Lead Opinion
Appellant was convicted of theft by taking. OCGA § 16-8-2.
1. The first question is whether the court erred by denying the motion for a directed verdict of acquittal because the evidence does not establish the offense.
Stated briefly, the evidence showed that Graddy contracted with appellant to build a laundry room in Graddy’s basement and paid $800 of the contract price at the time the contract was signed. When appellant did not commence the work pursuant to the contract, Graddy terminated the contract and appellant agreed to refund the
Byrd argues that the fact he did not commence the work within two days is not a sufficient basis on which to base a criminal conviction. However, appellant’s conviction was based instead on the theory that he was given $800 under an agreement to make a specified application of the funds, and knowingly converted them to his own use in violation of the agreement. This would constitute theft by conversion. OCGA § 16-8-4.
Appellant’s argument that the indictment charged the wrong offense, that is, theft by taking instead of theft by deception, fails. The phrase “regardless of the manner in which the property is taken or appropriated,” found in the theft-by-taking statute, “renders the section sufficiently broad to encompass thefts or larcenies perpetrated by deception . . . and theft by conversion . . .” Jones v. State,
The evidence would be sufficient to meet the standard of proof required by Jackson v. Virginia,
2. Appellant alleges error in allowing evidence concerning a mediation proceeding undertaken at the instance of the state court, criminal division, at which appellant signed an agreement to repay Graddy $800, plus interest.
We first point out that the evidence complained about related to mediation and not arbitration, although the parties sometimes erroneously referred to the process they were speaking of as “arbitration.” There are vast differences between the two, but they need not be described at length here. For an arbitration procedure, see OCGA Title 9, Chapter 9.
As established by the record in this case, the parties were directed to the Neighborhood Justice Center of Atlanta, Inc., by the
By allowing this alternative dispute resolution effort to be evidenced in the subsequent criminal trial, the trial court’s ruling eliminates its usefulness. For no criminal defendant will agree to “work things out” and compromise his position if he knows that any inference of responsibility arising from what he says and does in the mediation process will be admissible as an admission of guilt in the criminal proceeding which will eventualize if mediation fails.
As succinctly stated by Rice with respect to confidentiality, supra at 75 and 80, “The policy is to encourage settlements, but admission of statements made during negotiations tends to defeat that objective . . . Unless [the programs] can assure confidentiality, the programs will be unable to create the atmosphere of openness that is necessary for successful dispute resolution.” Directly to the point, and backed up through demonstration, is Friedman’s statement in the article “Protection of Confidentiality in the Mediation of Minor Disputes,” 11 Capital Univ. Law Review 182, 191: “The integrity of mediation programs is in jeopardy, however, without confidentiality for the proceedings.” See Fed. Rules Evid. 408, 28 USCA; “Protecting Confidentiality in Mediation,” 98 Harv. L. Rev. 441 (1984).
The Federal Rule of Criminal Procedure 11 (e) (6), 18 USCA, protects statements and conduct made in negotiations and plea bargains in criminal cases except in very limited circumstances, as does the 1987 Texas Alternative Dispute Resolution Procedures Act, Sec. 154.073.
The policy reasons for excluding offers of compromise from later court proceedings are synthesized by Friedman, supra at 205, and are particularly applicable here: “(1) offers of compromise are privileged because public policy encourages the settlement of disputes without trial; (2) such offers are irrelevant because they are not intended as admissions; and (3) the negotiation process establishes express or implied agreements that admissions made during negotiations will be excluded and courts will enforce those agreements.” The concept of pretrial diversion programs is part of the public policy of the state. See OCGA § 42-8-80.
In the instant case, as is standard in these referrals, defendant’s mediation-related statements and actions were not made with any
Just as a withdrawn plea of guilty “shall not be admissible as evidence against [defendant] at his trial,” OCGA § 17-7-93 (b), so too must be the words and actions which defendant undertakes in an effort to comply with the court’s direction that mediation be pursued to resolve the pending criminal matter.
A new trial is required because we cannot conclude that the inadmissible evidence did not contribute to reaching the verdict. The nature of the evidence and its relation to the charge and the defense render it not harmless. This is so because incriminatory statements tend to establish guilt, Hunter v. State,
3. Enumerations 3 through 6 relate to incidents which are unlikely to recur at retrial and thus need not be ruled on. Piercy v. State,
4. Appellant’s next six enumerations of error relate to allegedly erroneous charges by the court. Since they may be repeated in the new trial, we consider them. OCGA § 5-6-34 (c).
a. Appellant attacks the court’s charge on the meaning and effect of a plea of not guilty. The court charged that such a plea is not evidence, and that by entering such a plea, defendant placed the burden of proof on the State. The court also charged that defendant entered the case with a presumption of innocence, “giving him a slight weight in his favor.” The quoted portion of the charge is claimed to be error.
If the court had stopped at that point, its charge might be construed as error. However, it explained that the charge meant that if the jury voted at the beginning of trial there would be only one verdict — not guilty — because there is a presumption of innocence in appellant’s favor, and as the evidence is presented, it becomes a question for the jury to determine whether the evidence is sufficient to overcome the presumption. Shortly thereafter, the court also charged the jury again on the presumption of innocence, stating that the pre
Thus, even if the few words objected to might be erroneous, the charge as a whole must be considered harmless and nonprejudicial. City Dodge v. Gardner,
b. Next at appellant’s request we review the court’s charge on conflicting testimony of witnesses and impeachment of witnesses. They were given substantially in the language found in Volume 2, Suggested Pattern Jury Instructions, Criminal Cases, at pages 12, 37, and 38.
Contrary to appellant’s assertion, the court did not instruct on perjury by witnesses. Rather, in its charge on conflicting testimony, the court stated it was the jury’s duty to reconcile conflicting evidence “so as to make all the witnesses speak the truth and perjury be imputed to none of them.” The pattern instructions provide that it is the duty of the jury to resolve conflicts “without believing that any witness made a false statement.” Id. at 12. Since a witness under oath who knowingly and wilfully makes a false statement in a judicial proceeding commits the offense of perjury, OCGA § 16-10-70 (a), the phrases “so perjury be imputed to none of them” and “without believing that any witness made a false statement” have the same meaning. Thus, there was no error as respects conflicting testimony.
Appellant’s argument that it was error to charge on impeachment of witnesses, because no witness was impeached, is without merit. The court stated that if any effort had been made to impeach a witness it was for the jury to determine if the effort had been successful. Thus, the charge was qualified to apply only if an effort had been made to impeach a witness.
Further, assuming impeachment was not in issue, an erroneous charge touching on a matter not in issue under the evidence, unless prejudicial or harmful as revealed by the entire record, does not require or demand reversal. Davis v. State,
c. We find no error in the court’s charge on reasonable doubt. Appellant again has taken one statement out of the entire charge on reasonable doubt, and the charge as a whole was correct. Spencer, supra.
d. Appellant alleges error in the court’s explanation to the jury of
e. Appellant’s complaint as to the charge on theft by taking is based on his contention that he was improperly charged with theft by taking, rather than theft by deception or theft by conversion. Division 1 effectively disposes of this enumeration.
5. Lastly, we cannot agree that it was error to send the indictment out with the jury, including the names of the grand jurors who returned the indictment. Appellant cites no authority in support of this contention. It has always been the practice in this State to permit the jury to have in their room the indictment in a criminal case. Salem v. State,
Judgment reversed.
Notes
See also Barrett, “Arbitration as a Strategic Alternative,” 33 The Atlanta Lawyer 15 (Winter 1988).
Dissenting Opinion
dissenting.
I respectfully dissent. “Any statement or conduct of a person, indicating a consciousness of guilt, where such person is, at the time or thereafter, charged with or suspected of the crime, is admissible against him upon his trial for committing it.” Hixon v. State,
This court decides cases based on Georgia law, not on the Federal Rules of Evidence or law review articles expressing the author’s personal opinion on specific subjects. It is only when there is no authority in Georgia on a given issue that we look to foreign jurisdictions or possibly legal encyclopedias to resolve the issue. As seen from the
United States v. Gullo, 672 FSupp. 99, 103, supra, does not support the statement in the majority that a serious Fifth and Fourteenth Amendments Miranda problem is created by admission of the objected-to evidence. On the contrary, Gullo held specifically that the introduction into evidence of Gullo’s statements made during arbitration did not violate his constitutional rights under the Fifth and Fourteenth Amendments, and did not render his statements involuntary. Id. The basis of the holding in Gullo that evidence from the arbitration proceeding was not admissible was the fact that a New York statute specifically provided that statements made during arbitration would be confidential, and could not be used against a person in subsequent legal proceedings. The New York statute obviously has no application here.
The mediation proceedings in this case occurred while appellant was under criminal charges, and his conduct in signing a mediation agreement acknowledging his liability is conduct indicating a consciousness of guilt. Hence, under the rule enunciated repeatedly in the cases cited above, the evidence was admissible as bearing on appellant’s guilt or innocence. Accordingly, I would affirm appellant’s conviction.
I am authorized to state that Presiding Judge McMurray and Presiding Judge Banke join in this dissent.