RANSOM v. RANSOM (two cases)
41194, 41347
Supreme Court of Georgia
JANUARY 7, 1985
324 SE2d 437
We have reviewed the file and accept, concur in, and adopt the recommendation of the State Disciplinary Board. We therefore accept Freemont‘s voluntary surrender of her license, which is equivalent to disbarment, In the Matter of Tew, 249 Ga. 587 (292 SE2d 721) (1982); In the Matter of Wiener, 251 Ga. 647 (308 SE2d 373) (1983), and order that she be readmitted to the State Bar of Georgia only upon compliance with the reinstatement rules of the State Bar of Georgia in effect at the time of any petition for reinstatement she may file in the future.
Voluntary surrender of license accepted. All the Justices concur, except Smith, J., not participating.
DECIDED JANUARY 7, 1985.
Omer W. Franklin, Jr., General Counsel State Bar, Bridget B. Bagley, Assistant General Counsel State Bar, for State Bar of Georgia.
Cook & Palmour, Bobby Lee Cook, for Freemont.
PER CURIAM.
While husband and wife were residing together, husband tape-recorded telephone conversations wife conducted in the marital residence, concededly without wife‘s consent or knowledge. Wife subsequently filed suit for divorce. During discovery she became aware for the first time that husband possessed tape-recordings of her telephone conversations and intended to use them at the divorce trial to prove her infidelity during the marriage. Wife then filed a motion in limine, on the basis of
The trial court entered an order prohibiting use of the contents
Both husband and wife filed applications for interlocutory appeal which this court granted. In case no. 41194, wife appeals that portion of the trial court‘s order allowing use of the tapes at trial for impeachment purposes. In case no. 41347, the husband contests the trial court‘s ruling that no use may be made at trial of the tapes except for impeachment.
1. We must first decide whether the legislature intended for
Husband points out that at least one court has recognized an implied exemption for domestic situations from the federal wiretapping statute,
“A cardinal rule of statutory construction is that courts must look to the purpose and intent of the legislature and construe statutes so as to implement that intent.” Enfinger v. Intl. Indem. Co., 253 Ga. 185 (317 SE2d 816) (1984); Wilson v. Bd. of Regents, 246 Ga. 649, 650 (272 SE2d 496) (1980).
Code Ann. § 26-2002 was recodified without substantial change as Code Ann. § 26-3001 with the revision of the Criminal Code of Georgia in 1968. In 1976 that section was amended “to provide that certain activities shall not be unlawful,” Ga. L. 1976, p. 1100, § 1. Neither eavesdropping nor wiretapping in a domestic situation were listed among these exclusions.
We conclude from our reading of this legislative history that the legislature intended for the statute to apply to protect all persons from invasions upon their privacy, including invasions made upon the privacy of one spouse by the other in a private place. The legislature has not drawn an exception from the statute‘s prohibition for one who, in a clandestine manner, records the private telephone conversations of his spouse which occur in a private place, and we decline to do so.
2. Husband also argues that wife has waived her right of privacy by conducting lascivious conversations in the marital home. Pretermitting a determination of whether, under the circumstances suggested by husband, one may waive his or her right of privacy, we note that the record in this case does not disclose the contents of the tape recordings. We are unable to say on the record before us that wife waived her right of privacy.
3. Wife‘s sole complaint is the trial court erred in ruling that the
Judgment affirmed in case no. 41347. All the Justices concur.
Judgment reversed in case no. 41194. All the Justices concur, except Marshall, P. J., and Gregory, J., who dissent.
DECIDED JANUARY 7, 1985.
Surrett, Choate & Walker, Carl J. Surrett, for appellant.
Michael C. Garrett, I. Seamon Williams, for appellee.
GREGORY, Justice, dissenting.
While I agree with the result reached by the majority in case no. 41347, I respectfully dissent to the result reached in case no. 41194 (Division 3).
In Harris v. New York, 401 U. S. 222 (91 SC 643, 28 LE2d 1) (1971), the United States Supreme Court ruled that a statement made by a criminal defendant which was inadmissible because it violated Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), could nonetheless be used to impeach the defendant if he testified to the contrary at trial. In United States v. Havens, 446 U. S. 620 (100 SC 1912, 64 LE2d 559) (1980), the Court held that evidence illegally seized from a criminal defendant in violation of the Fourth Amendment and suppressed from the government‘s case-in-chief could be used to impeach that defendant at trial. The Court held that the ends of the exclusionary rules of Miranda and the Fourth Amendment were “adequately implemented by denying the government the use of the challenged evidence to make out its case in chief. The incremental furthering of those ends by forbidding impeachment of the defendant who testifies [is] deemed insufficient to permit or require that false testimony go unchallenged, with the resulting impairment of the integrity of the factfinding goals of the criminal trial.” 446 U. S. at 627. The Court noted that the shields provided by these exclusionary rules should not “be perverted into a license to use perjury
I recognize that in both Harris and Havens, the Supreme Court was dealing with judicially created exclusionary rules and was, therefore, free to fashion the limitations on these rules. I acknowledge that this court is here presented with a statute which, on its face, purports to exclude any use of evidence obtained in violation of
I would hold that in enacting
I would hold, therefore, that while the tape-recordings husband obtained in violation of
I am authorized to state that Presiding Justice Marshall joins in this dissent.
Notes
“Except as otherwise specifically provided in this chapter any person who -
(a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication;
(b) willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when -
(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire connection; or
(ii) such device transmits communications by radio, or interferes with the transmission of such communication; or
(iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or for- eign commerce; or
(v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;
(c) willfully discloses, or endeavors to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsec- tion; or
(d) willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the intercep- tion of a wire or oral communication in violation of this subsection;
shall be fined not more than $10,000 or imprisoned not more than five years, or both.”
In Simpson v. Simpson, 490 F2d 803 (5th Cir. 1974), the Fifth Circuit recognized that “The naked language of Title III, by virtue of its inclusiveness, reaches [the situation where one spouse records the telephone conversations of the other without knowledge or consent]. However, we are of the opinion that Congress did not intend such a far-reaching result, one extending into areas normally left to states, those of the marital homes and domestic conflicts.” 490 F2d at 805. See generally Baumrind v. Ewing, 279 SE2d 359 (SCt. S.C. 1981), following Simpson. Simpson has, however, been criticized in a number of other jurisdictions, which have held that