State v. CohenState v. Cohen
Lead Opinion
According to the briefs, Mye Brindle worked as a housekeeper and personal assistant to Joe Rogers, who was married. During her employment with Rogers, the two became
After extensive civil litigation between Rogers and Brindle that is not relevant to the current appeal, on June 17, 2016, Brindle and her attorneys (hereinafter collectively referred to as the “defendants”) were charged in the Superior Court of Fulton County with conspiracy to commit extortion under
The State appeals from this ruling, and, for the reasons that follow, we conclude that (1) while the trial court properly dismissed Count 1 of the indictment, the trial court erred by reaching the constitutional issue relating to
1. The State contends that the trial court erred in granting the defendants’ general demurrer to Count 1 of the indictment. We disagree.
“A general demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment. [Cits.]” Bramblett v. State,
The true test of the sufficiency of an indictment that will withstand a general demurrer is as follows: If all the facts which the indictment charges can be admitted [as true], and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premises, the guilt of the accused follows as a legal conclusion, the indictment is good.
(Citations and punctuation omitted.) Lowe v. State,
Count 1 of the indictment states that the defendants were being charged
with the offense of CONSPIRACY TO COMMIT A FELONY O.C.G.A. § 16-4-8,[7 ] for the said accused, in the County of Fulton and State of Georgia, on the 6th day of June, 2012, did unlawfully, together, conspire to commit the crime of EXTORTION O.C.G.A.§16-8-16 , and at least one of those persons did an overt act to effect the object of said conspiracy, to wit:
OVERT ACTS
1.
On or about the 3rd day of June, 2012, JOHN BUTTERS, an attorney authorized to practice law in Georgia, contacted Thomas Hawkins, a private investigator, to arrange a meeting to discuss making a covert video recording of a wealthy individual without that person’s knowledge or consent.
2.
On or about the 4th day of June, 2012, attorneys JOHN BUTTERS and DAVID COHEN met with private investigators Michael Deegan and Thomas Hawkins at the offices of Hawk Private Investigations (“Hawk PI.”) in Fulton County to discuss making a covert video recording of a wealthy person inside his residence without that person’s knowledge or consent. BUTTERS and COHEN did not reveal the name of the wealthy person.
3.
At the conclusion of this meeting, Michael Deegan and Thomas Hawkins agreed to help JOHN BUTTERS and DAVID COHEN purchase the spy camera even after expressly stating to BUTTERS and COHEN that it would be illegal to covertly record someone in their residence without that person’s knowledge or consent.
4.
On or about the 6th day of June, 2012, attorneys JOHN BUTTERS and DAVID COHEN met with investigator Michael Deegan a second time at the offices of Hawk P.I. in Fulton County. Accompanying BUTTERS and COHEN to this meeting was a person they identified as their client “Sam” and another person they identified as “Sam’s mother.” The purpose of this meeting was to further discuss the making of a covert video recording of a wealthy individual without that person’s knowledge or consent.
5.
At the conclusion of the meeting at the offices of Hawk P.I. in Fulton County,DAVID COHEN purchased a spy camera made to look like a cell phone and designed to create covert video recordings.
6.
On or about the 11th day of June, 2012, Michael Deegan delivered the spy camera to MYE BRINDLE, the person previously identified as “Sam,” and showed her how to use it.
7.
On or about the 20th day of June, 2012, MYE BRINDLE secretly videotaped the victim, later identified as JOE ROGERS, without his knowledge or consent, naked in the bathroom of his residence at [his home address] in Fulton County.
8.
On or about the 20th day of June, 2012, MYE BRINDLE secretly videotaped JOE ROGERS, without his knowledge or consent, naked in the bedroom of his residence. . . .
9.
On or about the 20th day of June, 2012, MYE BRINDLE secretly videotaped a sexual encounter between her and JOE ROGERS, without his knowledge or consent, which took place in the bedroom of his residence. . . .
10.
On or about the 22nd day of June, 2012, MYE BRINDLE delivered the spy camera and the video recordings referenced in Overt Acts 7 through 9 to Michael Deegan.
11.
On or about the 22nd day of June, 2012, Michael Deegan had the video recording made by MYE BRINDLE of JOE ROGERS on June 20, 2012 placed on DVD(s) and then delivered the DVD(s) to DAVID COHEN in Marietta, Georgia.
12.
On or about the 16th day of July, 2012, DAVID COHEN sent a letter to JOE ROGERS threatening a lawsuit on behalf of MYE BRINDLE. Saidletter stated that there were “[n]umerous audio and video recordings” of sexual harassment and abuse by ROGERS upon BRINDLE. This letter sought to settle the matter before public litigation so that Joe Rogers may avoid potential “media attention . . . intrusive governmental investigations, Department of Justice, Attorneys General or SEC involvement, as well as civil and criminal charges . . .
13.
On or about the 2nd day of August, 2012, JOHN BUTTERS, DAVID COHEN, and Hylton Dupree, attorneys for MYE BRINDLE met with Robert Ingram and Jeffrey Daxe, attorneys for JOE ROGERS, to discuss the claims listed in the July 16, 2012 letter addressed to ROGERS. COHEN played an edited video of the sexual encounter that was secretly recorded by MYE BRINDLE on June 20, 2012, in the bedroom of Joe Rogers’ residence, without his knowledge or consent, at [his home address] in Fulton County. BUTTERS informed Robert Ingram and Jeffrey Daxe that MYE BRINDLE wanted “millions” of dollars to settle her claim.
14.
On or about the 2nd day of August, 2012, DAVID COHEN told attorneys Robert Ingram and Jeffrey Daxe that he possessed videos of other sexual encounters between JOE ROGERS and MYE BRINDLE. Said statements made by COHEN furthered the extortion plot by asserting that there was another embarrassing video of ROGERS, which would tend to subject ROGERS to even more contempt and ridicule.
15.
On or about the 14th day of September, 2012, mediation was held in which, JOHN BUTTERS, DAVID COHEN, and Hylton Dupree asked for twelve million dollars to settle MYE BRINDLE’S claims which they argued were supported by the June 20, 2012 video of JOE ROGERS taken without his knowledge or consent.
16.
On or aboutthe 19th day ofSeptember, 2012, DAVID COHEN filed a civil lawsuit in Fulton County on behalf of MYE BRINDLE, which stated that BRINDLE “made audio and video recordings of some of the incidents of sexual harassment and battery” which occurred in Fulton County and at Sea Island in Glynn County, Georgia.
17.
On or about midnight of the 28th day of September, 2012, MYE BRINDLE and one of her attorneys went to the Atlanta Police Department, hours before a court order sealing the record in Cobb County took effect, to report that JOE ROGERS physically forced himself sexually upon BRINDLE on numerous occasions.
18.
On or about the 9th day of October, 2012, the Honorable Judge Susan Forsling of Fulton County State Court, questioned DAVID COHEN during a hearing about the existence of another covert videotape of JOE ROGERS and MYE BRINDLE engaged in a sexual encounter. COHEN responded that ROGERS was “[pjartially naked” in the videotape. Said statements made by COHEN furthered the extortion plot by asserting that there was another embarrassing video of ROGERS, which would tend to subject ROGERS to even more contempt and ridicule.
19.
On or about the 24th day of October, 2012, JOHN BUTTERS, DAVID COHEN, and MYE BRINDLE served discovery requests on JOE ROGERS asking him to admit that a particular video recording labeled as “Exhibit 1 hereto is a true and correct video recording of a sexual encounter involving ROGERS and BRINDLE at the Roger’s [sic] Sea Island residence.” Said request was made by BUTTERS and COHEN to further the extortion plot by asserting that there was another embarrassing video of ROGERS, which would tend to subject ROGERS to even more contempt and ridicule.
Said offense in the County of Fulton and State of Georgia — contrary to the laws of said State, the good order, peace and dignity thereof[.]
With respect to the alleged crime that formed the basis for the purported conspiracy under Count 1 in this case:
A person commits the offense of theft by extortion when he unlawfully obtains property of or from another person by threatening to . . . [d]isseminate any information tending to subject any person to hatred, contempt, or ridicule or to impair his credit or business repute.
(Emphasis supplied.)
The alleged threat in this case is covered in “Overt Act number 12 of Count 1,” which, again, states that
[o]nor about the 16th day of July, 2012, DAVID COHEN sent a letter to JOE ROGERS threatening a lawsuit on behalf of MYE BRINDLE[, and that this] letter stated that there were “[n]umerous audio and video recordings” of sexual harassment and abuse by ROGERS upon BRINDLE. This letter sought to settle the matter before public litigation so that Joe Rogers may avoid potential “media attention . . . intrusive governmental investigations, Department of Justice, Attorneys General or SEC involvement, as well as civil and criminal charges . . .
(Emphasis supplied.) From the plain language of the indictment, the alleged threat here was to file a lawsuit against Rogers and use the video as evidence in a court of law in the context of possible litigation. The indictment does not allege any threat (express or implied) to release the information to anyone
However, because any threat to “[disseminate any information tending to subject [another] person to hatred, contempt, or ridicule or to impair his credit or business repute” could, in theory, amount to extortion under
Our construction of
Because the alleged extortion in this case was based on a mere threat to file a lawsuit, and because there is no allegation in the indictment that the threatened litigation itself was somehow unlawful, the defendants could admit to all of the allegations in Count 1 of the indictment and still be innocent of the crime of conspiracy to commit extortion.
Count. See Lowe, supra. In light of the trial court’s proper conclusion that Count 1 of the indictment failed to sufficiently allege a crime against the defendants under
2. The State also urges that the trial court erred in granting the defendants’ general demurrer to Counts 2-4 of the indictment. With respect to these Counts, the State is correct.
Count 2 of the indictment charged the defendants with
CONSPIRACY TO COMMIT A FELONY O.C.G.A. §16-4-8, for the said accused, in the County of Fulton and State of Georgia, on the 20th day of June, 2012, did unlawfully, together, conspire to commit the crime of UNLAWFUL EAVESDROPPING OR SURVEILLANCE O.C.G.A.§ 16-11-62 , and at least one of [the defendants] did [one of the Overt Acts alleged in numbers 1-13 of Count 1] to effect the object of said conspiracy[.]
Count 3 charged the defendants with
UNLAWFUL EAVESDROPPING OR SURVEILLANCE O.C.G.A.§16-11-62 , for the said accused, in the County of Fulton and State of Georgia, on the 20th day of June, 2012, through the use of a SPY CAMERA, a device, without the consent of all persons observed, did unlawfully record the activities of JOE ROGERS which occurred at [his home address], a private place, out of the public view[.]
Finally, Count 4 charged Brindle individually with
UNLAWFUL EAVESDROPPING OR SURVEILLANCE O.C.G.A.§16-11-62 , for the said accused, in the County of Fulton and State of Georgia, on the 20th day of June, 2012, through the use of a SPY CAMERA, a device, without the consent of all persons observed, did unlawfully record the activities of KATHERINE MARIE MAYNARD which occurred at [Rogers’ home address], a private place, out of the public view[.]
All of these Counts, whether based on a conspiracy involving a prior agreement and certain overt acts or based on direct violations of
[i]t shall be unlawful for .. . [a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view [except where certain statutory exceptions contained in subsections (2) (A)-(D) apply].
The defendants contend that no violation of
(a)
Under the plain language of
However, the defendants contend that they were not legally required to obtain the consent of “all” of the persons being video recorded as required by the plain language of
[n]othing in CodeSection 16-11-62 shall prohibit a person from intercepting a wire, oral, or electronic communication where such person is a party to the communication or one of the parties to the commun ication has given prior consent to such interception.
(Emphasis supplied.) By its terms,
The indictment here does not fail based on
(b) The indictment sufficiently alleges that the video recording took place in a private place and outside of the public view.
As stated above, pursuant to
At the time Brindle secretly video recorded Rogers and another person in Rogers’ home in June 2012, a “private place” for purposes of
Although there is nothing in the plain language of former
[T]he notion of a “private place” focuses on the presence of a reasonable expectation of privacy rather than the generic category of location. In doubtful cases, it is left to the court to determine in functional terms whether the [surveillance] occurred in a “private place” sufficient to invoke the provisions of [the anti-surveillance statute].
Model Penal Code Part II Commentaries, vol. 3, at 434. In this regard,
the application of the F ourth Amendment depends on whether the person invoking its protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy” that has been invaded_This inquiry... normally embraces two discrete questions. The first is whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy — whether . . . the individual has shown that he seeks to preserve something as private. The second question is whether the individual’s subjective expectation of privacy is one that society is prepared to recognize as reasonable .. . — whether . . . the individual’s expectation, viewed objectively, is “justifiable” under the circumstances.
(Citations and punctuation omitted.) Smith v. Maryland,
For Fourth Amendment purposes, one who begins with a reasonable expectation of privacy in a particular area such as his or her residence can lose that expectation of privacy by inviting a guest into that otherwise private place. See, e.g., United States v. Davis,
Here, the indictment as written does not establish that Brindle was not a member of or akin to being a member of Rogers’ household; it indicates that Brindle was not a stranger or casual guest to Rogers or the residence in Fulton County where the alleged video recording took place. In fact, the indictment emphasized that Brindle’s attorneys allegedly had “[n]umerous audio and video recordings” of sexual encounters between Brindle and Rogers;
[I]t shall not be unlawful . . . [f]or a law enforcement officer or his or her agent to use a device in the lawful performance of his or her official duties to observe, photograph, videotape, or record the activities of persons that occur in the presence of such officer or his or her agent.
3. The trial court also erred in concluding that
Judgment affirmed in part, reversed in part, and vacated in part.
Notes
The parties dispute the extent to which this relationship was consensual. Rogers claims that the relationship was consensual, whereas Brindle went to police in late September 2012 to report that Rogers had forced himself upon her sexually on numerous occasions.
The demand letter does not appear in the record.
Count 4 of the indictment, relating only to Brindle, involved the recording of another individual who was also at Rogers’ home on the day that Brindle was recording the sexual encounter with Rogers.
“A person commits the offense of theft by extortion when he unlawfully obtains property of or from another person by threatening to... [djisseminate any information tending to subject any person to hatred, contempt, or ridicule or to impair his credit or business repute.”
“It shall be unlawful for . . . [a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view [except where certain statutory exceptions contained in subsections (2) (A)-(D) apply].”
“Nothing in Code
“A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.”
In this regard, we note that the remaining Overt Acts mentioned in Count 1 that deal with the creation and existence of alleged secret recordings and efforts to settle the case before commencing litigation also do not contain any agreement to threaten Rogers with the release of the recordings outside of litigation.
This is not to say that a charge of extortion could not be “based on intentional falsehoods or on knowingly frivolous claims.” See Bill Johnson’s Restauran ts v. Nat. Labor Relations Bd.,
In this regard,
The statute was amended in 2015 to define “private place” as “a place where there is a reasonable expectation of privacy.”
This is not to say, however, that our analysis of one’s reasonable expectation to be safe from “hostile or intrusive surveillance” under the former version of
We note that this case has nothing to do with a person inviting police or other government officials into his home by consenting to a search or for other purposes. However, to the extent that
We note that, although the indictment alleges that Brindle’s attorneys characterized the relationship between Rogers and Brindle as non-consensual, the indictment does not state that this characterization was true or that the actual sexual relationship between Rogers and Brindle was not consensual. If the indictment showed that the sexual relationship in this case was not consensual, our analysis might be different.
We need not address the Appellees’ argument that Rogers no longer had a reasonable expectation of privacy because he was carrying on an adulterous relationship with Brindle, because there is no allegation in the indictment that the relationship between Rogers and Brindle was adulterous.
Concurrence Opinion
concurring in part and concurring specially in part.
I concur fully in Divisions 1, 2 (a), and 3 of the Court’s opinion. As for Division 2 (b), I agree with the Court’s result but not all of its reasoning. It should be emphasized as to the result that we are now reviewing a general demurrer to the indictment, which limits us to the allegations of the indictment and requires us to treat them as true. With regard to the unlawful surveillance charges we allow to stand, the analysis might be different if we ever consider a full evidentiary record after trial.
Most significantly, I have serious doubts about looking even for guidance to modern “reasonable expectation of privacy” F ourth Amendment jurisprudence in interpreting the pre-2015 statutory language defining a “private place” for purposes of
Nevertheless, without acknowledging the real roots of former
I do not agree with everything said in the text and footnotes of Division 2 (b), but it reaches the right result, so I concur specially in that portion of the Court’s opinion.
Concurrence Opinion
concurring specially
I do not agree with all that is said in the opinion for the Court, and so, I do not join it. I do agree, however, that the indictment is not sufficient to survive a general demurrer
As for the unlawful surveillance counts, I agree that they survive a general demurrer. Irrespective of whether Rogers had a reasonable expectation of privacy under the Fourth Amendment in the place in which he was subjected to video recording, it appears from the facts alleged in the indictment that he had a reasonable expectation that he would not be subjected to casual or hostile photographic or video surveillance in that place. The State has adequately alleged that Rogers was in a private place under former
I am authorized to state that Justice Hunstein and Justice Peterson join this special concurrence.
A simple hypothetical illustrates my understanding of the extortion statute. Like threats to disseminate embarrassing information, threats to accuse someone of a crime may, if used to obtain property from another, amount to extortion. See
Concurrence Opinion
concurring specially in part.
While I do not agree with all that is said in Division 2 (b) of the Court’s opinion (and thus cannot join it), I do agree in full with the following statement: “[Tjhere is nothing in the former version of
It is also true that we and the Court of Appeals have looked to the Fourth Amendment as a guide in interpreting the statute, but we have done so in remarkably different circumstances than the ones before us today In both Burgeson v. State,
To begin, much of what the majority applies as seminal Fourth Amendment law had
The statute cannot bear the weight that the Fourth Amendment puts on it when addressing the behavior of private parties and not of the government. In fact, the one Georgia case cited to support the potential distinction between privacy from strangers and privacy from family members or other close parties, is one that specifically concluded that “there is almost a total lack of authority” addressing parental wiretapping, which was the closest Fourth Amendment analog that the court could identify Kelley v. State,
Nor am I as certain as my colleague that when the General Assembly redefined “private place” to constitute “a place where there is a reasonable expectation of privacy,” the legislature was “squarely invoking the modern Fourth Amendment test.” Concurring op. at 634 (Nahmias, J., concurring in part and concurring specially in part). Perhaps Fourth Amendment tests are more relevant under the new version of the statute — or perhaps not. After all, the amended statute still addresses a privacy interest quite different, than the one that we all share against government search and seizure. But we need not make that determination until the proper case is before us, and I would decline to do so here.
I am authorized to state that Justice Hunstein and Justice Blackwell join this concurrence.
Apart from the Fourth Amendment issues outlined more fully in this special concurrence, and in contrast to the majority opinion, I also note that the statutory text provides no reason that the recording of consensual and nonconsensual conduct would be treated differently under the statute. See Maj. op. at 631 n.14. Additionally, one would expect that the indictment would include an allegation that the sexual activities at issue were consensual if that were an important factor in the interpretation of the statute—particularly where, as here, it was commonly understood that the activities were alleged by Ms. Brin die to be nonconsen-sual.