Brooks v. State
| Decision Date | 18 March 1977 |
| Docket Number | No. 53517,No. 3,53517,3 |
| Citation | 141 Ga.App. 725,234 S.E.2d 541 |
| Parties | E. B. BROOKS v. The STATE |
| Court | Georgia Court of Appeals |
Louise T. Hornsby, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Dean R. Davis, Asst. Dist. Attys., Atlanta, for appellee.
Edward B. Brooks, an Atlanta attorney, was found guilty on May 7, 1976 of criminal attempt to commit theft by extortion, and sentenced to serve one year in prison. 1 His amended motion for new trial was denied on November 29, 1976, and within due time he filed his notice of appeal. The indictment charged that Brooks threatened Leroy Johnson that unless Johnson "paid accused one per cent of ten million dollars, five thousand dollars to be paid at once and the balance within three to four years, accused could and would withhold accused's testimony and information with respect to the legal claim and defense" of Johnson and others to a motion for default judgment in a civil case against Johnson and others then pending in the Superior Court of Fulton County.
Johnson, a former State Senator, was the principal witness at the trial of Brooks. He testified that he was an attorney 2 with offices at 1014 Gordon St., S.W., in Atlanta; that he had a financial interest in Atlanta Internationale Hotel which was owned by National Hotel Acquisitions, Inc.; in September, 1975, Alphonso Dawson, one of the owners of the hotel, sued the corporation and the remaining seven owners, but that he, Johnson, was never served; and that Ed Marger, attorney of record for Dawson, notified him that a motion for default judgment had been filed, claiming that no answer to Dawson's suit had been made within the prescribed 45-day period. Depositions were taken but the motion was never granted. That civil suit was dismissed April 27, 1976.
Johnson testified that he had known Brooks professionally but was unaware that Brooks was in anyway connected with Dawson's civil suit, and had had no contact with Brooks about the Dawson suit prior to Saturday, February 21, 1976. So far as Johnson knew, Ed Marger was the only attorney of record for Dawson. Johnson said that on that date Brooks telephoned him at the hotel about 9:00 P.M. and said he wanted to talk "about the Alphonso Dawson suit against the hotel," that ' " It was finally agreed that the two would meet at 10 that evening at Johnson's law office after Brooks refused to meet elsewhere. Johnson was suspicious and carried in an inside coat pocket a Lanier tape recorder. Brooks arrived first; they entered Johnson's office, but Brooks refused to go in Johnson's private office, insisting on the library. After the two were seated, Brooks, in response to Johnson's question as to what he wanted, said: "The lawsuit that Al Dawson has against you, you are in deep trouble with it, that you have failed to answer it and the case is locked up, and I'm the only one who can help you out of it." Johnson testified further that he excused himself, went to the bathroom and activated the recorder because he felt that Brooks "was going down a path which I felt he would try to compromise my position on the lawsuit, or to make an offer to me which I considered to be an illegal offer." Johnson stated that Brooks said
Brooks told Johnson that for a favorable affidavit he wanted "one per cent of ten million dollars, over a two or three year period, with a substantial amount up front." Johnson told him that he would get in touch with Jackson Cook to find out when the motion was coming up, and would contact Brooks on Monday. After Brooks left Johnson communicated with one of the other owners of the hotel, Marvin Arrington, and related what had happened. Johnson took the tape to the Fulton County District Attorney's office on Monday where he turned the tape over to Huley Bailey, an investigator with that office.
Johnson contacted Brooks Monday night, they set up a meeting for Tuesday, February 23, and on that date met in Johnson's library. Johnson's recorder was in his pocket, turned on. He told Brooks that he was not able to raise the kind of money Brooks wanted, $100,000. Brooks then said, "Well five up front will do me." Johnson: "What do you mean, five thousand dollars?" And Brooks said, "Yes, $5,000 up front . . . I will give you an affidavit stating that I took the papers out on a certain day, 36 days." When asked what would happen if Johnson were unable to raise the money, Brooks replied: The tape of this second conversation was delivered the next day to Mr. Bailey in the office of Assistant District Attorney Carter Goode.
Bailey testified that he was a special agent of the intelligence division of the district attorney's office; that the two tapes were turned over to him by Johnson, one on February 23 and the other on the 24th; that he made copies of both tapes, that transcriptions of both tapes were made; that subsequent to the earlier transcription he was again making a transcription of the first tape and some twelve words were erased, when he inadvertently hit the record button, and the recorder "picked up the sound of the typewriter in the background;" that he had had the original tape transcribed prior to the occurrence of this erasure; that both the transcript and the copy of tape 1 contained the words subsequently erased; and that the contents of the two original tapes were truly and accurately reflected by the transcriptions. Bailey further testified that he knew both Brooks and Johnson and knew their voices; and that when tape 1 was received in the district attorney's office it was replayed in the presence of himself, Johnson, Arrington, District Attorney Slaton, Assistants Carter Goode and Jack Mallard. He testified that since delivery to him the two original recordings had not been altered or changed other than the inadvertent erasure on tape 1.
The two tapes were played to the jury with the jury having transcripts as an aid to their hearing. The original tapes were admitted into evidence, and the transcripts were furnished to the jury as an aid in listening to the tapes and not as evidence.
Brooks offered as an expert witness in his defense Frank G. Smith, an associate in the same law firm with which Brooks was associated, who said that he was retired from the Federal Aviation Agency where he had been a supervisor electronic technician and was certified in the maintenance of recording devices for some 15 years. Attorney Smith testified that he had examined copies of the tapes supplied to him, that he had no opportunity to examine the originals and had heard the originals only while being played to the jury, that in his opinion the originals had numerous pauses and two significant blips, and that he noticed differences in at least 29 places between the transcripts and the copies.
The accused testified in his own defense that tape 1 did not contain all of the conversation between Johnson and himself on the occasion, said that it was Johnson who called and arranged the meeting, and claimed that the five thousand dollar figure was "what I would take in order to represent" Johnson in the civil litigation, that he never made any promises or threats. He admitted that it was his voice on tape 1 saying, "That's why I wanted to meet you on neutral grounds." He further denied that there was anything improper in his words recorded on tape 1, "So I knew I'm treading on dangerous grounds when I even talk to you about this." He admitted under cross examination that the person speaking to Johnson as produced by the tape player was he, and that the words were his.
Prior to trial Brooks filed a motion for a bill of particulars, a plea in abatement, a motion for discovery, a demurrer to the indictment, a motion for complete recordation of all proceedings, a motion to suppress, a motion for inspection and validation of authenticity of tape recording, and an amended...
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...this court has examined the record and concludes that the proper foundation for the use of the tapes was laid. Brooks v. State, 141 Ga.App. 725, 234 S.E.2d 541 (1977); Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976); Solomon, Inc. v. Edgar, 92 Ga.App. 207, 88 S.E.2d 167 (1955). The record......
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...officer who prepared it. As all the requirements for the admission into evidence of a videotape as set forth in Brooks v. State, 141 Ga.App. 725, 733(8), 734(a), 234 S.E.2d 541 were met in the case sub judice, the trial court did not err in admitting this videotape of the child's statements......
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...Enumerations No. 1, 2 and 9 are without merit. Accord, Moten v. State, 149 Ga.App. 106, 253 S.E.2d 467 (1979); Brooks v. State, 141 Ga.App. 725(4), 234 S.E.2d 541 (1977). 2. Two tapes, identified as 5 and 5A, were neither transcribed nor played at trial; they purportedly relate the sound of......
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...had been developed for the introduction of this evidence according to the seven criteria set forth in Brooks v. State, 141 Ga.App. 725, 734(8)(a), 234 S.E.2d 541 (1977), and Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga.App. 207, 211-212(3), 88 S.E.2d 167 (1955). Johnson emphasizes the requir......