and the name of a drug

courier; deposit slips for Wes-Mer Chemical Company

found at appellant Merritt’s real estate business; a busi-

ness license of Wes-Mer Chemical Company; and an em-

ployment contract between a third party and Wes-Mer

Chemical Company. Both the business license and con-

tract denominated appellant Merritt as a corporate offi-

cer in Wes-Mer Chemical Company, and both were found

during the search of Merritt Realty. Appellants maintain

the scope of the search warrants did not extend to the

seizure of these papers. These search warrants were not

offered in evidence and are not a part of this record.

Appellants submit that these papers were seized under

the purported authority of OCGA § 16-147 which per-

mits the seizure of ‘“‘all property of every kind used or

intended for use in the course of . . . a pattern of racke-

teering activity ...’’ Appellants insist that this statute

conflicts irreconcilably with both OCGA § 17-5-21 and

the Fourth Amendment which, appellants argue, do not

permit the seizure of private papers in absence of a war-

rant authorizing their seizure. We point out that OCGA

§ 17-5-21 does not preclude the seizure of private papers

not listed in the warrant where those papers are the in-

strumentalities of a crime and the search is otherwise

valid. Tuzman v. State, 145 Ga. App. 761 (244 SE2d 882)

(1978), cert. den. 439 U. S. 929 (99 SC 317, 58 LE2d

Qa

323). Nor does the Fourth Amendment preclude the sei-

zure of private papers under these circumstances. U. 8.

v. Couch, 648 F2d 938 (CA 4 1981), cert. den. ____ U.S.

__. (102 SC 491, 70 LE2d 259) (1981); Louie v. U. S.,

426 F2d 1398 (CA 9) (1970), cert. den. 400 U. S. 918

(91 SC 180, 27 LE2d 158); 79 ALR2d 1005.4 Further-

more, we hold that these documents are not private

papers. See, McCormick, Evidence (2d Ed.), § 170, pp.

380-381. See also, LaFave, Search and Seizure, § 2.6(e),

pp. 395-8. Appellants concede that these papers could

have been seized under the broad reach of OCGA § 16-

14-7(f). As we have determined that the seizure of these

papers contravened neither OCGA § 17-5-21 nor the

Fourth Amendment, we do not find the conflict urged by

appellants.

(b) This court has upheld the RICO statute against

the facial constitutional attack made here. Waller v. State,

251 Ga. i24 (___. SE2d ) (1983). There is no merit

to appellants’ contention that this statute gives law en-

forcement officers unbridled discretion to search for evi-

dence of illegal activity.

(8) The record indicates that at the hearing on the

motion to suppress evidence obtained in the October,

1982 searches, the trial court considered the search war-

rants and supporting affidavits in determining there was

sufficient probable cause to authorize the searches. The

failure to put the search warrants in evidence is not re-

versible error where appellants have not shown harm.

Merritt v. State, 121 Ga. App. 832 (175 SE2d 890) (1970).

(9) We have carefully examined appellants’ enumera-

tions of error regarding the correctness of the trial court’s

charge and find them to be without merit.

(10) Following their convictions in February, 1983,

10a

appellants filed motions for appeal bond. The trial court

denied the motions finding a substantial likelihood exist-

ed that appellants would commit other crimes if released.

Birge v. State, 238 Ga. 88 (230 SE2d 895) (1976). In their

briefs appellants state that they timely filed notices of

appeal from this decision, but later withdrew them. An

appeal of this issue is now untimely.

(11) In case # 40227, appellant Merritt appeals from

the denial of a subsequent motion for appeal bond. That

case is dismissed as moot.

Judgment affirmed. All the Justices concur, except Welt-

ner, J. not participating in case # 40315.

=

lla

ENDNOTES

' We point out that our holding here does not alter OCGA § 24-

3-5, which provides “‘After the fact of conspiracy is proved, the d 2c-

laration by any one of the conspirators during the pendancy of vhe

criminal project shall be admissible against all.”

* Downing testified that this conversation occurred “five or six

months” prior to trial. Trial commenced on February 9, 1983.

’ The record indicates the trial judge who ruled on the first motion

to suppress heard Ledesma’s motion to suppress in this case.

* For a discussion of Fourth Amendment implications where the

papers seized are not instrumentalities of a crime, see Lafave, Search

and Seizure, § 2.6(e), pp. 391-399.

40335

APPENDIX B

SUPREME COURT OF GEORGIA

ATLANTA, January 31, 1984

The Honorable Supreme Court met pursuant to ad-

journment. The following order was passed:

WESLEY MERRITT v. THE STATE

Upon consideration of the Motion for Rehearing filed

in this cuse, it is ordered that it be hereby denied. All the

Justices concur, except Weltner, J., not participating.

SUPREME COURT OF THE STATE OF GEORGIA,

CLERK’s OrFIce, ATLANTA, March 13, 1984

I certify that the above is a true extract from the min-

utes of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

/s/ Jouine B. Wititams-—_ Clerk.

lb

40315

APPENDIX C

SUPREME COURT OF GEORGIA

ATLANTA, February 17, 1984

The Honorable Supreme Court met pursuant to ad-

journment. The following order was passed:

WESLEY MERRITT V. THE STATE

Upon consideration of the Motion to Recall and Stay

the Remittitur filed in this case, it is ordered that it be

here>y granted.

The trial court is requested to vacate any judgment

entered on this court’s remittitur in this case and to re-

turn the remittitur to the clerk of this court.

SUPREME COURT OF THE STATE OF GEORGIA,

CieRk’s OrFIce, ATLANTA,

I certify that the above is a true extract from the min-

utes of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

/s/ Journe B. Wiiurams’~—_— Clerk.

le