Henderson v. State

• Decision Date: 19 March 1987
• Docket Number: No. 73231,73231
• Parties: HENDERSON v. The STATE.
• Court: Georgia Court of Appeals

Page 241

356 S.E.2d 241

182 Ga.App. 513

HENDERSON v. The STATE.

No. 73231.

Court of Appeals of Georgia.

March 19, 1987.

Rehearing Denied April 3, 1987.

Billy L. Spruell, Atlanta, for appellant.

Robert E. Wilson, Dist. Atty., Michael J. Bowers, Atty. Gen., Harrison Kohler, Sr. Asst. Atty. Gen., George P. Shingler, Asst. Atty. Gen., for appellee.

BEASLEY, Judge.

Henderson, with Murray Gordon and Al Ikenberg, was charged with conspiracy to defraud the state (OCGA § 16-10-21(a)) and two counts of theft by taking (OCGA § 16-8-2). Henderson was individually charged with two additional counts of theft by taking (OCGA § 16-8-2). All charges arose from what has become known as the "Capitol photography scandal." Defendant Henderson appeals from his conviction and sentence on all five counts. Ikenberg pled guilty and Gordon's conviction, in a separate trial, was recently affirmed. Gordon v. State, 181 Ga.App. 391, 352 S.E.2d 582 (1986), cert. granted February 18, 1987.

1. Defendant asserts error in the trial court's failure to grant his motion to quash the indictment because of alleged improper return because it was taken from the grand jury room to the courtroom to be returned not by the grand jury bailiff but by a deputy clerk.

The evidence on the motion was conflicting. The deputy clerk stated that she received the indictment from the bailiff outside the grand jury room and took it on the elevator in the company of the bailiff and others to the courtroom, where she handed it to the bailiff for return to the court. The district attorney stated that the indictment remained in the possession of the bailiff until it was properly returned in the courtroom in open court.

This is not a case where there is contention concerning the return in "open court," the subject of many decisions, but one concerning the possession of the indictment. The grand jury bailiff, by virtue of his oath, is empowered to take possession of the indictment from the grand jury and return it in open court without their presence. OCGA § 15-12-69; Davis v. State, 74 Ga. 869, 882 (1885); Danforth v. State, 75 Ga. 614, 620 (1885); see Cadle v. State, 101 Ga.App. 175, 180, 113 S.E.2d 180 (1960). The prosecutor may not do so. Bowen v. State, 81 Ga. 482, 484, 8 S.E. 736 (1888). There is no case dealing with the precise point at issue here, although it is established that the clerk does have a part to play in the proper return of the indictment and, in open court, may take the indictment from the bailiff and hand it to the judge. See Wilson v. State, 215 Ga. 446, 111 S.E.2d 32 (1959).

It is not necessary for us to decide whether, assuming the facts to be as defendant alleges, the motion was properly denied, for this case involves disputed facts which were resolved by the trial court in favor of the validity of the indictment. The trial judge was authorized to find that the indictment remained in the custody of the bailiff. This finding was not clearly erroneous and, on appeal, will be upheld. See Cunningham v. State, 255 Ga. 727, 730(2), 342 S.E.2d 299 (1986).

2. Defendant contests the admission by the court of a statement made in 1978 to a private investigator concerning theft by a Fred Henderson of camera supplies from Crown Camera. While numerous grounds for objection were stated in the trial court, the ones argued on appeal are the following: a) failure to identify the defendant as the Fred Henderson who was interviewed; b) failure to comply with OCGA § 24-9-69; c) denial of defendant's Georgia constitutional right to confrontation, Art. I, Sec. I, Par. XIV, and his federal Sixth Amendment right to confrontation; d) insufficient proof of the other crime, and failure to demonstrate that proof of the 1978 incident tended to prove the crime charged.

The charges against defendant and the others involved the dealings of the three individuals and their companies with the state. All three defendants were charged with conspiracy against the state during 1976 through 1984. They were all charged in Counts 1 and 2 with theft by taking via invoices submitted through Crown Camera (Ikenberg's company) and Photo Service Company (Gordon's company) for processing, printing, and reprinting of color film. Henderson alone was charged in Counts 4 and 5 with theft by taking for invoices submitted by his company, Custom Finishers, for the processing, developing and printing of black and white film.

The evidence showed that Crown Camera, purchased by Ikenberg in 1976, began dealing with the state and provided supplies for the House and Senate photographers as well as the House Information Office. The House and Senate photographers did mostly color work, while the majority of the House Information Office's work was black and white. Although the capitol contained a black and white processing lab, all color processing and printing was originally handled through Crown. Gordon set up Photo Service to handle the "excess" color processing and printing, although Toco Color Labs did all of the processing and printing that was billed through both Crown and Photo. Henderson was also a photographer and began working for Crown prior to 1973, when he stopped working for Crown and began working for Gordon. Gordon was and had been for several years a commission salesman for Crown.

Henderson, while working for Gordon, attended the legislature when in session and picked up and delivered to Toco the film from all the photographers. He also assisted the House photographer by taking informal photos.

In 1979 or 1980, Henderson began submitting his own bills to the legislative fiscal office, originally using the name "Custom Printers" and then incorporating as Custom Finishers in 1980. Custom dealt only with black and white. Henderson testified and stated that he "just started" assisting the House photographer and never had a contract or agreement concerning what Custom or he would charge. In 1983, he told the governor's new photographer that he would charge her his cost plus 25% to take care of her color processing and printing. There was also evidence that in 1982, when defendant itemized his Custom black and white invoices, he was charging $1.50 per 8"" x 10"" print and $3.00 to process a roll of film. Henderson ceased itemizing his invoices in late 1982 and began submitting invoices reflecting merely "processing" or "printing" without any quantities. He acknowledged that his invoices were inflated and reflected more prints and processing than he did but explained that the overage was to cover his $80 per hour fee for time spent taking pictures. He had not told anyone with the state about this $80 charge. The evidence showed markups on Crown, Photo, and Custom invoices of 400% or greater.

The 1978 incident arose when Ikenberg, owner of Crown, apparently had polygraph examinations performed on his employees and those with access to his store. At this time, defendant was technically employed by Gordon, commission salesman for Crown, and had unlimited access to the store. While the private investigator did polygraph defendant, no reference was made to that during his testimony. Only defendant's admission that he had stolen small amounts of supplies over the three previous years and his later statement that he could not change his story were presented to the jury. At the time of the proffer of the investigator's testimony, the state set out two purposes for the evidence: 1) that it might explain the discrepancies between what was billed to the state and what was delivered, and 2) that it would show the conspiracy because although Ikenberg had been given the report by the investigator, he continued to allow defendant unfettered access to his store. The rationale of the state's theory was that all of the conspirators were making so much money from the fraud against the state that minor theft was not a concern.

In admitting the testimony, the court treated the incident as a like act and instructed the jury that it was to be considered only "under the provisions of law that where knowledge, common design, modus operandi, motive, intent, good or bad faith, bent of mind, plan, scheme, and course of conduct, identity or other matters dependent upon a person's state of mind, are involved as material elements for the offense for which he is on trial...."

While similarity of the charged crime and the "like act" has been the focus of many cases, similarity is "not the only factor, nor is it necessarily the controlling factor. 'The ultimate issue in determining the admissibility of evidence of other crimes is not mere similarity but relevance to the issues in the trial of the case.' [Cits.] Depending upon the purpose for which the extrinsic offense is offered, 'the state may be required to prove a high degree of similarity between relevant characteristics of the extrinsic offenses and the charged crimes, or it may only have the burden of showing a logical connection between crimes which are essentially dissimilar. [Cits.]' " Felker v. State, 252 Ga. 351, 359(1a), 314 S.E.2d 621 (1984). As noted by the Supreme Court in a footnote in Felker, "defendants' knowledge that they did not have permission to take a car can be proven by evidence that they murdered the owner." Felker, supra at 359, fn. 2, 314 S.E.2d 621.

Here, a logical connection between the 1978 incident and the charged conspiracy was shown. The incident occurred during the conspiracy period; the "victim" of the 1978 theft was a co-conspirator in the charged crime; even after receiving notice of defendant's defalcations, Ikenberg continued to allow defendant access to the store and no one verified what was taken by him for delivery to the legislature; the store manager from 1981 to 1984 was told by Ikenberg that defendant and Gordon were responsible for keeping up with what was taken by Henderson and he, the manager, should not be concerned with it; the store manager from 1972 to 1980 who questioned Ikenberg about the large...