Orkin v. State

236 S.E.2d 576, 239 Ga. 334, 1977 Ga. LEXIS 907

Opinions

Per curiam.

We granted certiorari in Orkin v. State, 140 Ga. App. 651 (231 SE2d 481 (1976)), to determine whether the newly discovered evidence in this case requires suppression of wiretap evidence under the exclusionary rule contained in Code Ann. § 26-3004 (k).¹

Argued April 11, 1977 Decided May 12, 1977 Rehearing denied June 7 and June 30, 1977. Hansell, Post, Brandon & Dorsey, Hugh M. Dorsey, Jr., Allen Post, David J. Bailey, Wesley R. Asinof, for appellants. Lewis R. Slaton, District Attorney, Carter Goode, Assistant District Attorney, for appellee.

Section 26-3004 (k) was construed by this court in Orkin v. State, 236 Ga. 176 (3) (223 SE2d 61) (1976). The present case involves the application of that Code section as construed by this court to an admittedly close set of facts.² For the purposes of the writ of certiorari this does not involve a matter of gravity and importance. See Rule 36 (j), Rules of the Supreme Court of the State of Georgia. Therefore, the writ of certiorari will be dismissed as improvidently granted.

Writ dismissed.

All the Justices concur, except Nichols, C.J., Undercofler, P.J., and Hill, J., who dissent.

Footnotes

1

We originally granted certiorari to determine, additionally, whether the newly discovered evidence proved a violation of Code Ann. § 26-3004 (c), thus requiring suppression under § 26-3007. Upon reconsideration, it appears that this question is not properly before this court as it was not raised initially before the Court of Appeals or in the motion for rehearing in that court. See Rule 36 (h), Rules of the Supreme Court of the State of Georgia.

2

We are not prepared to hold that although it may be necessary to replay wiretap evidence to the victim of a crime for voice identification purposes, the victim’s attorney is precluded as a matter of law from being present. Assuming this, it is purely an evidentiary question as to whether the presence of the attorney in a particular case is "reasonably necessary and essential.”