author: Birdsong, Presiding Judge.

text:
    A95A0351.
    HEWATT v. THE STATE.
    (455 SE2d 104)
   Birdsong, Presiding Judge.

Kenneth Hewatt appeals his judgment of conviction of two counts of burglary and the sentence. Appellant was found guilty in a non-jury trial of one count of burglary with intent to commit aggravated assault and one count of burglary with intent to commit terroristic threats; the trial court merged both convictions for purposes of sentencing. Appellant enumerates as error that the trial court erred in finding the evidence adduced at trial was sufficient to support the verdict, as a matter of law, and that the trial court erred in denying appellant’s new trial motion based on the general grounds. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). It lies within the province of the factfinder to judge witness credibility and to weigh the evidence. The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) “is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436).

2. OCGA § 16-7-1 (a) pertinently provides that “[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another ... or any room or any part thereof.” OCGA § 16-11-37 (a) provides that “[a] person commits the offense of a terroristic threat when he threatens to commit any crime of violence or to burn or damage property with the purpose of terrorizing another or of causing the evacuation of a building, place of assembly, or facility of public transportation or otherwise causing serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience. No person shall be convicted under this subsection on the uncorroborated testimony of the party to whom the threat is communicated.” OCGA § 16-5-21 promulgates the statutory prohibition against aggravated assault.

Appellant previously had broken into the victim’s home, put a gun to her throat, raped her and committed aggravated sodomy against her; she gave a statement to the police and appellant pled guilty of rape and burglary. Subsequent to his release from prison the police had a “be on the lookout” (BOLO) alert on appellant as allegedly he had threatened revenge on both the female victim and the police. On the night of the incident, appellant, who had been drinking at the “Follies” (a so-called “strip joint” or “nudie” bar), went to the female victim’s home at approximately 3:30 a.m. and attempted to crawl into a window of her house thereby breaking the plane of the structure with a portion of his body. See generally Hayes v. State, 193 Ga. App. 33, 35 (4) (387 SE2d 139); Mullinnix v. State, 177 Ga. App. 168 (338 SE2d 752). A male friend of the female victim heard the noise and, armed with a baseball bat, advanced upon appellant swinging the bat. The friend previously had been shown a picture of appellant by the police and warned about him. Although unarmed, appellant threatened to kill the male friend; but apparently when the friend asked the victim to call “911,” appellant became frightened and fled. Appellant’s car became stuck on some railroad ties as he tried to back up. The victim called the emergency police number, and appellant was arrested in a neighbor’s yard.

The requisite intent necessary for commission of burglary, pursuant to OCGA § 16-7-1 (a), need not be formed at the precise moment of entry, but can be formed thereafter while the perpetrator is remaining on the premises. Keith v. State, 138 Ga. App. 239 (2) (225 SE2d 719). Moreover, “[i]ntent may be inferred from, and usually of necessity must be proved by, circumstantial evidence.” Dworkin v. State, 210 Ga. App. 461, 462 (436 SE2d 665). Whether the circumstantial evidence adduced at trial was sufficient to prove the requisite intent necessary for each count of burglary was a question of fact for the factfinder.

Decided March 8, 1995.

B. Thomas Cook, Jr., for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

Additionally, the unrefuted evidence is that appellant attempted to flee the crime scene. “ ‘Flight is circumstantial evidence of consciousness of guilt’ and the weight to be given such evidence is for the [factfinder] to decide; the fact that a suspect flees the crime scene points to the question of guilt in a circumstantial manner.” Campbell v. State, 215 Ga. App. 14, 15 (1) (449 SE2d 366).

To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the factfinder rationally could have found that it excluded every reasonable hypothesis except that of the defendant’s guilt. The determination of whether other hypotheses have been excluded is primarily a factfinder’s function. Murdix v. State, 250 Ga. 272, 274 (1) (297 SE2d 265). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of each of the burglary offenses of which convicted. Jackson u. Virginia, supra.

Judgment affirmed.

Johnson and Smith, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A95A0430.
    WORDU v. THE STATE.
    (455 SE2d 101)
   Birdsong, Presiding Judge.

Izeoma Bertram Wordu has filed an out-of-time appeal of his judgment of conviction, entered February 6, 1988, of trafficking in cocaine. His sole assertion of error is inadequacy of counsel.

Appellant petitioned for writ of habeas corpus. On July 8, 1993, the Superior Court of Ware County issued an order, which, inter alia, directed that the Superior Court of Dooly County grant petitioner an out-of-time appeal, and appoint him counsel to prosecute his appeal should he be found by the court to be indigent. The Superior Court of Ware County additionally directed that petitioner’s appointed counsel, subsequent to the grant of an out-of-time appeal, “further file a motion for new trial to address all relevant issues petitioner has raised herein including specifically ineffective assistance of counsel.” On September 14, 1994, the Superior Court of Dooly County filed an order granting “an out-of-time appeal to pursue within thirty (30) days from the filing of this order, any post-conviction remedies [appellant] may have.” Also on September 14, 1994, a notice of appeal was filed on behalf of appellant by his current appellate attorney; this notice directed that no filed motions be omitted from the record. The trial record discloses that, although a motion for new trial had been denied in September 1989, no motion for new trial was filed subsequent to the entry of the habeas corpus order on July 8, 1993 and before notice of appeal was entered in this case. Held:

1. Appellant failed to file a separate enumeration of error in this attempted out-of-time appeal, but merely incorporated an enumeration of error within his appellate brief. This court issued an order on January 19,1995 directing appellant to file a separate enumeration of error as required by Court of Appeals Rule 22 (b), dated January 1, 1995. See, e.g., Benfield v. State, 224 Ga. 139 (160 SE2d 398) (assignments of error in a timely filed brief cannot take the place of the required enumeration of error). Accord Russell v. State, 225 Ga. 371 (169 SE2d 124) (incorporation of enumeration of error in the brief fails to comply with the statutory rule and presents nothing for appellate review; compare Code Ann. § 6-810 with OCGA § 5-6-40); Windsor v. Southeastern Adjusters, 221 Ga. 329 (144 SE2d 739). Appellant failed to file timely a separate enumeration of error. “The dismissal of a criminal defendant’s appeal, thereby denying the defendant his right to direct appeal, can be the result of appellate counsel’s negligence, ignorance, or misinterpretation of jurisdictional or procedural statutes and rules.” Rowland v. State, 264 Ga. 872, 874 (1), n. 4 (452 SE2d 756). Accordingly, the out-of-time appeal shall be dismissed. Tolbert v. Tolbert, 234 Ga. 708 (217 SE2d 162); Benfield, supra.

2. Additionally, we find that appellant’s claim of inadequacy of counsel has been waived by his current appellate counsel’s failure to file a motion for new trial prior to filing the notice of an out-of-time appeal, and by failing, at the first available opportunity, to request a hearing on the issue of inadequacy of appellant’s trial counsel. Ponder v. State, 260 Ga. 840 (400 SE2d 922). In Ponder, supra at 841-842 (1), the Supreme Court held: “[T]he grant of an out-of-time appeal constitutes permission to pursue appropriate post-conviction remedies, including a motion for new trial. It follows from that holding and from the requirement that a claim of ineffective assistance of counsel be determined by means of an evidentiary hearing at the earliest practicable moment, that a claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing.” The Supreme Court then addressed the procedure which is required when the out-of-time appeal arises from a habeas corpus proceeding, and ruled that upon a finding of a denial of a right to appeal, “the habeas court should decline to rule on the remaining issues, without prejudice to any later habeas corpus action, and . . . grant an out-of-time appeal, giving the petitioner 30 days to pursue post-conviction remedies.” Id. at 842. The lower courts in this case substantially followed the procedural requirements of Ponder, supra. Moreover, appellant’s earlier filing and the trial court’s denial of a new trial motion did not preclude appellate defense counsel from filing another new trial motion timely raising the inadequacy of counsel issue before filing the notice of an out-of-time appeal. Maxwell v. State, 262 Ga. 541, 542 (3) (422 SE2d 543). “[A] claim of ineffective assistance of trial counsel may not be asserted in an out-of-time appeal unless the defendant’s new appellate counsel files a motion for new trial after the grant of the out-of-time appeal and raises the ineffectiveness claim.” Id. Further, the fact that current appellate counsel is attempting to be relieved as counsel of record and to have another appellate counsel appointed on behalf of appellant does not alleviate the necessity for his compliance with those now well-established requirements for the preservation of an inadequacy of counsel issue on appeal. For this additional reason this appeal should be dismissed. In this regard, the Supreme Court has generally cautioned appellants again, citing its earlier cases of Ponder, supra, and Maxwell, supra, of the procedure to be followed when appellate counsel intends to pursue a claim of ineffective assistance of counsel by means of an out-of-time appeal. Rowland, supra at 875 (2), n. 7.

Decided March 8, 1995.

Robert H. Beer, for appellant.

Izeoma B. Wordu, pro se.

John C. Pridgen, District Attorney, for appellee.

Appeal dismissed.

Johnson and Smith, JJ., concur.


text:
    A95A0648.
    BARR v. THE STATE.
    (455 SE2d 99)
   Birdsong, Presiding Judge.

Jessie Lee Barr appeals his judgment of conviction of armed robbery and possession of a firearm by a convicted felon. He enumerates two errors. Held:

1. Appellant’s enumeration of insufficiency of the evidence is without merit. The victim testified that, at about 8:00 p.m., October 20, 1993, she closed her beauty salon and then she and a friend exited the building. Two men — one of whom was a black man wearing a three-inch ponytail and whose face she saw and recognized — were lingering in the immediate vicinity of her salon. Her attention was drawn to the man with the pony tail, because he closely resembled an acquaintance of hers, but as the man turned, she could see his face and realized it was not her acquaintance. She got a good look at the man’s face, although for only three or four seconds; the man was illuminated from the light of the convenience store where he was standing. As the victim went toward her truck, the two men “came running around the truck pulling on masks and cocking back their guns.” The victim was carrying a box containing a gun and earrings. The men demanded the victim “give it up,” and, upon her refusal, one of the men grabbed at the necklaces around her neck, breaking them both and snatching one of them. The victim fell to the ground and spilled the contents of the box she was carrying; she retrieved her pistol and fired at the two men who fled the crime scene. The victim made an in-court identification of appellant as one of the armed men who had robbed her and as the man who had snatched her $3,000 necklace; appellant posed no objection to this testimony. She further testified as to appellant’s facial hair and clothing on the night of the incident; and that she also had observed appellant near her truck as he was donning his mask. During the course of the robbery, appellant aimed a black .44 or .45 caliber automatic at the victim’s body. The victim further testified, without objection, as to her post-trial identification of appellant from a photo line-up. The victim’s friend testified and made an in-court identification of appellant; she also described each of the perpetrators’ clothing, testifying that both were carrying guns, and also corroborating the date and time of the robbery.

Following appellant’s conviction on the robbery count, appellant was tried in a bifurcated proceeding on the count of possession of a firearm by a convicted felon. In addition to the evidence introduced during the proceedings on the robbery count, the State introduced additional evidence of appellant’s prior felony convictions. The evidence of record establishes that on the date of the armed robbery offense appellant also was a convicted felon in possession of a firearm as averred.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided March 8, 1995.

Rodney S. Zell, Glenn Zell, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, B. Martin First, Assistant District Attorneys, for appellee.

2. Appellant contends the trial court erred in instructing the jury they could convict the appellant if they found he had committed the robbery offense within seven years prior to the indictment. Specifically, appellant asserts that in view of his alibi defense which corresponds to the specific date averred in the indictment, the contested instruction deprived him of due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and under the due process provisions of the Georgia Constitution of 1983.

Appellant’s enumeration is without merit; reversible charging error has not occurred. Compare Martin v. State, 196 Ga. App. 145, 146 (1) (395 SE2d 391) and Whittington v. State, 184 Ga. App. 282, 285 (4) (361 SE2d 211).

Additionally, charging error, even of constitutional magnitude, is harmless when an appellate court determines, beyond a reasonable doubt, that the error did not affect the verdict. Gavin v. Vasquez, 261 Ga. 568, 570 (407 SE2d 756), citing Chapman v. California, 386 U. S. 18 (87 SC 824, 17 LE2d 705); accord Gentry v. State, 212 Ga. App. 79, 83-84 (4) (441 SE2d 249). The evidence of record was sufficient to meet the standards of Jackson v. Virginia, supra. See Division 1 above. Moreover, the testimony given by the State’s witnesses regarding the robbery offense unequivocally establishes the date of the offense as that date averred in the indictment. Examining the trial court’s charges in their entirety (see generally Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177)) and in light of the evidence of record relevant to the averred offenses, we find that the jury instruction complained of did not affect the verdict; instead, even in light of claims of error of constitutional magnitude, it was harmless beyond a reasonable doubt.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A0661.
    WILKIE v. THE STATE.
    (455 SE2d 103)
    Decided March 8, 1995.

      Donald L. Hudson, Jr., for appellant.

      Daniel J. Porter, District Attorney, Karen E. Reed, Assistant District Attorney, for appellee.
   Birdsong, Presiding Judge.

Ronald Steve Wilkie appeals his conviction for theft by receiving stolen property, obstruction or hindering a law enforcement officer, fleeing or attempting to elude a police officer, and reckless driving. His sole enumeration of error contends the State failed to prove his guilt beyond a reasonable doubt and the evidence is insufficient to sustain his conviction of theft by receiving. Held:

On appeal the evidence must be viewed in the light most favorable to the verdict, Wilkie no longer enjoys the presumption of innocence, and this court determines the sufficiency of the evidence, but does not weigh the evidence or judge the credibility of the witnesses. Grant v. State, 195 Ga. App. 463 (393 SE2d 737). In this case, a police officer testified that while patrolling in his police car he was alerted to be on the lookout for a stolen truck. Later, after the truck passed him, he gave chase with his emergency lights flashing, and at high rates of speed through a residential neighborhood until the truck stopped and the driver fled into nearby woods. Although Wilkie was not apprehended until days later, the police officer positively identified Wilkie as the person who drove the stolen truck on the night in question and who fled from the truck at a location the officer later learned was near the home of Wilkie’s parents. Considered in the light most favorable to the jury’s determination, we conclude that this evidence was sufficient for a rational trier of fact to find that Wilkie was guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: Smith, Judge.

text:
    A94A2104.
    RAINEY v. THE STATE.
    (455 SE2d 73)
   Smith, Judge.

Anthony Lee Rainey was convicted of rape, OCGA § 16-6-1, and possession of cocaine, OCGA § 16-13-30. His motion for new trial was denied, and he appeals.

1. Rainey contends the trial court erred in failing to charge on the law of circumstantial evidence under OCGA § 24-4-6. That Code section provides: “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” The rule established in Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991), and confirmed in Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994), provides that “where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request. This rule will apply whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached.” Robinson, supra at 699-700.

Rainey did not request this charge. However, he apparently seeks to argue a constructive request or waiver by contending the trial court misled him in the charge conference by indicating it would charge “the general charge on circumstantial evidence from the pattern book.” Even assuming some authority exists for such a contention, it has no merit. The discussion during the conference took place in the context of Rainey’s request for a “two theories” charge, which does not constitute a request to charge the language of OCGA § 24-4-6. See Kelly v. State, 212 Ga. App. 278, 281-282 (2) (442 SE2d 462) (1994); see also Division 2, below. Rainey’s failure to request a written charge is dispositive. See generally Bullock v. State, 202 Ga. App. 65, 66 (1) (413 SE2d 219) (1991).

While there is some authority for the proposition that a charge under OCGA § 24-4-6 should be given without request in cases depending wholly on circumstantial evidence, the evidence of Rainey’s guilt was not wholly circumstantial. The victim, a 72-year-old woman, was acquainted with Rainey, who lived nearby. The victim positively identified Rainey as the man who asked to use her telephone, then choked, beat, and raped her. Her injuries were shown by photographs and the testimony of a physician. The victim immediately called the police, described appellant, and told the police where he lived. As the police announced themselves at appellant’s home, he attempted to leave through the rear door. Appellant later provided two written statements to the police, including a statement that he had used crack cocaine earlier in the day. He gave the investigating officer permission to recover drug-related items from a hiding place in his home. The police recovered the items from the described location, and the items tested positive for cocaine. Since the evidence was not wholly circumstantial, Rainey’s failure to show that he requested the charge in writing is dispositive, and we find no error.

2. Rainey also contends the trial court erred in refusing to give the so-called “two theories” charge. However, this court has repeatedly held that this statement of the law does not accurately state the principle addressed and “should never be given.” Johnson v. State, 210 Ga. App. 99, 102 (2) (435 SE2d 458) (1993); Matthews v. State, 214 Ga. App. 104, 105 (2) (446 SE2d 790) (1994). This enumeration of error has no merit.

3. The trial court sustained the prosecutor’s objection to a question posed by Rainey’s counsel to the physician who treated the victim, and Rainey enumerates this as error. Rainey’s counsel sought to elicit testimony from the physician that a finger could have caused the victim’s injuries and that penetration therefore may not have taken place. Rainey’s counsel then asked Rainey to hold up his hands for the physician. The prosecutor objected on the ground there were no facts in evidence to support the physicians’s opinion, and the trial court sustained the objection. Assuming without deciding that the physician should have been allowed to give an opinion, the physician had already testified the injury could be consistent with digital penetration. Rainey’s trial counsel relied on this testimony in closing argument. “Even assuming arguendo that the trial court erroneously refused the testimony, such exclusion was wholly harmless where other evidence of the same facts was introduced and admitted. See Glass v. State, 235 Ga. 17 (218 SE2d 776) [(1975)].” Smith’s Transfer Corp. v. Alterman Foods, 162 Ga. App. 284, 286 (2) (291 SE2d 261) (1982). Moreover, Rainey’s trial counsel successfully objected to an earlier attempt by the State to elicit the same testimony.

4. Rainey also contends the trial court erred in admitting his written statements to the police, alleging they were obtained as the result of an illegal arrest. The victim called the police immediately and reported the attack. She identified the attacker as a neighbor, described him and his clothing, and told the police where he lived. When plainclothes investigators went to that house, one investigator stopped Rainey as he attempted to leave by the back door. His clothing and physical appearance were similar to those described by the victim. At that time, the investigator asked Rainey to have a seat in the front of his car, because he had “attempted to slip out the back door.” The investigator told Rainey he was not under arrest at that time and read him his Miranda warnings. The interview lasted “just a few moments,” because after Rainey was told the police were investigating an assault at the victim’s residence, he stated he had been there that morning to use the telephone. At that point, he was advised he was under arrest and was transported to the police station. He was advised of his Miranda rights for a second time, and he then signed a written Miranda form and provided two written statements to the police. The trial court suppressed the statements made by Rainey before his arrest, but denied the motion to suppress as to the written statements.

In Singleton v. State, 195 Ga. App. 119 (393 SE2d 6) (1990), the defendant claimed his Fourth Amendment rights were violated when he was taken to the police station for questioning, because he was “seized” unlawfully at his workplace in a warrantless arrest. This court found no arrest occurred, but even if an arrest occurred, there was probable cause and thus a warrant was not required. The victim described her assailant as a young Caucasian male with long, dark hair and a beard, identified his voice, and stated he had been next door. Here, the victim not only described Rainey but told the police he was a neighbor and where he lived; Rainey was stopped by the police while attempting to flee through the back door. Assuming without deciding that an arrest occurred when Rainey was seated in the front of the investigator’s car and told he was not under arrest, there was probable cause for his arrest even before he admitted having been in the victim’s house that morning.

Moreover, assuming without deciding that an illegal arrest occurred, in deciding whether a statement is the product of an illegal arrest, “[t]he trial court must determine whether the statements sought to be excluded were obtained by exploitation of the illegality of defendant’s arrest. In addition to whether a detainee has been warned of his rights, the factors which should be considered in determining whether a confession has been purged of the taint of an illegal arrest include the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct. Factual and credibility determinations of this sort made by a trial judge must be accepted by appellate courts unless such determinations are clearly erroneous.” (Citations and punctuation omitted.) Paradise v. State, 212 Ga. App. 166, 167 (441 SE2d 497) (1994). In Paradise, the defendant agreed to come to the police station for questioning and was mistakenly handcuffed by a deputy who believed him to be under arrest. He moved to suppress his later statement to the police as the product of an illegal arrest. However, this court held that even if an illegal arrest occurred, any taint arising from such an arrest was attenuated by subsequent events. 212 Ga. App. at 167-168.

Rainey was not handcuffed or confined in the rear of a patrol car. He was interviewed briefly, then transported to the police station, where he was again advised of his Miranda rights and signed a waiver form before giving two statements. Under these circumstances, even if there was an illegal arrest, any effect was attenuated by the time Rainey gave his later statements. The trial court did not err in overruling Rainey’s motion to suppress.

Decided February 6, 1995

Reconsideration denied March 9, 1995

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, Phyllis Miller, for appellant.

Daniel J. Porter, District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.

5. Rainey enumerates as error the trial court’s failure to grant a mistrial because of a remark made by the prosecutor in response to an objection by defense counsel to testimony by a “chain of custody” witness: “If [counsel] wants to go ahead and stipulate the chain of custody, that will be fine with me, but otherwise, I need to have the item identified.” Rainey contends this was an improper comment on his failure to testify. We disagree. The prosecutor was not commenting on any failure by Rainey to testify, but discussing defense counsel’s objections to the State’s introduction of evidence. While Rainey contends this comment somehow placed a duty on him to produce evidence, he does not explain how or why it relates to his testimony. He could not have testified as to the chain of police custody in any event. Under these circumstances, there was no manifest abuse of discretion in the denial of defendant’s motion for mistrial under the facts of this case, and reversal is not required. See Bleckley v. State, 214 Ga. App. 860, 861 (449 SE2d 351) (1994). “Moreover, appellant refused the offer of curative instructions, thus making it impossible for the trial court to repair the alleged prejudice and waiving the grounds to assert mistrial error on appeal. [Cit.]” Battle v. State, 195 Ga. App. 542, 544 (2) (394 SE2d 788) (1990).

Judgment affirmed.

McMurray, P. J., and Pope, P. J., concur.

       It has been asserted that, under Robinson and its progeny, this charge need not be given absent request, even in cases depending wholly on circumstantial evidence. See Yarn v. State, 215 Ga. App. 883 (452 SE2d 537) (1994) (Andrews, J., concurring specially). However, we need not reach that issue here.


author: Andrews, Judge.

text:
    A95A0165.
    DEPARTMENT OF HUMAN RESOURCES v. GELINAS.
    (455 SE2d 76)
   Andrews, Judge.

The Department of Human Resources (DHR) ex rel. Jeffrey Bovat brought a petition under the Uniform Reciprocal Enforcement of Support Act (URESA) seeking child support from Gelinas, alleged to be the father of Jeffrey Bovat. The trial court entered an order upholding Gelinas’ defense of res judicata as to the issue of paternity and dismissing the child support petition. We granted DHR’s application for a. discretionary appeal from the trial court’s dismissal order.

Decided February 23, 1995

Reconsideration denied March 9, 1995

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellant.

Richard A. Gordon, for appellee.

The trial court determined that the paternity issue was or could have been litigated in a previous URESA action brought by the mother in 1982 and that Gelinas’ res judicata defense as to the paternity issue was upheld in two unappealed dismissal orders in subsequent URESA petitions brought by DHR on the relation of the mother in 1989 and 1991. Accordingly, the trial court dismissed the petition and ruled that Gelinas’ defense that he was not the child’s father was res judicata.

It does not appear that the paternity issue was decided in the original 1982 dismissal order. The 1982 order provided that because “[p]aternity has not been established and petitioner or the State of Connecticut will not pay for [the] cost of [a] blood test[,] [n]o support should be granted, therefore, [the] case is hereby dismissed.”

Although generally the principle of res judicata renders a judgment “conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue . . .” (OCGA § 9-12-40), the rule less strictly applied in this type of case is “that a final decree has the effect of binding the parties and their successors as to all matters which were actually put in issue and decided, or which by necessary implication were decided between the parties.” (Citations and punctuation omitted.) Brookins v. Brookins, 257 Ga. 205, 207-208 (357 SE2d 77) (1987). The 1982 order expressly states that the paternity issue was not decided so the issue was not res judicata. Compare East v. Pike, 163 Ga. App. 375, 376 (294 SE2d 597) (1982) (paternity issue was decided in previous divorce proceeding and, therefore, was res judicata in the subsequent URESA petition); Macuch v. Pettey, 170 Ga. App. 467, 468 (317 SE2d 262) (1984); Hardy v. Arcemont, 213 Ga. App. 243, 245 (444 SE2d 327) (1994); see Dept. of Human Resources v. Fleeman, 263 Ga. 756, 757-758 (439 SE2d 474) (1994).

The trial court erred by dismissing the petition.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A95A0411.
    In the Interest of R. D. F., a child.
    (455 SE2d 77)
   Andrews, Judge.

The juvenile court granted R. D. F.’s motion to dismiss the delinquency petition for failure to hold a hearing on the petition within the time limit set forth in OCGA § 15-11-26 (a). The State appeals pursuant to OCGA § 5-7-1.1

OCGA § 15-11-26 (a) provides that: “After the petition has been filed the court shall fix a time for hearing thereon, which, if the child is in detention, shall not be later than ten days after the filing of the petition. In the event the child is not in detention, the court shall fix a time for hearing thereon which shall be not later than 60 days from the date of the filing of the petition.” The petition alleging delinquency in this case was filed on June 6, 1994. It is undisputed that R. D. F. was not held in detention so the 60-day limit applies. On June 22, 1994, the juvenile court issued a summons to the child and the custodial parent requiring them to be in court for a hearing set for June 29, 1994. On June 29, 1994, after the hearing, the juvenile court associate judge issued findings and recommendations stating: “This matter was set for an arraignment hearing on the 29th day of June, 1994, at 1:30 p.m. The child denies the charges in the said petition and requests that he be represented by an attorney. It appearing that the child qualifies for court appointed counsel; IT IS THEREFORE RECOMMENDED that the said case be continued for good cause shown and remanded to the trial calendar for hearing at 1:30 p.m., the 19th day of August, 1994, before [the juvenile court judge].” On August 22, 1994, the juvenile court judge issued an order confirming that the petition was scheduled for an adjudicatory hearing on August 19, 1994 and stating that the adjudicatory hearing was continued until October 28, 1994.

On August 29, 1994, R. D. F. filed a motion seeking dismissal of the petition because no hearing was held on the petition during the 60-day limit of OCGA § 15-11-26 (a). We have previously held that, where the child is not held in detention, OCGA § 15-11-26 (a) requires that the juvenile court fix a hearing date for such hearing to be held within 60 days from the date the petition was filed. In the Interest of R. O. B., 216 Ga. App. 181 (453 SE2d 776) (1995). It is not sufficient for the juvenile court to merely enter a date-setting order before the 60-day limit expires, which order sets the hearing for a date after the expiration of the 60-day limit. To comply with the statute, the court must fix a date for the hearing to be held within the 60-day period. In the Interest of M. D. C., 214 Ga. App. 59, 60-61 (447 SE2d 143) (1994). Of course, if the hearing has originally been set to be held within the 60-day limit, it may be held outside the 60-day limit if a valid continuance has been granted. Id.

Decided February 23, 1995

Reconsideration denied March 9, 1995

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Bradley J. Boyd, Assistant District Attorneys, for appellant.

Wilma E. Espy, for appellee.

In the case at bar, the only hearing which was set to be held within 60 days after the petition was filed was the arraignment hearing held on June 29. “ ‘The arraignment hearing is an optional formal hearing which may be conducted in conjunction with the detention hearing or in a separate hearing. The purpose of the arraignment hearing is to formally advise the child of his rights to counsel, to remain silent and to a hearing before the judge; to advise him of the allegations as they are stated in the petition; and to offer the child an opportunity to enter an admission or a denial to the charges against him.’ Uniform Juvenile Court Rule 10.1. On the other hand, ‘(t)he purpose of the adjudicatory hearing is to determine if the allegations contained in the petition are true.’ Uniform Juvenile Court Rule 11.1. See C. P. v. State, 167 Ga. App. 374, 375 (2) (306 SE2d 688) (1983). Because of the different purposes for arraignment and adjudicatory hearings, the time limits established by OCGA § 15-11-26 (a) cannot be met by substituting an arraignment for an adjudicatory hearing.” In the Interest of L. A. E., 214 Ga. App. 268, 269 (447 SE2d 627) (1994).

The adjudicatory hearing in this case was originally scheduled to be held on August 19, 1994, more than 60 days after the petition was filed. Since the 60-day limit of OCGA § 15-11-26 (a) is jurisdictional and must be strictly observed, the juvenile court correctly dismissed the petition. In the Interest of R. O. B., supra.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       The State’s appeal from the dismissal in this case is the equivalent of an appeal from an order sustaining a plea in bar for violation of the right to a speedy trial. See State v. Benton, 246 Ga. 132 (269 SE2d 470) (1980); Lett v. State, 164 Ga. App. 584, 587 (298 SE2d 541) (1982); J. B. H. v. State of Ga., 139 Ga. App. 199, 203 (228 SE2d 189) (1976).


author: Ruffin, Judge.

text:
    A92A2051.
    BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. DANIELS et al.
    (455 SE2d 120)
   Ruffin, Judge.

In Bd. of Regents of the Univ. System of Ga. v. Daniels, 208 Ga. App. 195 (430 SE2d 45) (1993), this court affirmed the trial court’s dismissal of the Board’s claim of sovereign immunity. However, in Bd. of Regents of the Univ. System of Ga. v. Daniels, 264 Ga. 328 (446 SE2d 735) (1994), the Supreme Court reversed our affirmance and remanded the case to this court with direction that the case be further remanded to the trial court for proceedings consistent with the Supreme Court’s decision. Accordingly, our judgment is vacated and the judgment of the Supreme Court is made the judgment of this court. The case is remanded to the trial court for proceedings consistent with those outlined in the Supreme Court’s decision.

Decided March 9, 1995.

Michael J. Bowers, Attorney General, Dennis R. Dunn, Alfred L. Evans, Jr., Senior Assistant Attorneys General, for appellant.

William J. Murray, for appellees.

Judgment reversed and remanded with direction.

McMurray, P. J., and Blackburn, J., concur.


author:
Johnson, Judge.
      Beasley, Chief Judge, Andrews, Judge,

text:
    A94A2084.
    WATTS v. JAFFS et al.
    (455 SE2d 328)
   Johnson, Judge.

Debbie Jaffs and her husband brought this action against William Watts seeking to recover for injuries sustained when Jaffs fell down the steps of an apartment building owned by Watts. Jaffs was ascending the stairs of the building to visit a tenant when she lost her footing. She reached for a handrail to avoid falling, but none was present and she fell to the bottom of the stairs. The Jaffs complain that Watts was negligent in failing to provide a handrail and in failing to post a sign warning of the danger. Watts filed a motion for summary judgment, which the trial court denied. We granted Watts’ application for interlocutory appeal.

Watts’ motion for summary judgment was based on the premise that the absence of a handrail is a patent condition and that because Jaffs had equal knowledge of the condition, she is precluded from recovery. We disagree and affirm the order of the trial court. Watts is correct that there is no duty to warn against obvious or patent dangers which may be observed and avoided by the exercise of ordinary care. See Smith v. Housing Auth. of the City of Athens, 212 Ga. App. 503, 506 (441 SE2d 847) (1994). However, the fact that a defect is obvious does not necessarily bar recovery when the defect is in violation of a duty created by a statute or administrative regulation. Bastien v. Metropolitan Park Lake Assoc., 209 Ga. App. 881, 882 (434 SE2d 736) (1993); Commerce Properties v. Linthicum, 209 Ga. App. 853, 854 (2) (434 SE2d 769) (1993). The Official Code of Georgia provides that a landlord must keep the premises in repair and is responsible for damages arising from the failure to do so. OCGA §§ 44-7-13; 44-7-14. The Code also specifically provides that a landlord cannot avoid his duty to repair created by housing codes. OCGA § 44-7-2 (b) (3); Thompson v. Crownover, 259 Ga. 126, 129 (3) (381 SE2d 283) (1989). In Bastien, supra, we reversed the grant of summary judgment to the landlord where a tenant attributed her injuries to the absence of a handrail and a building code required that a handrail be provided. In this case, two years prior to the accident, the City of Savannah adopted the “One and Two Family Dwelling Code,” which requires that handrails be provided on at least one side of stairways having three or more steps. Savannah City Code, Art. G, Sec. 8-1131; R-214.1. Watts does not dispute the contention that he is bound by the Savannah City Code. Nor does he deny that the stairway in his two-unit apartment building has more than three steps and at the time of the accident had no handrails in place. Watts also defends on the basis that a handrail had previously been in place, but that he removed it a month before the accident so it could be repaired. As stated above, a landlord has a duty to keep the premises in repair. OCGA § 44-7-13. A jury must decide whether Watts failed to exercise reasonable care with regard to the handrail and whether the condition constituted a violation of the dwelling code. See Thompson, supra at 129 (4), (5). Likewise, issues of Jaffs’ own negligence and the proximate cause of her fall are for the jury to resolve. See Spencer v. Little Brownie Properties, 203 Ga. App. 324, 325 (416 SE2d 851) (1992). As genuine issues of material fact remain, the trial court did not err in denying Watts’ motion for summary judgment.

Watts’ reliance upon cases not involving residential housing to support his position that summary judgment should have been granted is misplaced. In recent years our courts have come to recognize a state policy of prevention of unsafe residential housing, holding landlords liable in tort for failure to correct conditions that exist in violation of the duties created by the housing codes and other legislation. See Thompson, supra. Our holding here is consistent with that policy.

Judgment affirmed.

McMurray, P. J., Pope, P. J., Blackburn, Smith and Ruffin, JJ., concur. Beasley, C. J., concurs specially. Birdsong, P. J., and Andrews, J., dissent.

Beasley, Chief Judge,

concurring specially.

I concur because the policymaker, in this case the city through ordinance, has decreed the landlord’s duty to provide a handrail. The obvious purpose is to assure a measure of safety to persons traversing stairs, to prevent their injury from falling. Violation of the ordinance constitutes negligence per se. See Motes v. 6 ‘S’ Co., 186 Ga. App. 67 (366 SE2d 358) (1988). Thus defendant has not negated the first element of plaintiffs burden of proof, “fault on the part of the owner.” Gyles, Inc. v. Turner, 184 Ga. App. 376, 377 (361 SE2d 538) (1987). It is a jury question whether such negligence was the proximate cause of the injury. Northwestern Mut. Life Ins. Co. v. McGivern, 132 Ga. App. 297, 301 (2) (208 SE2d 258) (1974).

Enforcement of the ordinance is not limited to the imposition of fines or other sanctions by the governing authority which discovers the violation by way of its own investigation or monitoring or by way of citizen complaint. It is also enforceable by holding liable, to persons for whom the requirement exists, those whose failure to comply causes injury. See Huckabee v. Grace, 48 Ga. App. 621, 632 (173 SE 744) (1934); Jones v. Dixie Drive It Yourself System, 97 Ga. App. 669 (104 SE2d 497) (1958); Potts v. Fidelity Fruit &c. Co., 165 Ga. App. 546, 547 (301 SE2d 903) (1983).

Nor has defendant foreclosed the second element required to be proved by plaintiff, i.e., “ignorance of the danger on the part of the invitee.” (Punctuation omitted.) Gyles, Inc., supra.

Equal knowledge of the hazard did not exist as a matter of law. The landlord knew the handrail had been removed, but the guest was unaware of its absence until she began to fall. She testified that she grabbed for it, but nothing was there, and she went all the way to the bottom of the staircase. She explained that she did not realize there was no handrail as she ascended the stairs because one does not normally assure oneself that such is present before beginning a climb. It is true that the lack of a handrail was obvious to one who looked for it, as she admitted, but whether it was a lack of due care for her not to do so, is a jury question. This case differs from Motes, supra, in that plaintiff Motes “knew as she ascended and descended the steps that there was no handrail.” Id. at 67. Her knowledge of this condition “was equal to that of appellee” 6 ‘S’ Company. Id. at 68.

Sullivan v. Quisc, Inc., 207 Ga. App. 114 (427 SE2d 86) (1993), which cites Motes, is also an equal knowledge case. There was no conflicting evidence on this point of fact. Moreover, it did not involve the absence of a handrail. Instead, plaintiff fell on a sloped threshold which, even if it were regarded as a hazardous condition, was discoverable and avoidable by plaintiff in the exercise of ordinary care, as a matter of law. Id. at 115. Plaintiff Sullivan simply did not observe the floor upon where she was placing her feet. Thus she had constructive equal knowledge.

Andrews, Judge,

dissenting.

I respectfully dissent.

Jaffs brought this action against Watts for injuries she suffered when she lost her footing and fell while ascending stairs leading to second story apartments located in an apartment building owned and rented by Watts. Jaffs was not a tenant in the building, but was going to visit a friend who was a tenant in one of the upstairs apartments. Jaffs contends that, if there had been a handrail on the stairs, she could have grabbed it and avoided the fall. The record shows that the stairs did not have a handrail at the time of the fall because Watts had temporarily removed it to make repairs to the handrail. Jaffs claims that Watts was negligent in failing to have a handrail on the stairs when the accident occurred, and she produced evidence that the lack of a handrail violated a city housing ordinance. Jaffs admitted that the absence of a handrail was plainly visible.

Relying on Thompson v. Crownouer, 259 Ga. 126 (381 SE2d 283) (1989) and Bastien v. Metropolitan Park Lake Assoc., 209 Ga. App. 881 (434 SE2d 736) (1993) (applying Thompson, supra), the majority states that “the fact that a defect is obvious does not necessarily bar recovery when the defect is in violation of a duty created by a statute or administrative regulation.” Majority, p. 566. Then, citing Spencer v. Little Brownie Properties, 203 Ga. App. 324, 325 (416 SE2d 851) (1992), the majority concludes that, despite Jaffs’ admission that the defect was plainly visible, a jury question remains as to Watts’ liability.

The effect of Thompson v. Crownover, supra, on the application of the equal or superior knowledge rule as a bar to recovery in landlord-tenant cases has been variously characterized by this Court. See Phillips v. King, 214 Ga. App. 712 (448 SE2d 780) (1994) (Thompson found strict application of equal or superior knowledge rule would be inconsistent with the landlord’s statutory duty to repair; tenant’s equal knowledge will not always preclude recovery; issue is whether the tenant could have avoided the accident); Roth v. Wu, 199 Ga. App. 665 (405 SE2d 741) (1991) (Thompson involved case where the defect rendered the apartment unsafe or uninhabitable); Harris v. Sloan, 199 Ga. App. 340 (405 SE2d 68) (1991) (Thompson not applicable in latent defect cases); Wells v. C & S Trust Co., 199 Ga. App. 31 (403 SE2d 826) (1991) (unsafe heater in Thompson was inherently dangerous and tenant had no alternative but to use it); Spence v. C & S Nat. Bank, 195 Ga. App. 294 (393 SE2d 1) (1990) (dicta suggesting that, after Thompson, issues such as negligent failure to repair, knowledge of the danger, and the “necessity rule” are reserved solely to the factfinder); Hall v. Thompson, 193 Ga. App. 574 (388 SE2d 381) (1989) (Thompson involved inherently dangerous defect where a jury question existed as to whether or not the tenant could have avoided the danger).

In Thompson, the tenant notified the landlord on several occasions that the heater in the apartment was defective and in need of repair. In addition, the housing inspector notified the landlord that the heating facilities were in poor condition and constituted a hazard rendering the property unsafe for human occupancy. The landlord failed to repair the heater after these notices, and the tenant was eventually seriously burned by the defective heater.

The majority opinion in Thompson v. Crownover, supra, was fully adopted by only three justices; one justice in the majority wrote a special concurrence, and three justices dissented without opinion. In declaring that a landlord cannot avoid duties created by statute or housing codes (see OCGA §§ 44-7-13; 44-7-2 (b)), the majority opinion in Thompson, supra at 129, stated that “[t]he public policy of this state supports the position advanced by the Restatement of Law 2d, Property, § 17.6, which [states as] follows: ‘A landlord (should be) subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenants by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of: (1) an implied warranty of habitability; or (2) a duty created by statute or administrative regulation.’ ” However, official comment (b) accompanying the Restatement section quoted in the majority opinion makes clear that, although the landlord is subjected to tort liability, “he has available all the usual defenses to an action in negligence, including contributory negligence and assumption of risk.”

Despite the tenant’s knowledge of the defective heater, a four-justice majority in Thompson, nevertheless, concluded that there was a jury question as to the landlord’s liability for the tenant’s injuries. However, only three of the four justices in the majority adopted the unqualified position that whether or not the tenant had assumed the risk of injury was a jury question. Id. at 129 (5). The same three justices also concluded that whether or not the tenant was compelled by necessity to use the defective heater was a question of fact. Id. at 130 (6). Justice Hunt, one of the four justices comprising the majority, concurred specially writing that: “[T]he central issue is whether [the tenant’s] admitted knowledge of the heater’s condition acts, under the doctrine of assumption of the risk, as a bar to any recovery. But for the ‘rule of necessity’ I think it would.” (Footnote omitted.) Id. at 130.

Thus, there was no majority holding in Thompson abandoning application of the equal or superior knowledge rule as a bar to recovery by tenants in cases where landlords are alleged to be in violation of duties created by statute or housing codes, nor did Thompson establish that in all such cases it is a jury question as to whether the landlord is liable for damages arising from a violation of those duties. “[Although Thompson has reaffirmed the existence in Georgia of the landlord’s duty to exercise reasonable care in repairing defective conditions and keeping his premises in repair . . . nevertheless the classic rules of negligence still apply in this state. These rules impose liability only where the landlord lias actual or constructive superior knowledge [of the alleged defective condition], and the plaintiff has a duty to exercise ordinary care for her own safety.” Hall, supra at 575; Powell v. Woodridge Condo. Assn., 206 Ga. App. 176, 178 (424 SE2d 855) (1992). “This is merely a manifestation of the general rule regarding the liability of proprietors for injuries to invitees occurring on the premises.” (Citations omitted.) Richardson v. Palmour Court Apts., 170 Ga. App. 204, 205 (316 SE2d 770) (1984).

The four-justice majority in Thompson did, however, conclude that, despite the tenant’s knowledge of the defective heater, she was not barred from recovery because a question of fact existed in that case under the “necessity rule.” Id. at 130. Accordingly, the primary significance of Thompson as to application of the equal or superior knowledge rule was the Supreme Court’s sanction of a developing line of “necessity rule” cases decided in this Court tempering strict application of the rule by recognizing that a tenant’s equal knowledge of a defective condition will not necessarily bar recovery where a factual issue exists as to whether the tenant had no alternative but to assume the risk and encounter the dangerous condition. See Phelps v. Consolidated Equities Corp., 133 Ga. App. 189, 193 (210 SE2d 337) (1974); Hull v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269 (235 SE2d 601) (1977); Grier v. Jeffco Mgmt. Co., 176 Ga. App. 158 (335 SE2d 408) (1985); Fitzgerald v. Storer Cable Communications, 213 Ga. App. 872, 874 (446 SE2d 755) (1994). By implication, Thompson overruled contrary authority in cases such as Alexander v. Rhodes, 104 Ga. 807 (30 SE 968) (1898); Clements v. Blanchard, 141 Ga. 311, 312 (80 SE 1004) (1914); and Hearn v. Barden, 115 Ga. App. 708, 710 (155 SE2d 649) (1967), which held that, where the tenant knew of the defective condition in the rented premises and failed to avoid it, he assumed the risk of injury and was barred from recovering from the landlord, despite any showing of necessity.

Since the absence of a handrail was plainly visible to Jaffs, she had equal knowledge of the defect in this case, and is barred from recovery under the equal or superior knowledge rule. As demonstrated above, Thompson, supra, does not require a contrary result. In Bastien, supra, cited by the majority, the facts were similar to those in the present case. There, a tenant fell while negotiating steps leading to her apartment and sued the landlord alleging that there was no handrail on the stairs, and that the absence of a handrail violated an applicable building code. Id. at 881-882. Thompson was relied upon to support the conclusion that, even though the defect was obvious to the tenant, the trial court erred by granting summary judgment in favor of the landlord under the equal knowledge rule because the landlord could not avoid duties created by housing codes. Id. at 882. There was no discussion as to whether the tenant claimed under the “necessity rule” that there was no other means of ingress or egress to the apartment. To the extent Bastien construes Thompson as abolishing the equal knowledge rule as a bar to recovery under these circumstances, it should be overruled. The majority’s further reliance on Spencer, supra, as authority that a factual issue exists as to whether Jaffs had equal knowledge of the defect is misplaced. In Spencer, the plaintiff fell after she lost her balance on stairs and reached out for the handrail, which came loose when she grabbed it. The alleged negligence was not an obvious failure to provide a handrail, but a negligent failure to properly maintain the handrail, which presented no obvious hazard to an invitee. Id. at 324.

Violation of a housing code is negligence per se, no more — no less. Negligence per se is not liability per se (see Northwestern Mut. Life Ins. Co. v. McGivern, 132 Ga. App. 297, 301 (208 SE2d 258) (1974); Biggs v. Long, 212 Ga. App. 195, 199, n. 4 (441 SE2d 677) (1994)), nor does it foreclose a determination, as a matter of law, that a tenant’s own negligence was the sole proximate cause of injury. Thompson v. Crownover, 186 Ga. App. 633, 636 (368 SE2d 170) (1988), rev’d on other grounds, 259 Ga. 126, supra. As this Court noted in addressing a premises liability claim against a restaurant in Sullivan v. Quisc, Inc., 207 Ga. App. 114, 116 (427 SE2d 86) (1993), “[e]ven if plaintiff could show that the maintenance of the threshold was negligence per se as a violation of the building code, she would nevertheless by [sic] precluded from recovering because of the equal knowledge rule.”

Decided March 9, 1995

Beckmann & Pinson, Luhr G. Beckmann, Jr., Tracy A. Chesser, Walter W. Ballew III, for appellant.

Richard C. Metz, for appellees.

The majority’s holding is neither good law nor good “policy.”

I am authorized to state that Presiding Judge Birdsong joins in this dissent.

         The fact that Jaffs was a guest rather than a tenant is immaterial, as a person on the premises by the express or implied invitation of the tenant stands in the tenant’s shoes and has the same right of recovery for injuries arising from the landlord’s failure to keep the premises in repair as does the tenant. See Hohnerlein v. Thomas, 186 Ga. App. 282 (367 SE2d 95) (1988); Paul v. Sharpe, 181 Ga. App. 443, 444 (1) (352 SE2d 626) (1987).

       I agree with the majority that, as a guest present by express or implied invitation, Jaffs stood in the tenant’s shoes, and her rights of recovery for failure of the landlord to keep the premises in repair are generally controlled by the rules governing the tenant’s right to recovery. Hohnerlein v. Thomas, 186 Ga. App. 282 (367 SE2d 95) (1988). However, an important exception exists. Because she was not a tenant in the apartment she was visiting, Jaffs was not entitled to claim under the “necessity rule” that there was no other means of ingress or egress, and that she was forced to assume the risk of ascending the stairs without a handrail. Taylor v. McDonald, 183 Ga. App. 320, 321 (359 SE2d 1) (1987); Hohnerlein, supra at 283. In any event, Jaffs does not attempt to make any claim under the necessity rule, and her claim is subject to application of the equal or superior knowledge rule.


text:
    A94A2143.
    TAYLOR v. THE STATE.
    (455 SE2d 340)
   Ruffin, Judge.

James Lemar Taylor was convicted of selling cocaine in violation of the Georgia Controlled Substances Act. He appeals from the judgment of conviction and sentence, raising as his sole enumeration of error the trial court’s failure to require the State to disclose the identity of a confidential informant.

An undercover officer and a confidential informant went to a motel room to purchase cocaine from the person in the room, later identified as James Lemar Taylor. The confidential informant told the officer the seller’s name was “Lemar Taylor.” The officer asked Taylor for a “slab” which meant $100 worth of crack cocaine. Taylor then allegedly told the officer and the confidential informant to leave and to come back in ten minutes. They did so, and when they returned, Taylor handed the officer a solid piece of crack cocaine.

At trial, the officer positively identified Taylor as the person who sold her cocaine. She testified that she also identified Taylor at his arrest months after the drug purchase as the individual who sold her drugs. At that time she learned that the first name given to her by the confidential informant was incorrect and that Taylor’s first name was actually “James.” Testifying in his own defense, Taylor denied selling cocaine to the undercover officer.

Disclosure of an informant’s identity can be compelled when the informant is “ ‘the only witness in a position to amplify or contradict the testimony’ of the [defendant] and the police officer. [Cit.]” Moore v. State, 187 Ga. App. 387, 391 (2) (370 SE2d 511) (1988). However, if the informant’s identity is sought for impeachment purposes only, disclosure cannot be compelled. Id.

Even though the informant was the only witness to the cocaine purchase, the record demonstrates that his identity was not sought either to amplify or contradict Taylor’s testimony or the undercover officer’s testimony regarding the cocaine purchase. Compare Moore, supra at 392; Jones v. State, 192 Ga. App. 186 (384 SE2d 273) (1989). Instead, during the cross-examination of the officer, Taylor sought disclosure of the informant’s identity and of the officer’s knowledge of the informant’s reliability to impeach the officer’s in-court identification of him as the person who sold her drugs. Taylor’s request was premised on the erroneous conclusion that the officer’s identification was based solely on information obtained from the confidential informant. However, not only does the record show that the officer independently identified Taylor, at his arrest and at trial, based on her own observation of Taylor during the cocaine purchase, but disclosure is not authorized for impeachment purposes. Hunt v. State, 204 Ga. App. 799 (1) (420 SE2d 656) (1992). Therefore, we find no abuse of discretion in the trial court’s refusal to compel disclosure of the informant’s identity.

Decided March 9, 1995.

Cork & Cork, Patrick C. Cork, for appellant.

H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Birdsong, Presiding Judge. Blackburn, Judge,

text:
    A94A2151.
    HESTLEY v. THE STATE.
    (455 SE2d 333)
   Birdsong, Presiding Judge.

Michael David Hestley appeals from his judgment of conviction of burglary, theft by taking, and entering an automobile; his co-defendant was acquitted of all charges in the joint trial. Appellant enumerates five errors. Held:

1. Appellant’s assertion that the trial court erred in denying his motion to suppress is without merit. The trial court entered detailed findings of fact and concluded that the initial investigative stop of appellant was lawful, and that a valid consent to search the vehicle was thereafter obtained. In considering the legality of a search, this court can consider all relevant evidence of record, including that adduced at both the trial and at the suppression hearing. Jones v. State, 187 Ga. App. 421, 422-423 (370 SE2d 784). Determinations of credibility and fact made by a trial judge after a suppression hearing are accepted by appellate courts unless clearly erroneous. Baldwin v. State, 263 Ga. 524, 525 (435 SE2d 926). Although the officer who initially detained appellant’s vehicle did not testify, there exists enough evidence of record to establish that the findings made by the trial court were not clearly erroneous.

It had been reported to the sheriff’s office that an unidentified white van had been involved in some burglaries; the reporting witnesses believed the van might be a Chevrolet but they were not positive. It was also reported that the van was a panel van that did not have a lot of windows, and that it was not a luxury van. Further, photographs of appellant’s van, introduced in evidence, reveal that it was a white panel van without a lot of windows; the van was a Chevrolet. The detaining officer was aware that a “lookout” had been placed on the white van. On July 10, 1991, the Butts County Road Department had a crew working on county roads; they noticed a white van riding back and forth on Rising Star Church Road and Old Bethel Road. One of the family members of the superintendent of the road department had been the victim of a lawn mower theft and a white van had been seen leaving his residence. The road department crew became suspicious because the van “just kept riding back and forth like it was possibly casing the place out or something of that nature.” A member of the road department called the sheriff’s office and reported their suspicions. This report is tantamount to the report of a concerned citizen. A concerned citizen has always been given a preferred status regarding the testing of the credibility of his reported information. Cichetti v. State, 181 Ga. App. 272, 273 (1) (351 SE2d 707). After receiving this call, the detaining officer and the police chief started a search for the van. Shortly after 4:00 p.m., the detaining officer found and stopped the van at the intersection of Rising Star Church Road and Old Bethel Road. The detaining officer reported by radio to the police chief that he “was making a traffic stop on the white van that [the police] had been getting a lookout on at Rising Star Church Road at its intersection with Old Bethel.”

The evidence of record supports the conclusion of the trial court that reasonable suspicion existed for the stopping of the vehicle. Vansant v. State, 264 Ga. 319 (443 SE2d 474) clearly is distinguishable. In Vansant, according to the facts relied upon by the majority, the only relevant information known about the van was that it was white and driven by a white male; thereafter, a white van was stopped approximately one mile from the crime scene. In this case, a white panel van that “didn’t have a lot of windows,” and believed to be a Chevrolet, was reported as being involved in prior burglaries. A concerned citizen’s report was received to the effect that a white van was driving suspiciously back and forth on an identified road area as though casing out a residence. Shortly thereafter, appellant’s van, a white panel Chevrolet van, was found in the same general vicinity as that reported telephonically in the concerned citizen’s report. The detaining officer was aware of the lookout on the van and of the concerned citizen’s report. Information transmitted by the police to one another, by any acceptable means of communication, can provide sufficient grounds to create an articulable suspicion to justify an automobile stop. Walton v. State, 194 Ga. App. 490, 491 (2) (390 SE2d 896). We conclude there exists sufficient evidence of record to support a finding that the detaining officer had an articulable, reasonable suspicion for the stop (see generally State v. Fowler, 215 Ga. App. 524 (451 SE2d 124)); clearly this stop was neither arbitrary nor harassing. Compare Smith v. State, 182 Ga. App. 58 (354 SE2d 681) (physical precedent only) where the degree of suspicion was far less than shown in the case at bar.

Regarding appellant’s subsequent consent to search, the State has the burden of proving that the necessary consent was freely and voluntarily given, a burden that is not satisfied by showing mere submission to authority. Garcia v. State, 195 Ga. App. 635, 636 (1) (394 SE2d 542). Inherent in the trial court’s findings supporting denial of the suppression motion is the finding that appellant’s consent to search was made voluntarily. Id. at 637 (1). Voluntariness of consent must be determined from all the circumstances, and where a valid consent to search exists, the need either for probable cause or a search warrant is eliminated. Id. Appellant’s contention that consent was tainted by an illegal stop is without merit. As the initial stop was lawful, his subsequent consent was not tainted by any form of illegal arrest. Compare Mallarino v. State, 190 Ga. App. 398, 402 (2) (379 SE2d 210). Considering the totality of the circumstances, we find that the trial court’s findings were not clearly erroneous and that the resulting search and seizure were lawful.

2. Appellant asserts the trial court erred in admitting, over objection, testimony of a sheriffs department’s burglary investigator, as to whether, based on his training and experience, items are sometimes sold when they are stolen and whether the crime lab would process fingerprints taken from a burglary crime scene.

As to the first question, the sole ground for objection at trial was that the answer called for a conclusion of the witness. Examining the content of the witness’ testimony in its entirety, it appears that the trial court tacitly accepted the witness as a qualified expert in the field of burglary investigation. The witness expressed his conclusion, as to whether stolen property is sometimes sold, based on his knowledge and experience. “The opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” OCGA § 24-9-67; see generally Loper v. Drury, 211 Ga. App. 478, 481 (1) (b) (440 SE2d 32). The trial court did not err in overruling the objection on the limited grounds appellant asserted at trial. Further, as a general rule, an objection on a specific ground at trial waives, on appeal, any objection to that evidence on other grounds. Norman v. State, 197 Ga. App. 333, 334 (2) (398 SE2d 395). Assuming arguendo, the investigator merely was testifying as a lay witness, he still could express his opinion so long as he testified to sufficient facts to form the basis thereof. O’Kelley v. State, 175 Ga. App. 503 (3) (333 SE2d 838). The record adequately reflects that the investigator’s opinion was based on his personal observations during burglary investigations and by reasons of his training and experience. Norman, supra.

As to the second question, the sole ground for objection asserted at trial was lack of relevancy. Accordingly, on appeal, all other grounds are waived. “Admissibility of evidence is a matter which rests largely within the discretion of the trial court.” Norman v. State, supra at 336 (4). “ ‘Unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.’ (Citations and punctuation omitted.)” Id. In the absence of abuse of discretion, we will not reverse when a trial court overrules a relevancy objection and allows the admission of evidence. Appellant has failed to establish that the trial court abused its discretion in this instance.

Assuming arguendo the trial court had erred in overruling both of appellant’s specific objections, we are satisfied that any such errors would have been harmless under the “high probability” test of Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

3. In his third enumeration of error, appellant contends the trial court erred in allowing the burglary investigator to testify on rebuttal over appellant’s objection thereto. Appellant, by way of his appellate brief and enumeration of error, cites this court to pages 79 and 80 of the trial transcript. The trial transcript at those pages shows that two objections were posed by the prosecuting attorney as to questions asked by appellant’s attorney and that the trial court sustained both objections. Whether the trial court erred in sustaining those objections is beyond the scope of appellant’s enumeration of error and fails to preserve these particular issues for appellate review. See Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649).

Appellant contends that rebuttal testimony is only appropriate to refute or explain testimony introduced by the defendant. Assuming arguendo that the admitted testimony constituted new evidence, nevertheless, “ ‘[r]eopening evidence is in the sound discretion of the trial court and will not be disturbed when no abuse of discretion is shown.’ ” Brown v. State, 210 Ga. App. 59, 60 (2) (435 SE2d 274); accord Sharp v. State, 203 Ga. App. 475, 476 (2) (416 SE2d 901).

Appellant now asserts that the trial court’s ruling was erroneous in light of Culpepper v. State, 132 Ga. App. 733 (209 SE2d 18), which in essence held an accused cannot be deemed to have waived his Fifth Amendment privilege against self-incrimination merely because he testified at a suppression hearing in an attempt to protect his Fourth Amendment rights, and thus concluded “ ‘that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.’ ” Id. at 734 (3). When the witness was called in rebuttal, appellant’s counsel initially stated: “Now, Your Honor, I object to this line of questioning. That motion has been determined by this court. It was not the subject of the defense that we put forth, and I don’t think it’s proper for the rebuttal to be — to embrace an area that we haven’t covered yet.” This colloquy is tantamount either to a general objection or to an objection that the proposed testimony was beyond the scope of legitimate rebuttal; under either interpretation, it did not constitute a specific objection to the infringement of appellant’s self-incrimination privilege and therefore did not preserve a Fifth Amendment appellate issue, based on our holding in Culpepper, supra. See Norman, supra at 334 (2). There being no constitutional issue raised below and ruled upon, such issue therefore is not preserved on appeal. Meders v. State, 260 Ga. 49, 54 (2) (b) (389 SE2d 320); Whatley v. State, 196 Ga. App. 73, 75 (1) (395 SE2d 582). Appellant’s second objection merely was based on a claim that the testimony did not constitute a prior consistent statement made by appellant; it likewise failed to raise adequately and preserve for appellate review a claim of a violation of appellant’s Fifth Amendment privilege against self-incrimination. Meders, supra; Whatley, supra. Appellant’s third enumeration, as crafted, is without merit.

4. Appellant’s claim that the trial court erred in its charge to the jury by stating that appellant had the burden to explain his possession of recently stolen property is without merit. The trial court charged that a finding of recent possession of stolen property by appellant “places upon him the duty of going forward with evidence to explain his possession, keeping in mind that the burden of proof never shifts in a criminal case and the ultimate burden of persuading the jury of the guilt of the defendant beyond a reasonable doubt is always upon the State.” The possession of recently stolen goods, unaccounted for, raises an inference that the possessor is the one who stole the goods, and if the accused does not want this inference to arise in his case, he must account for that possession. A defendant may be convicted for theft with neither direct proof nor circumstantial evidence, aside from this inference, that he committed the theft. The reasonableness of the explanation is a jury question. Buchannon v. State, 199 Ga. App. 609, 610 (405 SE2d 583). Viewing the charge in its totality, we find no error.

5. The trial court denied appellant’s motion for directed verdict of acquittal, which was based on a claim of insufficiency of the evidence. The correct standard of review of such a motion is the beyond a reasonable doubt standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Williams v. State, 199 Ga. App. 566, 567 (1) (405 SE2d 716). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which convicted. Jackson v. Virginia, supra. The trial court did not err as enumerated. Watkins v. State, 212 Ga. App. 296, 298 (4) (441 SE2d 801).

Judgment affirmed.

Beasley, C. J., McMurray, P. J., Pope, P. J., Andrews, Johnson and Smith, JJ., concur. Blackburn and Ruffin, JJ., dissent.

Blackburn, Judge,

dissenting.

I must respectfully dissent to Division 1 of the majority’s opinion.

I do not believe that the majority has appropriately applied controlling appellate precedent to the undisputed facts of the case. The warrantless stop of the white Chevrolet van driven by Hestley was not authorized under the controlling precedent. At the time of the stop, Hestley was lawfully proceeding down Rising Star Road in the white van and was not committing any traffic violations. There was nothing to identify Hestley’s vehicle as the one seen in the area of the prior thefts or as the vehicle seen by members of the road crew suspiciously driving up and down Rising Star Church and Old Bethel Roads. More importantly, there was no evidence linking Hestley’s vehicle to any criminal activity prior to the unjustified, illegal intrusion.

The undisputed, facts of this case are controlled by the Supreme Court’s recent decision in Vansant v. State, 264 Ga. 319 (443 SE2d 474) (1994). In Vansant, the Supreme Court held that the detaining officer lacked the requisite particularized basis for stopping the driver of a white van involved therein. The officer had received, via a police radio broadcast, information supplied by an eyewitness that the obviously intoxicated driver of a white van had been involved in a hit- and-run accident, and the driver had been identified by name, although the driver’s identity was not a factor in the stop. The detaining officer in Vansant did not observe any traffic violations or damage to the vehicle prior to the stop.

As in Vansant, the detaining officer in the case at bar did not observe any traffic violations prior to the stop and did not have the requisite particularized basis for suspecting that the driver of this particular white van was involved in criminal activity. Id. “Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The U. S. Supreme Court recognized the difficulty in defining the elusive concept of what cause is sufficient to authorize police to stop a person, and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity. This demand for specificity in the information upon which police action is predicated is the central teaching of the Supreme Court’s Fourth Amendment jurisprudence.” (Citations and punctuation omitted.) Id. at 320 (2).

It is clear from the record that the only reason that Deputy Provence stopped Hestley was because he was driving a white van and there had been a police lookout sounded for a white van. Any white van would have been stopped. As there was no particularized and objective basis for stopping Hestley, he was illegally detained.

This court’s recent decision in State v. Fowler, 215 Ga. App. 524 (451 SE2d 124) (1994), authored by this writer but relied upon by the majority, supports the suppression of the evidence seized following the warrantless stop. In Fowler, we affirmed the trial court’s grant of the defendant’s motion to suppress based upon the detaining officer’s lack of a reasonable, articulable suspicion that the defendant had been involved in illegal activity prior to the warrantless stop. As in the present case, in Fowler, there was no factual basis that the defendant had been involved in illegal activity and the officer’s conclusion that the defendant had been involved in illegal activity was not based on anything specific that the officer observed prior to the stop. In addition, our decision in Smith v. State, 182 Ga. App. 58 (354 SE2d 681) (1987), also relied upon by majority, is physical precedent only and not binding authority.

As to the consent to search, there was no significant lapse of time between the unlawful detention and Hestley’s consent to search the van, and no intervening circumstances to dissipate the effect of the unlawful detention. Therefore, we must also hold that the consent was the product of the illegal detention and that the taint of the illegal detention was not sufficiently attenuated.

“[I]n order to eliminate any taint from an involuntary seizure or arrest, there must be proof both that the consent was voluntary and that it was not the product of the illegal detention. Proof of a voluntary consent alone is not sufficient. The relevant factors include the temporal proximity of an illegal seizure and consent, intervening circumstances, and the purpose and flagrancy of the official misconduct.

Decided March 9, 1995.

Ballard & Ballard, H. Geoffrey Slade, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

“In [Hestley’s case], we find that there was no significant lapse of time between the unlawful detention and the consent, that no intervening circumstances dissipated the effect of the unlawful detention and that the deputy’s conduct had no arguable legal basis. Therefore, we hold that the consent was the product of the illegal detention, and that the taint of the unreasonable stop was not sufficiently attenuated.” (Citations and punctuation omitted.) Brown v. State, 188 Ga. App. 184, 187 (372 SE2d 514) (1988). “The stop of [Hestley] was unauthorized and therefore the consent obtained for the search of the van was tainted and did not validate the search. [Cit.]” McKinley v. State, 213 Ga. App. 738, 740 (445 SE2d 828) (1994).

Inasmuch as the stop was unauthorized, it follows that neither the evidence obtained from the ensuing search nor the arrest could form a proper basis for the issuance of the search warrant which was ultimately obtained and, the execution of which produced the victim’s hunting knife. The good-faith exception to the exclusionary rule recognized by the U. S. Supreme Court is not applicable in Georgia in light of the legislatively-mandated exclusionary rule contained in OCGA § 17-5-30. See Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992). Accordingly, I would reverse the ruling of the trial court and grant Hestley’s motion to suppress.

I fully concur with the majority in the holdings in Divisions 2, 3, 4 and 5.

I am authorized to state that Judge Ruffin joins in this dissent.


text:
    A95A0086.
    DAVIS v. THE STATE.
    (455 SE2d 115)
   Birdsong, Presiding Judge.

Ronald Lee Davis appeals his judgment of conviction of violation of the Georgia Controlled Substances Act, sale of cocaine. His sole enumeration is that the trial court erred in denying his motion to suppress identification testimony.

An undercover police officer made a buy of cocaine from appellant who was observed sitting on a large electrical box in a housing area and wearing a Georgia Bulldog shirt. A videotape was made of the transaction, and still photographs subsequently were made from the tape. Evidence was admitted of the officer’s pretrial showup identification of appellant, and the officer also made an in-court identification. His testimony was partially corroborated by the testimony of another police officer who went to the crime scene about 30 minutes later and observed appellant, who matched the detailed physical description given by the undercover officer, sitting on the electrical box and wearing a Georgia Bulldog shirt. The police officer, who gave the corroborating testimony, viewed the videotape at the police station and also identified appellant in court therefrom; the corroborating officer was “personally familiar” with appellant, having conversed with him on the street on numerous other occasions. At the time of appellant’s arrest, about two months later, a one-on-one showup identification was made by the undercover agent; thereafter, appellant made a spontaneous, voluntary statement to the effect that he recognized the undercover officer as having been in a white car and having made the “controlled buy” from appellant. Both the videotape and still photographs were admitted in evidence and shown to the jury. Held:

1. In determining whether the trial court erred in denying the motion to suppress identification testimony, this court may consider the evidence adduced both at the suppression hearing and at trial. Cf. Sanders v. State, 235 Ga. 425, 431-432 (219 SE2d 768); Jones v. State, 187 Ga. App. 421, 422-423 (370 SE2d 784).

2. “One-on-one showups have been held to be inherently suggestive.” Holbrook v. State, 209 Ga. App. 301, 302 (1) (433 SE2d 616). Thus, “[i]n determining whether a due process violation occurred in the conduct of the pretrial confrontation between the eyewitness [undercover officer] and the appellant, the test is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” McCoy v. State, 190 Ga. App. 258, 260 (3) (378 SE2d 888); accord Martin v. State, 193 Ga. App. 581, 582 (1) (388 SE2d 420). It is recognized that any psychological effect a one-on-one showup may have on a potential witness is greatly diminished when that witness is a law enforcement officer who, through experience, training or both, has learned certain witness identification techniques and procedures. Nevertheless, “ [t]he factors to be considered in evaluating whether a very substantial likelihood of irreparable misidentification exists, under the totality of the circumstances include: ‘(a) the opportunity of the witness to view the criminal at the time of the crime [although the drug transaction was of relatively short duration, the area was well illuminated by a nearby street light and the headlights of the officer’s vehicle; appellant’s face was illuminated further by the interior light of the officer’s car when appellant looked into the vehicle window; moreover, the undercover officer had the opportunity subsequently to review the videotape and the still photographs made therefrom, which preserved for investiga-

Decided March 9, 1995.

W. Steven Harrell, K. Leslie Smith, for appellant.

tive posterity appellant’s presence at the crime scene], (b) the witness’ degree of attention [immediately following the incident the undercover officer reported the location of, physical characteristics of, and certain of the clothing being worn by appellant], (c) the accuracy of the witness’ prior description of the criminal event [accuracy of the undercover officer’s degree of attention was corroborated by the independent testimony of another police officer who thereafter observed appellant in the same general location and wearing the same type of clothing as reported by the undercover officer], (d) the level of certainty demonstrated by the witness at the confrontation [although the undercover officer testified that he saw appellant twice that evening for approximately five to ten seconds and ten to fifteen seconds, respectively, that the criminal transaction lasted only for a brief period of time, and that misidentification was always possible, he expressed certainty as to his identifications of appellant — both as to the out-of-court showup identification at the police station and as to his in-court identification], and (e) the length of time between the crime and the confrontation [it was approximately two months from the date of the crime to the date when the undercover officer identified appellant at the one-on-one showup]. Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401).’ ” Montgomery v. State, 210 Ga. App. 147, 148 (3) (a) (435 SE2d 510). “Under the totality of the circumstances, we find that there existed no substantial likelihood of irreparable misidentification.” Id. at 149 (3) (a).

Additionally, “[a]ssuming arguendo some form of taint had occurred in the pretrial identification of appellant, a witness’ in-court identification may still be admitted provided [, as in this case,] it has an ‘independent origin’ therefrom. [Cit.] Moreover, the fact that a witness may have only a ‘ “fleeting” opportunity to observe’ a perpetrator at the crime scene does not per se render the in-court identification inadmissible.” Brown v. State, 192 Ga. App. 187, 189 (1) (384 SE2d 254). Considering the totality of the circumstances, we find the undercover officer’s in-court identification of appellant had such an “independent origin” in this case.

3. Assuming arguendo error had occurred in the admission of identification evidence, in view of the overwhelming evidence of appellant’s guilt, such error, even if of constitutional magnitude, would be harmless. See Palmer v. State, 186 Ga. App. 892, 897, 899 (369 SE2d 38).

Judgment affirmed.

Johnson and Smith, JJ., concur.

Edward, D. Lukemire, District Attorney, A. Robert Tawse, Jr., Assistant District Attorney, for appellee.


text:
    A95A0264.
    WHITE v. THE STATE.
    (455 SE2d 117)
   Birdsong, Presiding Judge.

Johnny Wade White appeals his conviction of child molestation, aggravated child molestation, rape, incest, cruelty to children, and aggravated sodomy of his stepdaughter. His stepdaughter was age 11 at the time she reported the incidents to school authorities. Appellant enumerates three errors as follows: Denial of due process by being denied effective assistance of counsel as required by the Sixth Amendment of the United States Constitution; denial of due process by being denied the benefit of counsel as required by Art. I, Sec. I, Par. XIV, Ga. Const. 1983; and abuse of discretion in denying motion for new trial based on his claim of ineffective assistance of counsel. Appellant’s trial counsel was appointed by the lower court. Held:

1. There exists no substantial difference in the legal standard to be employed in resolving claims of ineffective assistance of counsel under the United States Constitution and under the Georgia Constitution of 1983. See generally Manus v. State, 180 Ga. App. 658 (350 SE2d 41) (majority and special concurrence); Brinson v. State, 191 Ga. App. 151, 153 (5) (381 SE2d 292) (Georgia is in close alignment with the federal policy). Accordingly, the proper standard to be employed in determining enumerations concerning ineffective assistance of counsel, whether based upon a claim of right arising under federal or state law, is the two-pronged test announced in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674). See Brogdon v. State, 255 Ga. 64 (3) (335 SE2d 383). First, appellant must show that counsel’s performance was deficient; second, he is required to show that he was prejudiced by counsel’s deficient performance. Lowe v. State, 264 Ga. 757, 758 (3) (452 SE2d 90). “There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” Datz v. State, 210 Ga. App. 517, 518 (3) (436 SE2d 506). As to the second prong, the question is whether there exists a reasonable probability that, but for his counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt (Black v. State, 264 Ga. 550, 552 (1) (448 SE2d 357)), that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Hampton v. State, 215 Ga. App. 57 (449 SE2d 654). “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.” Williams v. State, 214 Ga. App. 106 (446 SE2d 789).

2. Appellant claims, inter alia, that trial counsel failed to prepare adequately for trial and only met with him on five occasions, not all of which concerned the merits of the case. “There exists no specified amount of time which a counsel must spend in preparation for trial; each situation must be judged upon its own circumstances and in light of its own degree of complexity. [Cit.] There was no total failure of trial preparation in [the case at bar] as in Cochran v. State, 262 Ga. 106 (414 SE2d 211).” Datz, supra at 518 (3) (a). Further, the trial court found, inter alia, that, while viewing the videotape of certain of the victim’s pretrial statements prior to trial may have been the better practice, it could not conclude that such a viewing would have made any difference in the case outcome. The record discloses that this and the other findings of the trial court were not clearly erroneous.

However, pretermitting whether any deficiencies exist under the first prong of Strickland, supra (see, e.g., Cofield v. State, 204 Ga. App. 776, 778 (1) (420 SE2d 597)), the question is whether there exists a reasonable probability that but for any unprofessional errors committed by trial counsel, the jury would have had a reasonable doubt as to defendant’s guilt within the meaning of Black, supra. Appellant has failed to establish that any of the testimony regarding the victim’s pretrial statements and drawings (see generally OCGA § 24-3-16; Cuzzort v. State, 254 Ga. 745 (334 SE2d 661)), the victim’s in-court testimony, any corroborating medical testimony, or any evidence of appellant’s prior simple battery conviction (which the trial court correctly concluded was admissible to impeach appellant’s testimony that he was faultless during a certain confrontation with his wife; see also OCGA § 24-9-82)) was not admissible under any legitimate theory of law. In this regard, “[i]t is a cardinal rule of evidence that if evidence is duly admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories.” Boatright v. State, 192 Ga. App. 112, 116 (6) (385 SE2d 298). After taking judicial notice of the trial record and transcript, pertaining to appellant, in White v. State, Case No. A93A2010 (Rogers v. State, 195 Ga. App. 446 (1) (394 SE2d 116)) and viewing the trial transcript in its entirety, we conclude appellant has failed to establish the existence of a reasonable probability that but for trial counsel’s alleged unprofessional errors there would have existed a reasonable doubt as to his guilt either to any or all of the offenses of which he was convicted. See generally Black, supra; Hampton, supra.

In addition to the victim’s testimony, corroborating evidence was offered as to consistent pretrial statements made to school personnel and others and medical evidence corroborating the victim’s claim that she had been subjected to sexual abuse. There was ample evidence of record from which the jury could find that on at least one occasion, as averred, appellant’s sex organ penetrated, however slightly, the female sex organ of the victim, and that the act of carnal knowledge was done forcibly. Further, as to the question of consent and force occurring as a matter of law when sexual acts are committed against children, for example, in cases involving incest and aggravated sodomy, compare Richardson v. State, 256 Ga. 746 (2) (353 SE2d 342) with Cooper v. State, 256 Ga. 631 (2) (352 SE2d 382) and Daniel v. State, 194 Ga. App. 495 (3) (391 SE2d 128). Appellant testified in his own behalf. While denying he had ever engaged in sexual intercourse with the victim, appellant admitted in judicio the fact that on one occasion, after the victim allegedly was complaining about stomach pain, he removed a tampax from her vaginal area to ease her pain.

We conclude that, based on the state of the evidence of record, appellant has failed to meet the second prong of the Strickland v. Washington test; his judgment of conviction will not be reversed on the grounds of inadequacy of counsel.

3. Appellant, however, testified at the post-trial inadequacy of counsel hearing that his attorney informed the prosecutor that if the State wished to “push for the maximum [sentence], then go on ahead, because I’m not going to stop you.” Appellant apparently attributes this alleged attitude on the part of his trial counsel to the fact he had filed a bar complaint against counsel regarding the quality of the defense legal representation being provided.

The trial record (Case No. A93A2010) reveals that following the verdict, appellant’s trial counsel moved to merge the child molestation count with the aggravated child molestation count and also to merge the incest charge into the rape charge. Trial counsel ably argued both motions and the trial court granted the motion to merge the child molestation count into the aggravated child molestation count, but denied the motion as to merger of the incest and rape counts. Trial counsel argued sentencing on behalf of appellant, requesting the trial court to consider that, although there was a record of several misdemeanors, appellant had no prior felony convictions, he had been incarcerated for almost eleven months, there was no evidence he had a related drug or alcohol problem, he was not a repeat sex crime offender, and he had two children of his own. When asked as to his sentencing views, trial counsel countered the State’s sentencing recommendations by asserting that giving appellant the maximum, or close to the maximum, regarding the sentences was “a little steep, in that [appellant] is not a repeat offender.” Trial counsel also pointed out that there was no evidence appellant was dangerous to other children or other members of the public, and no indication that appellant “needs to be locked up for a substantial [number] of years.” Trial counsel then affirmatively recommended that appellant be “given a substantial amount of probation with possibly a small amount of time.” Trial counsel further argued that there was no reason why appellant would not successfully complete probation, and urged the court to impose “a lesser sentence.”

Decided March 9, 1995.

Nicholas Pagano, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Rose L. Wing, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Sinkfield v. State, 262 Ga. 239 (416 SE2d 288) and Grant v. State, 195 Ga. App. 463, 464 (2) (393 SE2d 737) are distinguishable from this case and are not controlling as to the issue of sentence propriety based on unsupported allegations of inadequacy of counsel during the sentencing phase of trial.

Viewing the sentencing proceeding in its entirety, we are satisfied no fair risk exists that appellant’s counsel allowed the State to obtain near maximum sentencing of the accused without engaging in meaningful adversarial representation in behalf of his client. Accordingly, we decline to vacate the sentence and to remand this case for sentence rehearing.

Judgment affirmed.

Johnson and Smith, JJ., concur.