Henderson v. State

• Decision Date: 21 April 1982
• Docket Number: Nos. 63242,63609,s. 63242
• Citation: 292 S.E.2d 77,162 Ga.App. 320
• Parties: , 33 A.L.R.4th 289 HENDERSON v. The STATE. COURSEY v. STATE.
• Court: Georgia Court of Appeals

Page 77

292 S.E.2d 77

162 Ga.App. 320, 33 A.L.R.4th 289

HENDERSON v. The STATE.

COURSEY v. STATE.

Nos. 63242, 63609.

Court of Appeals of Georgia.

April 21, 1982.

On Rehearing May 12, 1982.

J. Roger Thompson, Ellijay, for Henderson.

Nicholas E. Bakatsas, Marietta, for Coursey.

Thomas J. Charron, Dist. Atty., Joseph L. Chambers, Asst. Dist. Atty., Marietta, for appellee.

POPE, Judge.

Bonnie Frank Henderson and Carl Robert Coursey were jointly indicted on two counts alleging violation of the Georgia Controlled Substances Act. Count I alleged the sale of the controlled substance methaqualone; Count II alleged possession of methaqualone with the intent to distribute. Henderson was also indicted under the Habitual Offender Act, Code Ann. § 27-2511. Following their joint trial, Henderson was convicted of both counts, while Coursey was acquitted on Count I and convicted on Count II. We have consolidated our consideration of these cases on appeal.

Case No. 63242

1. Henderson first enumerates as error the trial court's denial of his motion for mistrial based upon the introduction of testimony into evidence of other crimes for which he was not on trial. The offending testimony was given by Georgia Bureau of Investigation (GBI) Agent Jackson in response to a question by the district attorney on direct examination. Agent Jackson was asked to summarize various conversations and transactions he had had with Henderson prior to Henderson's arrest. Agent Jackson responded that on several occasions they had discussed setting up a drug lab. "We never actually were able to get together on the exact terminology on ways of putting a drug lab together. I was able at a different time to purchase some machinery from Mr. Henderson. This later turned out to be stolen."

"We begin with the general rule that in the trial of a crime, evidence of other criminal acts by the defendant is inadmissible as it tends to place the defendant's character into evidence. See Code Ann. § 38-202. See also Bacon v. State, 209 Ga. 261, 71 S.E.2d 615 (1972)." State v. Johnson, 246 Ga. 654(1), 272 S.E.2d 321 (1980). While there are exceptions to this general rule, none is applicable in the case at bar. See generally State v. Johnson, supra. Nevertheless, assuming arguendo that the trial court erred in allowing the offending testimony to be introduced into evidence, any error was harmless because the evidence in this case against Henderson was overwhelming. Henderson admitted at trial that the allegations contained in the indictment had indeed transpired but asserted the defense of entrapment. Over review of the evidence in this case discloses that Henderson's entrapment defense was wholly without merit and that any rational trier of fact could have found Henderson guilty of the crimes charged beyond a reasonable doubt. "Applying the standard for harmless error set out in Johnson v. State, 238 Ga. 59, 230 S.E.2d 869 (1976), it can be fairly said that it was highly probable that any erroneous admission of [Agent Jackson's] testimony did not contribute to the judgment in this case." Hamilton v. State, 239 Ga. 72, 76, 235 S.E.2d 515 (1977).

2. Henderson's second enumeration cites as error the trial court's failure to require the state to disclose the identity of a confidential informant. The record discloses that Henderson sought discovery of this information by motion made in accordance with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Henderson requested "[t]he names, addresses, telephone numbers of any person the state knows to possess relevant information to the charges in the indictment, including but not limited to informants or confidential sources." Henderson again sought this information by motion made at the close of the state's case. Henderson, through his attorney, stated at this time that entrapment was to be his defense.

"Where an informant is a mere tipster, disclosure of his identity is not required. Thornton v. State, 238 Ga. 160(2), 231 S.E.2d 729 (1977). But where the informer is a witness or participant, a request for disclosure requires the trial court to balance the benefits of disclosure to the defendant against the resulting harm to the [state]. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Thornton supra. 'Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.' Roviaro, supra [353 U.S. at 62 ." State v. Royal, 247 Ga. 309, 312, 275 S.E.2d 646 (1981).

During argument in support of his renewed motion for disclosure, counsel for Henderson stated, "... [E]veryone in this courtroom over the age of three years old and who has listened to the testimony knows that Bruce Mitchell is the informant. The testimony is that the informant, whoever he [is], introduced Agent Jackson and Mr. Henderson. Mr. Henderson knows who introduced Agent Jackson to him. It was his buddy Bruce Mitchell. Nobody is trying to find some secret that they have. We know that. Now, our defense will be entrapment and it is going to be necessary that we show that Mr. Mitchell was an agent and was acting in the capacity of an agent of the state." Counsel had earlier stated that this information had been known to the defense since the day after Henderson's arrest. The trial court denied the motion to disclose.

Although Henderson asserts on appeal that disclosure of the informant's identity was necessary to the viability of his entrapment defense, he made no showing at trial as to any possible significance of the informant's testimony, only his unsupported conclusion that it was necessary. The Supreme Court's decision in "... Brady does not establish an inflexible principle that requires the disclosure of informants' identities or of all evidence, but only that which is 'favorable to a defendant if the evidence is material to guilt or punishment.' [Cits.] In this case, [Henderson] made no showing of, and did not in anyway call in issue, any favorability or materiality of the informant's testimony to the defense. There was, then, no request or showing which would contravene Code [Ann.] § 38-1102, which grants the privilege against disclosure. [Cit.] The question of disclosure is a matter of discretion with the trial judge (see Boyd v. State, [146 Ga.App. 359, 246 S.E.2d 396 (1978) ] ), which in this case was not abused." Bennett v. State, 153 Ga.App. 21, 27, 264 S.E.2d 516 (1980).

3. Thirdly, Henderson contends that the trial court erred in failing to exclude testimony relating to certain in-custody statements he had made. Although Henderson made an appropriate written request for pretrial discovery of his in-custody statements (see Code Ann. § 27-1302), the state did not provide a copy of any such statements.

The record discloses that the state recalled two witnesses in rebuttal who were questioned as to certain in-custody statements made by Henderson after his arrest. Each of these witnesses was thoroughly cross examined by defense counsel. Only after these witnesses had completed their testimony did Henderson move to exclude the testimony as to his in-custody statements on the basis of the state's failure to comply with Code Ann. § 27-1302. The trial court ruled that, since the conversations during which Henderson had made the statements had been initiated by Henderson, and since these statements were made after the commission of the crimes, the state had no duty to disclose the statements. This ruling is an incorrect interpretation of the law.

Code Ann. § 27-1302 provides: "(a) The defendant shall be entitled to have a copy of any statement at least 10 days prior to the trial of the case given by him while in police custody... (c) Failure of the prosecution to comply with a defendant's timely written request for a copy of his statement, whether written or oral, shall result in such statement being excluded and suppressed from the prosecution's use in its case-in-chief or in rebuttal." (Emphasis supplied.) Accordingly, Henderson was entitled to have his in-custody statements excluded and suppressed from the state's use at trial. Garner v. State, 159 Ga.App. 244(1), 282 S.E.2d 909 (1981); see also Wallin v. State, 248 Ga.App. 29(5), 279 S.E.2d 687 (1981); Tanner v. State, 160 Ga.App 266(1), 287 S.E.2d 268 (1981). However, when this evidence was offered by the state, Henderson made no objection to its admission. "By this action [he] waived any objection which might have been urged... It is well settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection." Yarborough v. State, 151 Ga.App. 474, 475, 260 S.E.2d 369 (1979); Smith v. State, 142 Ga.App. 406(1), 236 S.E.2d 107 (1977).

4. Henderson's fourth enumeration cites as error the trial court's consideration of Henderson's 1972 federal conviction of importing 1200 pounds of marijuana (a felony) for the purpose of sentencing him as an habitual offender pursuant to Code Ann. § 27-2511. Henderson contends that the importation of marijuana is not a crime punishable under the laws of this state.

Although Code Ann. § 27-2511 provides that a person's conviction of a crime under the laws of the United States may be considered for sentencing as an habitual offender if said crime is a felony if committed within this state, the statute does not indicate whether such a crime must have been a felony under Georgia law at the time of its commission. Only since March 20, 1980 has it been a felony for any person to knowingly bring into this state (i.e., import) more than 100 pounds of marijuana. Ga.L.1980, p. 432 (Code Ann. § 79A-811(1)(3)). However, we decline to apply this 1980 statute to Henderson's criminal activities in 1972. See generally Code Ann. § 102-104. At the time...