Burns v. State

368 Ga.App. 642

889 S.E.2d 447

BURNS v. The STATE.

A23A0577

Court of Appeals of Georgia.

June 20, 2023

Review Denied July 6, 2023

James E. Voyles, Kennesaw, Alex Christian Devilliers, for Appellant.

Flynn Duncan Broady Jr., Linda Jeanne Dunikoski, for Appellee.

Land, Judge.

After a jury trial, Derek Burns was convicted of committing several crimes in connection with the assault of his girlfriend. Burns appeals from the trial court's denial of his motion for new trial, arguing that the State violated his Sixth Amendment rights when an investigator and an assistant district attorney listened to three recorded jailhouse phone calls between him and one of his earliest attorneys in the case, and that the trial court erred by finding that the attorney said he was Burns’ counsel in only one of the three calls. Burns also argues that the trial court erred in admitting testimony from his former girlfriend. For the following reasons, we affirm.

As set forth in the prior unpublished opinion in this case, Burns was indicted for committing aggravated assault, false imprisonment, simple battery, family violence battery, and family violence simple assault in connection with the 2015 strangulation of the victim. Burns v. State , 364 Ga. App. XXV (Case No. A22A0566, decided May 26, 2022). At trial, the State introduced substantial evidence in support of those charges, including testimony by the victim. Id. The State also called an investigator to testify regarding her investigation of the incident. During the investigator's direct examination, the State did not elicit any testimony concerning the phone calls. However, during cross-examination, Burns’ counsel requested to ask the investigator a question outside the presence of the jury. The jury left the courtroom, and Burns’ counsel asked the investigator whether she had reviewed jail calls between Burns and "his attorney." The investigator initially denied listening to recorded jail calls between Burns and one of his earlier attorneys, David Daugherty, but eventually testified she "did listen to some of the calls." Id. Based on this testimony, Burns moved for a mistrial. Id.

Before the trial court made its ruling on the motion for mistrial, an assistant district attorney reviewed the three phone calls and informed the trial court that they contained no discussion of strategy, that Daugherty told Burns the State would be able to listen to the calls but would not be able to use them in court, and that Burns stated they were "not really going to talk about anything sensitive here anyway." Based on this revelation, Burns argued that the assistant district attorney violated his attorney-client privilege by listening to the calls. Burns , 364 Ga. App. XXV. The trial court denied the motion for mistrial after finding that Burns was unharmed by any alleged violation. Id. Burns was found guilty of all counts, and he filed a motion for new trial, which was denied by the trial court. Id. Despite its denial of the motion, the trial court found that the investigator's actions were a violation of OCGA § 24-5-501 (a) (2). ¹ Id.

On appeal, we reversed the trial court's finding that the investigator had violated OCGA § 24-5-501 (a) (2) and remanded the case to the trial court for it to consider whether the investigator and assistant district attorney violated Burns’ Sixth Amendment rights when they listened to the phone calls. Burns , 364 Ga. App. XXV. We did not address Burns’ second enumeration of error related to the admission of witness testimony. Id.

On remand, the trial court held a hearing at which Daugherty testified that he was unaware that he needed to register his phone number with the jail so that his calls would not be recorded and that Burns did not ask him to do so. At the time Burns made the relevant phone calls to Daugherty, Daugherty was one of Burns’ attorneys.

Daugherty testified that Burns initiated each call and acknowledged that at the beginning of each one, an announcement informed the parties that the call was being recorded.

Daugherty testified that he "started every call by identifying myself as his attorney of record. Sometimes I would say my bar number, and I then requested anyone listening or recording to please stop." He also testified that he intended the calls to be privileged and thought his statement would be "sufficient enough to notify anybody listening" that "there's attorney-client privileged conversations happening." Daugherty testified that he and Burns discussed case preparation and strategy on several calls, but Daugherty could not specifically recall what was discussed on each call. Although Daugherty testified that he believed that Burns’ calls to him were the only means of communicating with him, he conceded that he met with Burns in person at the jail "between four and six times" to discuss his case.. Thus, it is clear that speaking with his client on a recorded line was not his only option.

During the hearing, the investigator testified that, as part of her work on the case, she requested and obtained from the sheriff's department Burns’ jail call recordings for dates between April 23, 2018 and June 21, 2018. She did not request Burns’ phone calls with his attorney, and she had never before received a CD of jail calls that contained phone calls between a defendant and his attorney. The investigator testified that she listened to the entirety of the three calls at issue but did not listen to another complete call between Daugherty and Burns after speaking with her supervisor and the lead prosecutor in the case. The investigator's log of the jail phone calls, including the calls between Daugherty and Burns, was provided to Burns and his trial counsel with the CD of calls during pre-trial discovery.

The investigator testified that after Burns moved for a mistrial, she discussed the phone calls with one of the prosecutors on the case, assistant district attorney Lindsey Raynor. Raynor admitted that she listened to the calls after Burns moved for a mistrial in order to address Burns’ claim that the calls contained confidential information.

After the hearing on remand, the trial court conducted an in camera review of the three jail calls at issue, dated April 27, 2018, May 1, 2018, and May 2, 2018. The trial court then entered an amended order denying Burns’ motion for new trial, holding that there was no protected attorney-client communication in the calls and that as a result, Burns’ Sixth Amendment rights had not been violated. The trial court further held that since nothing in the calls was used at trial, Burns was not prejudiced by any alleged violation of his Sixth Amendment rights. Burns appeals from that order.

1. Burns argues that because the State knowingly listened to the jail phone calls without justification, his Sixth Amendment rights were "per se" violated and all charges against him should be dismissed, or alternatively, he should receive a new trial. We are not persuaded.

(a) Sixth Amendment Violation. The Supreme Court has held that, under some circumstances, a defendant's Sixth Amendment rights may be violated by the State's intrusion into the attorney-client relationship. Weatherford v. Bursey , 429 U. S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). As relevant here, the Supreme Court of Georgia has determined that "when the [S]tate becomes privy to confidential communications because of its purposeful intrusion into the attorney-client relationship and lacks a legitimate justification for doing so, a prejudicial effect on the reliability of the trial process must be presumed." (Emphasis omitted.) Howard v. State , 279 Ga. 166, 170 (3) (a), 611 S.E.2d 3 (2005) (citing Shillinger v. Haworth , 70 F.3d 1132, 1142 (II) (B) (10th Cir. 1995) ). In other words, a per se Sixth Amendment violation occurs when: "(1) there is a protected attorney-client communication; (2) the government purposefully intruded into the attorney-client relationship; (3) the government becomes ‘privy to’ the attorney-client communication because of its intrusion; and (4) the intrusion was not justified by any legitimate law enforcement interest. Once these elements are established, prejudice is presumed." United States v. Carter , 429 F. Supp. 3d 788, 790 (VI) (B) (1) (D.Kan. 2019). As can be seen by this case law, there is no Sixth Amendment violation where the communications at issue are not confidential.

Under Georgia law, "[i]t is well established that the attorney-client privilege protects communications between the client and the attorney that are intended to be confidential; the protection does not extend to communications which are not of a confidential nature. " (Citation and punctuation omitted; emphasis supplied.) Parrish v. State , 362 Ga. App. 392, 400-401, 868 S.E.2d 270 (2022). More specifically, the privilege does not "extend to those situations in which third parties are present for attorney-client discussions." Rogers v. State , 290 Ga. 18, 20-21 (2), 717 S.E.2d 629 (2011). We review a trial court's decision as to the application of the attorney-client privilege for abuse of discretion. Etowah Env't Grp., LLC v. Walsh , 333 Ga. App. 464, 475, 774 S.E.2d 220 (2015). "Further, we also may review the documents at issue to determine whether the trial court correctly applied the privilege." Brown v. Howard , 334 Ga. App. 182, 183, 778 S.E.2d 810 (2015).

Fatal to defendant's argument is the fact that "there is no reasonable expectation of privacy in a recorded telephone call made from a jail or prison." Keller v. State , 308 Ga. 492, 497 (2) (b), 842 S.E.2d 22 (2020). With no reasonable expectation of privacy, Burns cannot rightfully contend that his jailhouse calls were confidential or privileged. Burns has cited no binding precedent, and we have found none, supporting his assertion that Daugherty's announcement at the beginning of each call creates an exception to the rule announced in Keller . See Rogers , 290 Ga. at 21, 717...