327 Ga. App. 815
Ga. Ct. App.2014Background
- Sullivan was tried by jury and convicted of influencing a witness (conviction on second count affirmed; first count directed verdict). He had previously been accused of rape and hired a private investigator for his defense.
- The investigator met with witness/intermediary Jimmy Roberts, who volunteered to approach the victim about dropping charges and suggested offering money; Roberts contacted the victim and later wore a recording device at law-enforcement direction.
- Sullivan met with Roberts, displayed large amounts of cash, told Roberts he wanted the charges gone, indicated "money is not a problem," and provided a tape recorder for Roberts’ meeting with the victim; Sullivan later told Roberts he did not intend to pay and wanted recorded proof the victim would accept money.
- Roberts and Sullivan’s wife pleaded guilty to influencing a witness and testified for the State; law enforcement intercepted meetings and recordings; Roberts was arrested after meeting the victim while wearing a wire.
- At trial the State introduced portions of communications between Sullivan and his private investigator over Sullivan’s objection (the court found crime-fraud exception applied); the court limited Sullivan’s use of his own recorded statements with Roberts for impeachment.
- Sullivan appealed claiming (1) erroneous admission of private-investigator testimony (privilege), (2) erroneous restriction on impeachment using his audiotapes, and (3) insufficiency of the evidence to sustain conviction. The court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of investigator’s testimony — attorney-client privilege / crime-fraud exception | Sullivan: communications with private investigator were privileged and inadmissible | State: communications fell within crime-fraud exception because they related to ongoing plan to influence witness | Court: crime-fraud exception applied (or any error harmless/cumulative); admission proper |
| Restriction on use of defendant’s audiotape for impeachment | Sullivan: trial court improperly barred use of his recorded statements to impeach Roberts | State: Sullivan’s own statements would be hearsay/self-serving unless he testified; court’s limitation proper | Court: even if exclusion erred, error harmless beyond a reasonable doubt because equivalent impeachment evidence was admitted |
| Sufficiency of evidence to convict as party to influencing a witness | Sullivan: insufficient evidence that he offered/used benefit or intended to deter testimony | State: Sullivan encouraged/procured Roberts, showed cash, instructed continuation of scheme — liable as party | Court: evidence sufficient to convict under OCGA §16-10-93(a) as a party to the crime |
Key Cases Cited
- In re Fulton County Grand Jury Proceedings, 244 Ga. App. 380 (crime-fraud exception applies to communications made to further illegal scheme)
- Revera v. State, 223 Ga. App. 450 (privilege extends to communications with investigator employed by counsel)
- United States v. Neal, 27 F.3d 1035 (5th Cir.) (crime-fraud exception where attorney advised scheme was illegal and wanted no part)
- In re Grand Jury Subpoena, 745 F.3d 681 (3d Cir.) (crime-fraud exception analysis; no need to prove crime, prima facie showing required)
- Gaither v. State, 259 Ga. 200 (harmless-error doctrine where excluded impeachment would have been cumulative)