text:
    74267.
    HILL v. THE STATE.
    (359 SE2d 190)
   Beasley, Judge.

1. In appealing from his conviction for rape, OCGA § 16-6-1, appellant contends that the trial court erred by admitting evidence concerning an earlier incident because it was not sufficiently similar, it was not connected but instead too remote in time, and its prejudicial effect outweighed its probative value with respect to the issues in the case.

“ ‘ “[B]efore evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the (accused) was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. [Cit.] Once the identity of the accused as the perpetrator of the offense separate and distinct from the one for which he is on trial has been proven, testimony concerning the independent crime may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct. [Cits.]” [Cit.]’ [Cit.]” Burks v. State, 174 Ga. App. 304, 305 (2) (329 SE2d 590) (1985). See also Rich v. State, 254 Ga. 11, 13 (1) (325 SE2d 761) (1985). Included here are the concepts that the evidence must be relevant to an issue in the case and that its probative value outweighs its prejudicial effect. See Walraven v. State, 250 Ga. 401, 407 (4b) (297 SE2d 278) (1982); Hicks v. State, 232 Ga. 393, 397 (207 SE2d 30) (1974); Tuzman v. State, 145 Ga. App. 761, 762 (1A) (244 SE2d 882) (1978). Otherwise there is a violation of OCGA § 24-2-2 and/or OCGA § 24-9-20.

Appellant concedes that the first prong of the test was met, that there is no question that he was the person convicted of the prior sex offense. He maintains, however, that the second requirement was not met because there were insufficient similarities between the prior and present offenses and an insufficient logical connection between the two so that, on both bases, proof of the former did not tend to prove the latter, other than by showing bad character. The lack of a logical connection is premised primarily on the remoteness of the eleven-year-old offense.

The evidence in the case, construed so as to uphold the verdict, Rhodes v. State, 168 Ga. App. 10, 11 (1) (308 SE2d 33) (1983), showed the following: The victim first encountered Hill when she went to a store in downtown Atlanta to pay a bill. Hill was a security guard at the shop and was there in uniform when he approached the victim. He engaged her in conversation and offered to help her obtain employment with the company for which he worked. He offered to let someone cover for him so he could escort the woman to the company office. The victim went to a phone booth to call the company to check if indeed there were employment opportunities available and was told the company was hiring. The woman then traveled by train and bus with Hill to go to the security company. After getting off the bus they walked by many business places but Hill stopped by a duplex apartment. While the woman waited on the corner, after being told by Hill that he would call someone at the company to administer an employment test to her, Hill went into the duplex, left the door wide open and in full view of the woman picked up the phone as if making the call. He then motioned for the woman to come into the duplex to speak on the phone. When she went to pick up the phone, Hill “slung” it out of her hand, slammed the door, grabbed her around the neck and put a knife up to her chin. The woman tried to free herself, but Hill cursed at her and told her that if she screamed or said a word he would kill her. While still holding the knife at her chin, he dragged the victim into what looked like a child’s bedroom. The victim offered him her money and started to cry but Hill said he did not want her money, that he wanted her and that she “looked like a young and clean woman” that was “saved.” Hill then dragged the woman to the floor, got on top of her, pulled down her underclothes, and forcibly had sexual intercourse with her. He gave her a towel and a bandage to put on her chin, which was bleeding from a cut inflicted by his knife, and then escorted her to a bus stop.

The prior incident in question was Hill’s 1975 conviction on a guilty plea in Alabama for “carnal knowledge” of his then nine-year-old cousin. Both the cousin and her mother, Hill’s aunt, testified about the incident. The cousin said that when she was nine, Hill broke into her home, with which he was familiar, where she and her brothers and sister were sleeping (her mother was out) and pulled her down the stairs into the living room. Hill began beating and choking her and saying that if she screamed he would kill her; Hill had a knife. He pulled the girl’s panties off and then forcibly had sexual intercourse with her. The child “blanked out” from Hill’s beating and sustained a cut near the vagina.

The mother testified that when she got home, the daughter came to her, and the mother asked her what happened since the child appeared to be swollen, beaten, and bruised around the neck. The child told her “Jerry got me.” A few minutes later, Jerry Hill came out from the children’s bedroom still holding the knife. The mother took the knife from him and called the police.

“ ‘ “The exception to the general rule that evidence of independent crimes is inadmissible has been more liberally extended in the area of sexual offenses.” [Cits.]”’ Harriman v. State, 170 Ga. App. 715, 716 (2) (318 SE2d 182) (1984); see also Cooper v. State, 173 Ga. App. 254, 255 (1) (325 SE2d 877) (1985). In such cases, the similar act “is admissible to show lustful disposition and to corroborate the testimony of the victim as to the acts charged.” Jones v. State, 172 Ga. App. 347, 348 (2) (323 SE2d 174) (1984).

Here, in both instances, the sexual assault was within a dwelling with which Hill was familiar and where he was in control of the environment, and it was on a female whose confidence he was able to gain. The victim’s age or Hill’s perception of it was also a common factor. In the first case, the rape was on a girl and the second attack was on a woman whom Hill considered young. In both cases Hill held a knife on the victim, told her not to scream or he would kill her, pulled off her underclothes and then got on top of the victim and had forcible vaginal intercourse.

We hold that the prior crime was sufficiently similar so that it was not inadmissible as a matter of law. The eleven-year lapse of time between the prior offense and the one on trial would not itself render evidence of the prior offense inadmissible. It is one of the more important factors in considering admissibility. Once it crosses that threshold, it thereafter affects the weight and credibility of the testimony. Cooper v. State, supra at 255 (1). See also Rich v. State, supra at 14 (1); Campbell v. State, 234 Ga. 130, 132 (214 SE2d 656) (1975). Cf. Johnson v. State, 151 Ga. App. 887, 888 (6) and (7) (262 SE2d 201) (1979).

2. Appellant also maintains that the court erred in refusing to. charge the jury that adultery, OCGA § 16-6-19, was a lesser included offense of rape, OCGA § 16-6-1. He argues that inasmuch as he admitted having sexual intercourse with the prosecutrix, contending that the act was consensual, and that inasmuch as he was married at the time, adultery was a lesser included offense as a matter of fact.

Contrary to appellant’s contention, “[a]dultery is not included in the offense of rape. A crime is included when ‘it is established by proof of the same or less than all the facts . . .’ [Cit.]. In order to prove adultery, the additional fact of marriage must be shown. Since adultery is not an included offense, it was not error for the court to refuse to give the requested charge.” Lamar v. State, 243 Ga. 401, 403 (5) (254 SE2d 353) (1979).

Decided June 22, 1987.

J. Russell Mayer, for appellant.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Assistant District Attorney, for appellee.

Moreover, the court’s refusal to charge the jury on the crime of adultery could not have harmed the defendant, for if the jury had believed that the act was consensual, under the court’s charge it was required to acquit. This it did not do.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.

       See also this writer’s dissent in Hunter v. State, 177 Ga. App. 326, 327 (339 SE2d 381) (1985).


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    74775.
    LECOUNTE v. THE STATE.
    (359 SE2d 193)
   Banke, Presiding Judge.

Lecounte appeals his convictions of armed robbery and simple battery. Held:

1. The appellant complains that during the call of the calendar, the district attorney made a prejudicial reference to certain prior conduct on the part of defense counsel. However, the record reveals that defense counsel declined the opportunity either to examine the prospective jurors on this issue or to have corrective instructions given to the jury. “In order to warrant the grant of a mistrial, there is a burden of showing not only error but prejudice.” Kennedy v. State, 179 Ga. App. 587, 592 (4) (347 SE2d 604) (1986). The appellant’s motion for mistrial was properly denied.

2. The appellant further contends that the state’s case was based on the uncorroborated testimony of an alleged accomplice. However, it appears from an examination of the transcript that the testimony of the accomplice, Stewart, was corroborated in several respects. In particular, there was testimony that a ski mask was found in front of the trailer in which the appellant resided; and a police detective with a background in “tracking” identified a footprint found at the crime scene as being similar to the pattern on a tennis shoe found in the appellant’s trailer.

“In Georgia the testimony of an accomplice used to convict the accused of a crime must be supported by independent corroborating evidence as to the identity and participation of the accused tending to connect him to the crime or leading to the inference that he is guilty.” Eubanks v. State, 240 Ga. 544, 545 (242 SE2d 41) (1978). The necessary corroboration may be by circumstantial evidence. Blalock v. State, 250 Ga. 441, 443 (4) (298 SE2d 477) (1983). Slight corroboration of the evidence is sufficient. Bryant v. State, 179 Ga. App. 653 (347 SE2d 301) (1986). We find ample corroborating evidence in the present case to support the denial of the appellant’s motion for a directed verdict of acquittal.

Decided June 22, 1987.

John E. Pirkle, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    74802.
    WILLIS v. THE STATE.
    (359 SE2d 194)
   Banke, Presiding Judge.

Willis appeals his conviction of simple battery, enumerating as error the state’s failure to comply with his written, pre-trial demand for a copy of the accusation and a list of witnesses.

It is undisputed that the appellant made a timely demand under Art. I, Sec. I, Par. XIV of the Constitution of the State of Georgia and OCGA § 17-7-110 for a copy of the accusation and list of witnesses, and it is further conceded by the state’s attorney that, due to an oversight on his part, the appellant’s demand was not complied with prior to trial. This court has been provided with only an excerpted portion of the trial transcript, from which it appears that, after the jury was sworn and the appellant’s counsel interposed an objection to the state’s failure to comply with his written discovery demand, the following colloquoy took place: “THE COURT: Well, what I want to get on the record, number one, there are no witnesses other than the [victim]; is that correct? PROSECUTOR: That’s correct, That is correct. THE COURT: Is there any other discoverable material in the file? PROSECUTOR: I have a statement from the victim, and that is it. THE COURT: No statements by the defendant? PROSECUTOR: No, sir, the state anticipates no statements by the defendant. APPELLANT’S COUNSEL: Could we at least get a copy of the accusation? PROSECUTOR: Certainly, I’ll be glad to give him a copy of — I’ll give you a copy of the victim’s statement. THE COURT: All right, what we’ll do, we’ll do the opening statements; then that will give you an opportunity during lunch to review the accusation. APPELLANT’S COUNSEL: Okay, that’s fine. I’m ready to proceed with opening statements. THE COURT: Well, do you want to go any further than the opening statements, or do you want time to review that? APPELLANT’S COUNSEL: No, that won’t — THE COURT: Okay, we’ll go — APPELLANT’S COUNSEL: I just mainly didn’t have any material from the file regarding dates, times, places, anything like that. THE COURT: All right.”

Decided June 22, 1987.

Robert E. Turner, for appellant.

Carl A. Veline, Jr., Solicitor, for appellee.

No other portions of the trial transcript have been provided. Held:

The excerpted portion of the transcript demonstrates that although the appellant’s counsel “objected for the record” to the state’s failure to comply with his request for a copy of the accusation and a list of witnesses, he did not ask for any corrective action, such as the grant of a continuance or the exclusion of any testimony, but instead acquiesced in going forward with the trial. Moreover, the appellant has not shown how he was harmed by the alleged error. “Even constitutional error is considered harmless if there is no ‘reasonable possibility’ it might have contributed to the conviction . . . [Cit.]” Albert v. State, 180 Ga. App. 779, 785 (350 SE2d 490) (1986). Under the circumstances, no ground for reversal of the conviction has been established.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    74829.
    DORSEY v. THE STATE.
    (359 SE2d 195)
   Banke, Presiding Judge.

Dorsey appeals his conviction of aggravated assault. Held:

1. It is contended that a “mugshot” of Dorsey, admitted over his objection, was unduly prejudicial in that it improperly placed his character in issue. The photograph was introduced for identification of Dorsey and does not suggest that Dorsey had been the subject of prior arrests or convictions for other offenses. It is well settled that the mere admission into evidence of a “ ‘picture of defendant with an identifying number does not indicate that the defendant was guilty of any previous crime and does not place his character in issue.’ [Cits.]” Anderson v. State, 152 Ga. App. 268, 269 (2) (262 SE2d 560) (1979). See also Duckworth v. State, 246 Ga. 631, 635 (6) (272 SE2d 332) (1980). This enumeration is consequently without merit.

2. Dorsey contends that the evidence was insufficient to support the verdict. The evidence established that Dorsey committed an act with a deadly weapon which placed the victim in reasonable apprehension of immediately receiving a violent injury. Applying the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we hold that the evidence was sufficient to enable a rational trier of fact to find him guilty beyond a reasonable doubt of aggravated assault.

Decided June 22, 1987.

Sara F. Miller, for appellant.

Harry N. Gordon, District Attorney, Richard J. Weaver, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Pope, Judge.

text:
    74068.
    HARWELL v. CONTINENTAL INSURANCE COMPANY.
    (359 SE2d 172)
   Pope, Judge.

Plaintiff Willie V. Harwell, his wife and three others were seriously injured and one party was killed in an automobile accident which occurred on June 1, 1984 in Conecuh County, Alabama. The tortfeasor, Ms. Inez Reeser, was insured under a policy issued by State Farm Mutual Automobile Insurance Company, which provided personal injury liability insurance coverage in the amount of $50,000 per person, $100,000 aggregate per accident. At the time of the accident Harwell was driving a vehicle owned by his employer which was covered by a policy of insurance issued by Liberty Mutual Insurance Company. This policy provided uninsured motorist coverage in the amount of $25,000. There was also in effect at this time a policy issued by Continental Insurance Company, defendant herein, to Har-well, which also provided $25,000 in uninsured motorist coverage.

State Farm filed an interpleader action in the Circuit Court of Conecuh County, Alabama naming Harwell, the other injured parties and the estate of the deceased as defendants. By motion of State Farm, the tortfeasor was subsequently made a party plaintiff to that action. Harwell answered and counterclaimed against both State Farm and the tortfeasor. The Alabama trial court rendered judgment for the defendants/counter claimants and awarded each claimant a proportional sum of the $100,000 paid into the court by State Farm. Harwell was awarded $350,000 for his personal injuries; his proportional share of the total recovery was $12,620.55.

Harwell (hereinafter “plaintiff”) subsequently filed the present action against Continental as his uninsured motorist carrier in the Superior Court of Hall County, Georgia based on his contention that the tortfeasor was “underinsured” (and thus uninsured) in the amount of $337,379.45, said amount being the difference between the amount awarded plaintiff for his personal injuries and his proportional share of the recovery. Continental answered, and plaintiff filed a motion seeking partial summary judgment; Continental also moved for summary judgment. The trial court granted Continental’s motion and held that the tortfeasor was not uninsured within the meaning of OCGA § 33-7-11. Plaintiff filed this timely appeal in which the only issue presented for review is whether the trial court erred in finding the tortfeasor was not uninsured within the meaning of the relevant code section.

As applicable to the case sub judice (prior to the January 1, 1987 amendment discussed hereinbelow), an uninsured (or “underin-sured”) motor vehicle is “a motor vehicle [of the tortfeasor] . . . as to which there is: . . . (ii) Bodily injury liability insurance and property damage liability insurance with limits of coverage which are less than the limits of the uninsured motorist coverage provided under the insured’s insurance policy, but the motor vehicle shall only be considered to be uninsured for the amount of the difference between the limits of the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle and the limits of the uninsured motorist coverage provided under the insured’s motor vehicle insurance policy. . . .” OCGA § 33-7-11 (b) (1) (D) (ii).

Relying totally on authority from other jurisdictions, plaintiff contends that the term “limits of coverage” under OCGA § 33-7-11 (b) (1) (D) (ii) should be construed so as to mean the amounts available under the tortfeasor’s policy. Thus, in the case sub judice, because plaintiff only recovered $12,620.55 of his $350,000 claim, the tortfeasor should be deemed uninsured for the remaining amounts, and the plaintiff should be entitled to recover the difference between the $12,620.55 coverage received and the $50,000 available under his and his employer’s uninsured motorist policies. On the other hand, Continental contends that plaintiff is not entitled to uninsured motorist coverage because the limits of the tortfeasor’s policy and the “stacked” uninsured policies are identical ($50,000).

We note first that effective in January 1987 the legislature amended OCGA § 33-7-11 (b) (1) (D) (ii) so that the availability of uninsured motorist coverage is now determined by looking to the “available coverages” under the tortfeasor’s policy, exactly as plaintiff urges. Ga. L. 1986, p. 394, § 1. The legislature specifically provided, however, that “[t]his Act shall become effective January 1, 1987, and shall apply to motor vehicle liability insurance policies issued, delivered, or renewed in Georgia on or after January 1, 1987,” (Ga. L. 1986, pp. 394, 395, § 2) and, therefore, is inapplicable to the resolution of the issue presented in the case at bar. Moreover, it is clear to us that under the plain and unambiguous terms of the statute applicable herein “[recovery [of ‘underinsured’ motorist coverage] is limited to the amount of the difference between the limits of the coverage on the tortfeasor’s automobile and that of ‘the insured’s motor vehicle policy.’ ” (Emphasis supplied.) State Farm &c. Ins. Co. v. Hancock, 164 Ga. App. 32, 33 (295 SE2d 359) (1982). Accord Lewis v. Atlanta Cas. Co., 179 Ga. App. 185 (1) (345 SE2d 858) (1986). Thus, prior to the 1987 amendment the amount actually recovered under the tortfeasor’s policy is irrelevant in determining the availability of uninsured motorist coverage.

Decided June 15, 1987

Rehearing denied June 23, 1987.

Jack M. Carey, Christopher J. Walker III, for appellant.

W. Wray Eckl, Stephen R. Kane, for appellee.

Plaintiff also argues that the policy issued by Continental is uncertain and ambiguous as to what constitutes “underinsured” motorist coverage and therefore should be construed to provide a definition of “underinsured” motorist coverage that is more liberal than statutorily prescribed. However, as our review of the record indicates this issue was raised for the first time on appeal, we are precluded from considering this argument. See, e.g., Spencer v. McCarley Moving &c. Co., 174 Ga. App. 525 (1) (330 SE2d 753) (1985).

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.

       Because we agree with Continental that the trial court properly denied uninsured motorist coverage in the case sub judice, it is unnecessary for us to consider Continental’s argument that plaintiff is barred from “stacking” the uninsured motorist policies because his wife previously received all amounts available under the employer’s policy.


author: Birdsong, Chief Judge.

text:
    74290.
    THOMAS v. BARTLETT.
    (359 SE2d 156)
   Birdsong, Chief Judge.

Appellant Blake Thomas d/b/a Positive T-Shirt, is in court by virtue of a dispossessory action filed by his landlord, appellee Frank Bartlett, in January 1984. The jury found Thomas to be a tenant holding over, specified rent due and gave the landlord possession. Thomas appeals, principally upon the trial court’s refusal to add, as party defendant, Atlanta Economic Development Corp. (AEDC), and its refusal to allow Thomas to make counterclaims and defend as a third-party beneficiary of an alleged loan commitment contract and letters pertaining thereto, between appellee landlord and AEDC. The appellee makes a motion for penalty for frivolous appeal. Held:

Decided June 5, 1987

Rehearing dismissed June 23, 1987.

Jack LaSonde, for appellant.

The appellant makes no statement of facts and issues pursuant to Rule 15 (a) of this court, but only gives a recital of the proceedings. Appellant does not plead what the alleged contract between appellee and AEDC contains, what was its object, or how it was claimed to benefit appellant, and appellant does not direct us to where such a contract might be found in the record. Nor does appellant elucidate his exceedingly vague contentions as to rent schedules, rent escalations, and repairs allegedly agreed upon by Bartlett and AEDC, Or how such factors affected his liability. In short, appellant does not even minimally suggest to this court how, or why, the jury verdict dispossessing him and finding him liable for rent, was error. Appellant proposes only generalized contentions that he was a third-party beneficiary of a contract. This generalization does not amount to a showing of error, as against the presumed regularity of the proceedings and the verdict below. Thomas’ appeal invokes nothing more from this court than the observation that the burden is on him to show error, and if no error is shown, nothing is presented to this court for review. See Sun v. Bush, 179 Ga. App. 80, 81-82 (345 SE2d 85).

An appeal must not merely suggest error; to be successful it must prove error. An appeal which does not even contain a statement of facts sufficient to determine the nature of the case, let alone the nature of an alleged error, is without merit on its face. An appeal which does not even point to an error in the record, but makes only vague suggestions which would require this court to search through the record to find if there is such an error, does not in fact amount to an appeal; it is at best an invitation to the court to perfect the appeal by seeking out an error. In the face of the presumption of regularity in the proceedings below (Acker v. Jenkins, 178 Ga. App. 393, 394 (343 SE2d 160)), such an “appeal” is patently without merit.

The inadequacy of the appeal filed by the appellant forces us to the conclusion that this appeal is frivolous and was taken for delay only, inasmuch as he states no facts and issues suggestive of error and shows no basis at all upon which to anticipate reversal. Holcomb v. Commercial Credit Sues. Corp., 180 Ga. App. 451, 452 (349 SE2d 523); Burger v. Burton, 168 Ga. App. 378 (308 SE2d 868). Accordingly, appellee’s motion for damages for frivolous appeal is hereby granted, pursuant to OCGA § 5-6-6.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

John C. Dabney, Jr., for appellee.


text:
    74347.
    FUQUA v. THE STATE.
    (359 SE2d 165)
   Birdsong, Chief Judge.

The appellant, Edwin Fuqua, a former police officer, appeals his conviction for obstruction of an officer and possession with intent to distribute and distribution of cocaine. Joe Canning, a witness for the defense, testified that he had known Fuqua since both of them had been in the fifth grade. Fuqua introduced him to cocaine and he purchased cocaine for his use from Fuqua. In 1984 Canning contacted the Clarke County police and advised them of his drug addiction and that he purchased the cocaine from Fuqua. The county officials thought such an investigation could better be handled by the Georgia Bureau of Investigation and took Canning to them. During the following year, Canning made approximately five attempts, under the auspices of the GBI and the FBI to induce Fuqua to sell him cocaine, without success. In 1985 Canning was arrested for possession of cocaine and was placed in jail. While in jail, he was interviewed by the officer he had contacted one year before regarding his purchase of cocaine from Fu-qua. Canning said, the police knew that “Edwin [Fuqua] was a cocaine addict. ... I just confirmed it.” The officer enlisted his assistance in making a purchase of cocaine from Fuqua. Because Canning had worked with the GBI and the FBI during the past year, they were brought into the plan. Two adjoining rooms were rented in a local motel. The officers procured Canning’s release from jail through a judge and let him place a phone call to Fuqua. Canning invited Fuqua to the motel. When Fuqua arrived, he was smoking a “marijuana . . . joint.” Canning told Fuqua he “wanted to party,” but Fuqua was thinking of beer, so Canning “made a gesture . . . (sniff, sniff) . . . [and] Edwin’s reaction ... he was certainly ready to go at that point. . . .” Fuqua started making phone calls and found a supplier for “two halves” — half ounces. Canning gave Fuqua the money to purchase the cocaine. Fuqua left and was followed by an officer in an unmarked police car and was under surveillance by a plane in the air. Both surveillance missions failed. Fuqua finally returned to Canning’s room at the motel, and the officers heard what they thought to be Canning and Fuqua “sniffing” the cocaine. Canning testified that both he and Fuqua sniffed a “line” of cocaine.

Lt. Lucas, one of the monitoring police officers, determined that they had sufficient evidence and left the motel room to gather together the other officers for the arrest. While the officers were assembling in front of Canning’s motel room, Fuqua walked out of the room into their midst. All parties were surprised. Lt. Lucas drew his weapon and heard another officer say: “Police, Ed. Halt.” Lucas said Fuqua was “kind of bewildered, looking around ... he started doing some sort of gyrations . . . throwing] his arms around . . . saying what is going on here.” Fuqua started to walk away and Lucas attempted to apprehend him. When Fuqua attempted to pull away from Lucas’ grasp, Lucas’ weapon discharged. The firing of the weapon was accidental and the bullet struck no one, but Fuqua sustained a powder burn on his neck.

Lucas had seen Fuqua place a packet of cocaine up his sweater sleeve while he was in Canning’s room and he was observing Fuqua closely while they were in the parking lot. “I had assumed that he was going to try to just dump it. . . . When Detective Duncan and All-britten were about to apprehend him ... I saw his right hand go like this and I saw the small package hit the ground.” Fuqua placed his foot over the small glassine packet, but after he was apprehended Lucas picked it up and turned it over to the FBI. Another officer also found another packet where the scuffle occurred. Both packets were determined to contain cocaine.

At trial, the defendant asserted the defense of entrapment. The jury returned a verdict of guilty on both counts and this appeal followed. Held:

1. Appellant contends the State is guilty of “prosecutorial misconduct” during the trial: in violation of appellant’s “right to due process.” It is argued that the prosecutor made “several specific errors of law . . . which standing alone constitute reversible error. When considered together, however, these errors constitute an intentional pattern of prosecutorial misconduct. . . .” The so-called “pattern of prosecutorial misconduct” is broken down into three types of error: (a) appellant was not provided with a supplemental statement made by a police officer in compliance with his Brady motion, (b) although the prosecutor professed to have an “open file” policy and turned over his entire file to the defense, some of the witnesses’ testimony was not contained in their statements in the file, and (c) the prosecutor improperly placed appellant’s character in evidence by introducing “testimony that the appellant had been co-indicted on the wiretap charge with Carole Gillen.”

(a) The appellant presented a Brady motion to the court prior to trial and the assistant district attorney turned over his entire file to the defense. Five days prior to trial, the prosecutor discovered appellant had made a statement to Officer Hammond while being transported to jail and jotted down a summary of the officer’s testimony. That summary was provided to defense counsel on the day of trial. The first day of trial was May 28, 1985. Officer Hammond was called to testify on June 3, 1985. The State did not attempt to introduce the statement nor did it call as a witness the officer who heard the statement. Appellant’s counsel moved for a mistrial on the ground that the officer’s testimony was “exculpatory” and had not been provided to him until the day of the trial. In the alternative, appellant’s counsel asked the court “to compel that person to come into court. I don’t have time to subpoena him now.” The prosecutor advised the court, “in all fairness I am not at all sure how accurate what I wrote down that morning in a hurry is exactly what Sgt. Hammond testified to.” The court adopted appellant’s counsel’s alternative solution and required production of the witness in court. Appellant’s counsel had expected Officer Hammond to testify in the manner in which the prosecutor had summarized his statement, i.e., Fuqua told him “he knew he was being set up but didn’t have enough sense to get out, and that he had been pretty messed up on cocaine before, but wasn’t doing much now.” Instead, Officer Hammond testified that Fuqua said: “tell [Lt.] Gene Lucas to get rid of the cocaine that they found. It wasn’t his. And I told him that I didn’t think Gene would do that, but I would give him the message anyway. He said it is not mine. I told him, I said: ‘Come on, Ed. You are talking to Rick now, somebody that has known you all these years, not some Federal agent. I know you have had a problem.’ He said: ‘Well, yeah. Off the record I have had a problem with cocaine in the past; but I think I have got it squared away. . . .’ He said he was set up . . . and I don’t remember the exact conversation.”

Appellant’s counsel argues this “situation was created, perhaps even orchestrated” by the prosecutor providing him with his file with “inaccurate Brady material. . . .” This allegation of error will be discussed in conjunction with appellant’s claim of another Brady error.

(b) Appellant’s counsel also called the informer as a witness and Canning testified that he had contacted the Clarke County police after he became addicted to cocaine and had spent $20,000 to $25,000 for cocaine over the past two years. The majority of his direct testimony dealt with his cooperation with the GBI and FBI in attempting to make a purchase of cocaine from the appellant during the past year. His conversations with appellant had been taped and he had been wired with a radio transmitter during some of his talks with Fu-qua. Those tape recordings were identified and played for the jury. On cross-examination, Canning testified that Fuqua “first introduced [him] to cocaine.” Appellant also taught him to use a syringe, and because of Fuqua providing him with cocaine, he became addicted. He was asked if Fuqua had provided him with 95 percent of the cocaine he had purchased over the past two years, and responded: “Yes.” He had observed Fuqua use marijuana and cocaine in his home, and as late as three weeks before this latest arrest he was discussing with Fuqua the purity of the cocaine they were using. Prior to the purchase of cocaine at the motel, Fuqua was calling people to purchase cocaine, and he knew all the telephone numbers. He did not have to consult anything for a number. He had seen Fuqua sell cocaine “to other people” and “to at least one underage person. . . .” Canning also repeated several times, that “this occasion [at the motel] was no different from what had happened before” by him providing the money and Fuqua obtaining the cocaine. Appellant’s counsel argues that the “inflammatory and prejudicial nature of these comments is obvious,” but he had not been supplied with this information “despite the State’s previous representations of complete, open file discovery.”

Appellant also complains about the supplemental statement filed by the police officer that he had seen the appellant “lunge” at the confiscated cocaine with his mouth. In argument to the court, counsel admitted that the assistant district attorney had told him that this was the first time he had seen the supplemental statement and there was no question he “did not conceal that report. . . .” However, he argues, “an agent of the State did conceal that report from me by failing to provide it to [the district attorney] to be provided to me.”

“There is no constitutional right to discovery in a criminal case, and Brady [v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215)] did not create one. ...” Weatherford v. Bursey, 429 U. S. 545, 559 (97 SC 837, 51 LE2d 30). “ ‘Brady applies to “the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.” ’ ” Cunningham v. State, 248 Ga. 558, 561 (284 SE2d 390). Furthermore, a defendant’s own statements to police are not unknown to defendant and are not subject to discovery under Brady. Id.; accord McCarty v. State, 249 Ga. 618, 620 (292 SE2d 700). Brady does not require pre-trial disclosure of exculpatory material, and is not violated when such material is made available to defendants during the trial. Castell v. State, 250 Ga. 776, 781 (301 SE2d 234). Brady does cover “suppression by the prosecution of evidence favorable to any accused upon request. . . where the evidence is material either to guilt or to punishment. ...” 373 U. S. at 87. In the instant case there was no evidence of suppression or of misrepresentation. Reed v. State, 249 Ga. 52, 56 (287 SE2d 205); see also Weatherford, supra at 560. It is elementary that counsel for the State can make available only such evidence as it has in its file, or of which it has knowledge, and “is under no requirement to conduct an investigation on behalf of a defendant. . . .” Dalton v. State, 251 Ga. 641 (1) (308 SE2d 835). Nor is an accused, as a matter of right, entitled to receive copies of police reports and investigations made in the course of preparation of a case against a suspect. Nations v. State, 234 Ga. 709 (1) (217 SE2d 287). Further, our Supreme Court and the U. S. Supreme Court are in agreement that “there is ‘no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.’ ” Harper v. State, 249 Ga. 519, 528 (292 SE2d 389); accord Moore v. Illinois, 408 U. S. 786, 795 (92 SC 2562, 33 LE2d 706). It is clear beyond cavil that no counsel can guarantee opposing counsel that statements of witnesses, furnished in good faith, will include every iota of information each witness possesses, and that the witnesses will not decline to reaffirm what is included in the statement, nor that such witnesses will never add information to that recorded. What is evident from the record is that counsel who records a witness’ statement is not the only counsel that is subject to surprise. Appellant’s counsel was forewarned that the summation of testimony might not be accurate but chose to call that witness as his own. This was a conscious election.

Hence, counsel was forewarned as to the accuracy of a summation of one witness’ testimony, and was not warranted in concluding that another witness’ statement included all of the information possessed by that witness, nor was he authorized, as a matter of law, to conclude that an informant might not possess information adverse to his client which was not included in a statement made to the police which was included in the prosecution’s file made available to him. Counsel is a victim of his own trial tactics, not the tactics of the prosecution. The risk he assumed cannot be attributed to the State on a silent record. There is no evidence of suppression or misrepresentation.

(c) Appellant contends his character was improperly placed in issue by the prosecutor when he elicited “the fact that the appellant was also arrested on federal wiretap charges.” The pages referenced in the record by appellant to support this allegation show only that a member of the Clarke County Police Department stated: “I was out there [at the motel] to assist in the execution of the arrest warrant.” Appellant’s counsel promptly moved for a mistrial on the ground “[tjhe officer just stated that the FBI had an arrest warrant for Mr. Fuqua which puts his character in evidence. . . . There is an FBI warrant pending he said.” Counsel embellished what the witness stated at the trial. But, at a later point, the witness was asked about the “scuffle” between Fuqua and Lt. Lucas at the motel, and responded: “Mr. Fuqua had a beer bottle in his right hand and made an erratic motion and asked: ‘What are you arresting me for?’ He [Lt. Lucas] was telling him that he was under arrest, and that we had a Federal warrant for his arrest.” A second motion for mistrial was denied at this point. Counsel contends that because the State placed in evidence the existence of a federal warrant, he had to cross-examine a State witness to show the jury “the dismissal of the federal indictment.” Prior to that point in the trial, appellant’s counsel asked the witness the nature of the information the police possessed about Fu-qua’s involvement in drugs, prior to Canning contacting them. The witness could not recall any prior information but because Fuqua was a former police officer they turned Canning over to the GBI. Appellant’s counsel asked the witness if he knew that Fuqua “might have some . . . knowledge about electronic surveillance. . . . Working for lawyers around town on divorce cases and that kind of stuff?” The witness said they did and because of Fuqua’s background they contacted the FBI. Canning had told them “something about wire tapping which was above our heads. . . . Q. . . . with respect to the drugs what do you recall Mr. Canning saying? A. He related the same thing and talked about some other individuals, Carole Gillen. . . . Q. He thought they might be involved with Ed in drug traffic? A. Yes. Q. Do you recall anything else about that conversation. ... A. He said he had contact with Ed and he had bought drugs from Carole Gil-len. . . . Q. Not that Fuqua had bought drugs from Carole Gillen. A. I don’t remember him saying that. He said that he had worked with her. Q. That he had worked with Carole Gillen, that Joe Canning had? A. He related out there at the GBI office that Carole Gillen and Ed Fuqua and he had done some wiretapping.” Appellant’s counsel then brought out the fact that the wiretapping was why the FBI became involved, and that Fuqua and Carole Gillen had been indicted on wiretapping charges and Gillen had entered a plea of guilty, but the indictment was then dismissed because of an imperfection in the manner in which it was charged.

In appellant’s brief, he contends that although he brought out the fact of Carole Gillen’s involvement with Fuqua and the wiretapping indictment, he was required to enter this area because of the State witness’ reference to a “warrant.”

We find no reversible error in the manner in which the trial court resolved this issue. The State’s witness did refer to a “warrant” as the reason for participating in the motel stake-out. However, the witness only referred to a “federal warrant” when a police officer was responding to Fuqua’s query at his arrest. The references to the “warrant” and the “Federal warrant” were part of the res gestae and the circumstances surrounding the accused’s arrest. Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. Andrews v. State, 249 Ga. 223 (290 SE2d 71). Hence, acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae and it does not matter that the act is another criminal offense and does not tend to establish the main offense. Parker v. State, 162 Ga. App. 271, 272 (290 SE2d 518). In addition, all circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them. Bixby v. State, 234 Ga. 812, 813 (218 SE2d 609); State v. Luke, 232 Ga. 815, 816 (209 SE2d 165).

Decided June 9, 1987

Rehearing denied June 23, 1987

J. Hue Henry, Martha M. Pearson, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

2. Turning to appellant’s contention that when these alleged errors are “considered together . . . [they] constitute an intentional pattern of prosecutorial misconduct. . . ,” we must first observe that this court and the Supreme Court have held that “ ‘[a]ny error shown upon the record must stand or fall on its own merits and is not aided by the accumulative effect of other claims of error.’ ” Haas v. State, 146 Ga. App. 729 (8) (247 SE2d 507), U. S. cert. den. 440 U. S. 922; accord Hess Oil &c. Corp. v. Nash, 226 Ga. 706, 709 (177 SE2d 70); Gilstrap v. State, 162 Ga. App. 841, 848 (292 SE2d 495). However in Shaw v. State, 241 Ga. 308, 312 (245 SE2d 262), the court held “if the cumulative effect of improper prosecution tactics was to deny appellant a fair trial, the conviction cannot stand.” We have found no evidence of improper prosecution tactics and appellant’s conclusive characterization of them as “prosecutorial misconduct” is without foundation in fact or law. See generally Fugitt v. State, 251 Ga. 451 (2) (307 SE2d 471); Mincey v. State, 251 Ga. 255 (16) (304 SE2d 882); Studyvent v. State, 153 Ga. App. 161 (264 SE2d 695).

3. Appellant’s last enumeration of error claims the trial court “improperly shifted the burden of proof to the appellant in its charge. . . .” In his brief, appellant states that he. raised the issue of entrapment and the State was obligated to prove beyond a reasonable doubt that the defendant was not entrapped, but that twice during its charge the court “stated that the only issue for the jury to determine was whether the appellant knowingly committed the unlawful act charged,” and in defining “admission” charged it was a statement by a defendant “which tend ... to prove the guilt of the accused ... or to disprove some defense set up by an accused.”

The trial court charged fully and accurately on the defense of entrapment, including the nature of the defense, and that “the State has the burden of proving beyond a reasonable doubt that the Defendant was not entrapped into effecting an unlawful sale of cocaine.” Appellant’s counsel has cited portions of the charge relating to other matters. This enumeration is totally without merit.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Sognier, Judge.

text:
    74094.
    LOWRANCE v. THE STATE.
    (359 SE2d 196)
   Sognier, Judge.

Lowrance appeals from his conviction of misdemeanor theft by receiving, for which he was sentenced to the maximum period of confinement authorized.

1. Appellant contends he was denied the effective assistance of counsel because of the trial court’s failure to appoint counsel for appellant based on his indigency. It was stipulated by the parties that prior to and at arraignment appellant applied to the court for appointment of counsel on the ground that appellant was indigent. Appellant’s request was denied by the trial court on the sole ground that in the judicial circuit where he was tried, criminal defendants, as a matter of policy, are not entitled to the services of a court-appointed attorney if charged only with a misdemeanor offense. It was also stipulated that one week after trial the court made a determination that appellant was, in fact, indigent.

The policy stated by the trial court violates the provisions of OCGA § 17-12-4 (a) and Rule 1.1 of the Guidelines for Local Indigent Defense Programs (246 Ga. 837) as approved by the Supreme Court of Georgia. The Code section and Rule 1.1 both require that counsel be appointed for indigent defendants, whether charged with a felony or misdemeanor, where such persons could be imprisoned under the state law of Georgia if found guilty.

Further, the bill of rights of the Constitution of the State of Georgia, 1983, provides that “[e]very person charged with an offense against the laws of this state shall have the privilege and benefit of counsel ...” Art. I, Sec. I, Par. XIV.

At a hearing on appellant’s claim of ineffective assistance of counsel it was established that fifteen or twenty minutes before appellant’s trial, he was able to retain an attorney who was present after appellant’s father agreed to “come up” with the money for the attorney’s fee. Appellant’s case was the first case called for trial and the attorney had no opportunity to file any motions or interview witnesses. In fact, it appears that the attorney had no opportunity to talk to appellant about his case because the attorney was trying to find out something about the case from another attorney. Appellant’s trial counsel testified that he would have filed a motion to suppress evidence had he had an opportunity to do so. Although trial counsel did not make a motion for continuance or request a delay he had been present when the trial court informed appellant he was going to trial with or without an attorney. Thus, it would have been a futile gesture to ask for a continuance or delay, as it had been made clear what the court’s answer would have been to such a request. Under such circumstances we find it was unnecessary to make such a request merely to preserve the record for appeal. See, e.g., Sawyer v. State, 161 Ga. App. 479, 482 (1) (288 SE2d 108) (1982). Further, we do not believe appellant should be penalized because his attorney failed to make a pro forma motion for the record.

Decided June 23, 1987.

David J. Dunn, for appellant.

David L. Lomenick, Jr., District Attorney, Susan R. Sarratt, Assistant District Attorney, for appellee.

The benefit of counsel guaranteed by the Georgia Constitution is not satisfied merely because the defendant is represented by counsel on his trial, but his counsel is entitled to a reasonable time after his employment to prepare a defense in order that he may adequately and effectively represent his client. Smith v. Greek, 226 Ga. 312, 317 (175 SE2d 1) (1970). Determination of whether adequate time for preparation was allowed must rest upon the unique factual situation in each case, and the recurring theme of opinions concerning this problem has been that undue haste in the administration of the criminal law is as much to be condemned as unnecessary delay. Tucker v. State, 136 Ga. App. 456, 457 (1) (221 SE2d 664) (1975); Williams v. State, 144 Ga. App. 410, 411 (1) (241 SE2d 261) (1977).

Applying these rules and concepts of justice to the instant case we find that appellant was denied the benefit of counsel. We do not believe the most capable counsel could properly prepare for a contested jury trial in fifteen or twenty minutes, and to force appellant to trial under such circumstances denied him the effective assistance of counsel as guaranteed by the Georgia Constitution. Accordingly, we reverse.

2. Because of our decision in Division 1, we need not address appellant’s remaining enumerations of error.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur in the judgment only.


text:
    74339.
    74340, 74341.
    WASHINGTON v. THE STATE. KELLY v. THE STATE (two cases).
    (359 SE2d 198)
   Sognier, Judge.

Vittirio Washington pled guilty to one violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) and three violations of the Georgia Controlled Substances Act by possessing, with intent to distribute, marijuana, cocaine and hydrocordone. Charleston Kelly and Rebecca Kelly pled guilty to one count of conspiracy to violate the Georgia Controlled Substances Act (GCSA) by possessing cocaine and marijuana, respectively.

1. Washington contends that the trial court erred by imposing a fine of $100,000 as part of his punishment. The State concedes that the fine imposed was excessive, but argues that a fine of $80,000 was authorized. Appellant Washington acknowledges that a fine was authorized, but argues that the maximum fine imposable was $55,000. The difference of $25,000 between the State’s position and Washington’s claim arises from Count 1. The State argues that Count 1 alleged two violations of RICO, and thus, a $25,000 fine was authorized for each violation. Washington argues that Count 1 was one violation of RICO, authorizing a maximum fine of $25,000.

OCGA § 16-14-5 provides, in pertinent part: “(a) Any person convicted of the offense of engaging in activity in violation of Code Section 16-14-4 [prohibited acts] is guilty of a felony and shall be punished by not less than five nor more than 20 years’ imprisonment or the fine specified in subsection (b) of this Code section, or both.

“(b) In lieu of any fine otherwise authorized by law, any person convicted of the offense of engaging in conduct in violation of Code Section 16-14-4 may be sentenced to pay a fine that does not exceed the greater of $25,000.00 or three times the amount of any pecuniary value gained by him from such violation.”

The State charged appellant Washington with violating RICO in two different ways in Count 1, viz., conspiring to violate the provisions of OCGA § 16-14-4 (b), and actually violating the provisions of OCGA § 16-14-4 (b). Both offenses set out in Count 1 are violations of OCGA § 16-14-4, and it has long been the rule that where one offense can be committed in several ways, it is permissible to incorporate the different ways in one count. Leutner v. State, 235 Ga. 77, 79 (2) (218 SE2d 820) (1975); State v. Malone, 139 Ga. App. 197, 198 (2) (228 SE2d 168) (1976). See also Sullivan v. State, 178 Ga. App. 769, 771 (344 SE2d 737) (1986). Both the conspiracy and the actual violation of OCGA § 16-14-4 (b), supra, alleged in Count 1 charge the same acts committed at the same time, by the same persons, as part of the same transactions. Thus, the count subjected Washington to one conviction and one punishment. Sullivan, supra. We enunciated this same rule many years ago in Hall v. State, 8 Ga. App. 747 (1) (70 SE 211) (1911), and the rule has not changed since that time. Since no hearing was held to determine any pecuniary gain by appellant Washington from his racketeering, the maximum fine imposable for Count 1 was $25,000. Both the State and appellant agree that a $10,000 fine was authorized for each of the other three offenses to which appellant pled guilty, so a total fine of $55,000 was authorized. Hence, any fine in excess of that amount was not authorized and must be set aside.

Decided June 23, 1987.

Benjamin Allen, for appellant (case no. 74339).

Michael C. Garrett, for appellant (case no. 74340).

John Fleming, for appellant (case no. 74341).

Sam B. Sibley, Jr., District Attorney, George N. Guest, Assistant District Attorney, for appellee.

2. Both Charleston and Rebecca Kelly pled guilty to conspiracy to violate the Georgia Controlled Substances Act in violation of OCGA § 16-13-33. Both Kellys received probated sentences to confinement, and were fined as a condition of probation. Charleston Kelly was fined $100,000 and Rebecca Kelly was fined $7,500. Both appellants claim on appeal that no fine was authorized upon conviction of a violation of OCGA § 16-13-33. That Code section provides: “Any person who . . . conspires to commit any offense defined in this article [GCSA] shall be, upon conviction thereof, punished by imprisonment not exceeding the maximum punishment prescribed for the offense, the commission of which was the object of the . . . conspiracy.”

Appellants Charleston and Rebecca Kelly argue that this Code section is controlling as to the punishment authorized for the offenses of which they were convicted, and since no fine is authorized, the trial court’s imposition of a fine must be set aside. This argument is without merit, because the fines were imposed as a condition of probation. This court has held that even when conviction of the offense charged does not authorize imposition of a fine, a fine up to $10,000 is authorized as a condition of probation. Shelton v. State, 161 Ga. App. 524, 525 (2) (289 SE2d 768) (1982);. Todd v. State, 172 Ga. App. 231 (1) (323 SE2d 6) (1984). Hence, the trial court did not err by imposing a fine as a condition of probation. However, the maximum fine authorized is $10,000, and so much of Charleston Kelly’s fine as exceeds that amount must be set aside.

Judgment affirmed in Case Number 74341. Case Numbers 74339 and 74340 affirmed as to conviction and reversed and remanded as to sentence.

McMurray, P. J., and Beasley, J., concur.


text:
    73750.
    ARA TRANSPORTATION et al. v. BARNES et al.
    (359 SE2d 157)
   Birdsong, Chief Judge.

Pauline Thrash, guardian ad litem for Paulette Thrash, sued ARA Transportation (“ARA”), the owner-operator of a school bus, and Searcy, the bus driver, for injuries received by the child when she was struck by a taxi cab after she alighted from the bus. The plaintiff contended the bus stopped and discharged the child where there was no traffic control device or marked crosswalk; that the bus did not activate its red or yellow flashing lights, and did not extend its stop-arm. The taxi cab apparently did not stop when the bus stopped, and struck the child as she walked in front of the bus.

Defendants ARA and Searcy denied the allegations of negligence and asserted that Paulette Thrash had been proximately and contrib-utorily negligent. ARA and Searcy then impleaded as, third-party defendants, Rapid Taxi Group, Inc., Rapid Taxi Co., Inc., and the taxi driver Barnes, asserting the taxi driver negligently drove his vehicle into the child, and saying that “[s]ince Plaintiff contends Defendant/ Third Party Plaintiffs are liable to Plaintiff, said Plaintiff’s contentions being specifically denied by Defendants/Third Party Plaintiffs, Third Party Defendants, jointly and severally, are or may be liable to Defendants/Third Party Plaintiffs for the claim made in the action against Defendants/Third Party Plaintiffs on theories of contribution and indemnity.”

The trial court dismissed the third-party defendants from the lawsuit upon finding that ARA and Searcy “attempted to substitute the [taxi cab] Defendants in this case by denying that the original Defendants are liable in any way to the Plaintiff and asserting that the three Third-Party Defendants are the culpable parties. Such a substitution of new Defendants is not permitted in third-party practice. Brabham v. Brown, [147 Ga. App. 766 (250 SE2d 495)].”

We granted this as an interlocutory appeal. Held:

1. The basis of the trial court’s ruling, and the proposition advanced by third-party appellees, is that the defendant ARA Transportation cannot implead a third-party as secondarily liable to it for all or part of plaintiff’s claim, and at the same time suggest that it (defendant ARA) may not be liable at all with the consequence that the third-party may be solely and directly liable to the plaintiff. This, says appellee third-parties, constitutes an improper “tender of a substitute defendant.”

The seminal case pertaining to this issue is Central of Ga. R. Co. v. Lester, 118 Ga. App. 794, 800 (2), 801 (165 SE2d 587), where we held: “[T]o maintain the third-party complaint, the present defendant must show that in some fashion the proposed third-party defendant ‘is or may be . . . secondarily’ liable to it. . . . In other words, in order to recover on a third-party complaint, [third-party plaintiff] must establish a right over against [the third-party defendant] either by indemnity . . . subrogation, contribution or warranty.” The defendant in that case asserted that the third-party defendant’s negligence was the sole proximate cause of the plaintiff’s death, and the court held in that event the defendant had no right to indemnity or contribution from the third-party. A great many cases have followed this one. E.g., Winkler Inc. v. Vilston, N. V., 172 Ga. App. 686 (324 SE2d 542); Stein v. Burgamy, 150 Ga. App. 860 (258 SE2d 684); Wol-ski v. Hayes, 144 Ga. App. 180 (240 SE2d 720); Balkcom v. Mull, 129 Ga. App. 277 (199 SE2d 346); Smith, Kline & French Lab. v. Just, 126 Ga. App. 643 (191 SE2d 632); Whitehead v. Central of Ga. R. Co., 126 Ga. App. 407 (190 SE2d 794); Central of Ga. R. Co. v. Lester, supra.

The defendants ARA et al., having pled that third-party defendants (appellees Barnes et al.), jointly and severally, are or may be liable to defendant third-party plaintiff for the claim made in the action against defendant, third-party plaintiff on theories of contribution and indemnity, satisfy third-party pleadings as codified in OCGA § 9-11-14.

The defendant has a right to deny liability but plead in the alternative (OCGA § 9-11-8 (e) (2)) that if he is liable the third-party is or may be liable to him for all or part of plaintiff’s claim against him, pursuant to CPA Rule 14, OCGA § 9-11-14. We have upheld a third-party impleader in cases where the defendant also denied any liability. See Greenway v. DeKalb County, 151 Ga. App. 556 (1) (260 SE2d 552); McMichael v. Ga. Power Co., 133 Ga. App. 593 (211 SE2d 632). But compare Southern R. Co. v. Union Camp Corp., 181 Ga. App. 691 (353 SE2d 519). If the impleader satisfies the pleading requirements of OCGA § 9-11-14 but nevertheless is not permitted by the trial court to bring in a third-party because defendant alternatively denied any liability, the refusal of the third-party impleader will constitute error inasmuch as it deprives the defendant of his undisputed right under the principle to bring in one who is or may be liable “to him” for all or part of plaintiff’s claim against him.

The trial court erred in dismissing this third-party complaint.

2. Rapid Group, Inc. was granted summary judgment by the trial court as follows: “On the record as a whole it is found that Rapid Group, Inc., is not an insurer or surety or a common carrier as that term is defined in Georgia law, and cannot therefore be sued directly upon an insurance theory. It is further found that Rapid Group, Inc., was not the employer or otherwise in a position to supervise in any way the actions of Defendant Oscar Lee Barnes; nor was Defendant Oscar Lee Barnes an independent contractor of Rapid Group, Inc.; nor did Rapid Group, Inc., participate in the employment of Defendant Oscar Barnes.”

The trial court erred in granting summary judgment to Rapid Group, Inc. In the first place, the affidavit of Solomon Bekele, President of Rapid Group, Inc. fails in form and content to set forth specific facts showing there is no genuine issue of material fact, as required by OCGA § 9-11-56. Bekele’s affidavit in support of summary judgment merely states: “I have reviewed the ‘Statement of Material Facts Which Are Not in Dispute as to Motion for Summary Judgment’ which is submitted in support of Rapid Group, Inc.’s motion for summary judgment in this case, and hereby state from my own personal knowledge the facts stated therein are true and correct.” The Statement of Material Facts Not in Dispute, referred to in the affidavit, is a pleading stating certain “facts,” filed by the attorney of Rapid Group, Inc. Pleadings, unsupported by evidence at the hearing on a motion for summary judgment, do not raise factual issues that prevent granting of a summary judgment. Walsey v. American Fletcher Nat. Bank, 151 Ga. App. 104 (258 SE2d 760). In Walsey, we held that an affidavit in which the affiant merely swore that the substance of her answer to the complaint was true, does not satisfy the requirement to set forth specific facts showing there is a genuine issue for trial, and that he is entitled to judgment as a matter of law. The statute clearly provides that “affidavits shall ... set forth such facts as would be admissible in the evidence.” OCGA § 9-11-56 (e). Particularly since the movant bears the burden of proof and the respondent is entitled to every favorable inference and the benefit of every doubt, a mere sworn affirmation of a pleading will not suffice. Moreover, to the extent that the attorney has stated certain “facts not in dispute” in a pleading, they are at best mere conclusions on his part; and an affidavit merely swearing such conclusions are true does not amount to a statement in the affidavit or elsewhere of specific facts showing there is no genuine issue of material fact. See Hart v. Trust Co. of Columbus, 154 Ga. App. 329, 330 (268 SE2d 384).

In the second ground of the grant of summary judgment, the trial court found that Rapid Group, Inc. “was not the employer or otherwise in a position to supervise . . . Barnes; nor was [Barnes] an independent contractor of Rapid Group, Inc.; nor did Rapid Group, Inc. participate in the employment of [Barnes].” Even assuming the mo-vant’s affidavit to be sufficient to satisfy the requirements of OCGA § 9-11-56, the statement therein that Barnes did not have a relation to Rapid Group, Inc. as employee, servant, agent or even independent contractor, are not shown by Rapid Group, Inc. to be supported by any evidence, much less beyond any material issue of fact, as to Rapid Group, Inc.’s right to control the time, manner and method of Barnes’ work, and at best are mere conclusions. See Grant v. Jones, 168 Ga. App. 690 (310 SE2d 272). Moreover, in any case, the movant did not pierce the allegations as to its negligent entrustment of the vehicle to Barnes, as these are not negated by the assertion that Barnes was not its employee, servant, agent or even an independent contractor. There was no duty upon respondents ARA and Searcy to produce refuting evidence until the movant Rapid Group, Inc. had pierced the allegations of the third-party complaint and produced evidence conclusively negating the essential elements entitling the respondents to recover under any theory that may be fairly drawn from the pleadings and evidence. The movant cannot win summary judgment upon mere con-clusory statements in his affidavit. Fort v. Boone, 166 Ga. App. 290, 291 (304 SE2d 465).

Decided June 8, 1987

Rehearing denied June 24, 1987.

George H. Connell, Jr., Christopher E. Penna, for appellants.

Victor Long, Thomas E. Cuffie, Sidney L. Moore, Jr., for appel-lees.

The trial court erred both in granting summary judgment to Rapid Group, Inc. and in dismissing all third parties from the case.

Judgment reversed.

Deen, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    73856, 73857.
    McDONOUGH CONTRACTORS, INC. v. MARTIN & DeLOACH PAVING & CONTRACTING COMPANY (two cases).
    (359 SE2d 200)
   McMurray, Presiding Judge.

On July 9, 1985, plaintiff Martin & DeLoach Paving & Contracting Company filed a contract action against defendant McDon-ough Contractors, Inc. A default judgment was entered in the contract action on February 4, 1986. On May 16, 1986, defendant McDonough filed its motion to set aside the judgment which was denied in an order filed August 7, 1986. In Case No. 73857 defendant McDonough appeals the denial of its motion to set aside the judgment in the contract action.

On February 5, 1986, plaintiff Martin & DeLoach Paving & Construction Company (“Martin & DeLoach”) filed a petition for declaratory judgment alleging that defendant City of Canton (“city”) owed a sum to defendant McDonough Contractors, Inc. (“McDonough”); that the defendant city had refused to pay to plaintiff the amount of plaintiff’s judgment against defendant McDonough; that plaintiff was fearful that if defendant city paid its debt to defendant McDonough that the funds would be dissipated, irreparably harming plaintiff. Plaintiff prayed that the defendant city be enjoined from paying any funds to defendant McDonough; that the defendant city be commanded to pay over the amounts owed to defendant McDonough into the registry of the superior court; that the court declare the relative rights of plaintiff and defendant McDonough to the amounts owing by defendánt city; and, that upon plaintiff showing its entitlement to damages from defendant McDonough that such sum be paid over from the registry of the court to plaintiff. By a temporary restraining order filed February 5, 1986, the defendant city was ordered to pay into the registry of the court the sums owing to defendant McDon-ough. On April 28, 1986, the superior court entered its order, noting that the defendant city had complied with its temporary restraining order by depositing the sum owed to defendant McDonough and discharging the defendant city as a party to the action. The court also found that defendant McDonough was in default; that plaintiff’s action substantially complies in form with the procedures for attachment; and, that plaintiff “is entitled to so much of the funds held in the Registry of the Court, as were received from the [defendant] City, as are shown by the Writ of Fieri Facias, dated February 5, 1986. . . .’’On May 16, 1986, defendant McDonough filed its “Claim for Money Held by the Court and Answer to Equitable Petition for Declaratory Judgment” and on May 19, 1986, filed its motion for new trial or in the alternative motion to set aside the judgment. By an order filed on August 7, 1986, the superior court denied defendant McDonough’s motion for new trial, or in the alternative, motion to set aside the judgment and struck its claim for money held by the court and answer to petition for declaratory judgment. In Case No. 73856, defendant McDonough appeals from the denial of its motion for new trial or in the alternative motion to set aside judgment. Held:

1. In both cases on appeal, defendant McDonough contends that the superior court erred in denying its motions to set aside the default judgment entered against it, because a non-amendable defect exists on the face of the records in that plaintiff’s complaints fail to allege that venue is proper in Cherokee County. See OCGA § 9-11-8 (a) (2). Defendant McDonough acknowledges the general rule that a party who, having been properly served, wishes to rely on the defense of lack of venue, must bring it to the attention of the court prior to allowing the case to go to default judgment or the defense is waived. See OCGA § 9-11-12 (h) (1). Echols v. Dyches, 140 Ga. App. 191 (230 SE2d 315). Padgett Masonry &c. Co. v. Peachtree Bank &c. Co., 130 Ga. App. 886 (204 SE2d 807); Bouldin v. Contran Corp., 167 Ga. App. 364 (306 SE2d 685); Cotton v. Ruck, 157 Ga. App. 824 (278 SE2d 693). However, defendant McDonough argues that a distinction exists based upon whether jurisdiction is alleged in the plaintiff’s complaint. Of the above cases, our opinion in two of the cases notes that jurisdiction was alleged in plaintiff’s complaint. But in Bouldin v. Contran Corp., supra, and Cotton v. Ruck, supra, there is no mention of the existence of allegations of jurisdiction in plaintiff’s complaint, indicating that such allegations did not contribute to the ratio decidendi of those cases. We find the above cases, particularly Cotton v. Ruck, 157 Ga. App. 824, supra, indistinguishable and controlling in the case sub judice. Nor is the above-stated general rule of waiver by nonaction altered by the 1974 amendment to § 60 (d) of the Civil Practice Act, now OCGA § 9-11-60 (d). Vanguard Diversified v. Institutional Assoc., 141 Ga. App. 265 (1) (233 SE2d 247).

Decided June 24, 1987.

Charles C. Black, for appellant.

Robert S. Stubbs II, for appellee.

2. The superior court did not err in denying defendant McDon-ough’s motion for new trial in the declaratory judgment action (Case No. 73856). As there was no verdict, or decision as to the facts, a new trial cannot be granted. Sunn v. Mercury Marine, 166 Ga. App. 567, 568 (305 SE2d 6).

Judgments affirmed.

Sognier and Beasley, JJ., concur.


text:
    74156.
    BOSTIC v. THE STATE.
    (359 SE2d 201)
   Sognier, Judge.

Appellant was convicted of theft by taking of an automobile, giving a false name and terroristic threats, and he appeals.

1. Appellant contends in his first two enumerations of error that the trial court erred by allowing into evidence a gun belonging to Eric Perry, and by allowing testimony relating to an armed robbery and theft of an automobile committed by Perry and Jerry Mills.

The evidence disclosed that about 2:30 a.m. Dr. James Jones drove to Counsel’s, a bar in Savannah, Georgia. He parked his Subaru station wagon in a well-lighted area across the street and as he was entering the bar exchanged greetings with a man standing outside the bar who “may” have been appellant. After entering the bar Dr. Jones noticed two men sitting in a booth with no drinks. Dr. Jones sat at the bar and a short time later became aware that a third man had entered and sat down with the two men in the booth. A few minutes later Dr. Jones went into the bathroom and as he started to leave, he was struck on the head several times with a metal object and knocked to the floor by two men. A gun was placed at Dr. Jones’ throat and the men took his watch, keys, $10 cash and a credit card. The men told Dr. Jones to stay in the bathroom and the men departed. Dr. Jones went back into the bar and told the people present to see if his car was still in the parking lot. Someone informed Dr. Jones “they” were driving his car away, and it was the three men who had been in the booth. Police were called and a lookout for Dr. Jones’ car was broadcast. A few minutes later police saw three men in Dr. Jones’ car, stopped the car and arrested Perry, Mills and appellant, who was sitting in the back seat. A pellet gun belonging to Perry was on the floor under the driver’s seat, and Perry was driving the car. Appellant was very belligerent at the scene and on arrival at the police station gave the police a false name and threatened violence to several officers, including threats to kill them.

A microanalyst testified that hair on the grip of the gun found in the car and a hair sample from Dr. Jones’ head revealed sufficient similarities to indicate they could have a common origin. In a statement to police appellant acknowledged that he had been in Counsel’s for a short time around the time of the robbery, but he denied talking to Perry and Mills. He also denied knowing the car he was in was stolen, and said he was not serious about the threats.

Appellant argues that it was error to admit the gun and the mi-croanalyst’s testimony into evidence, and to allow testimony about a robbery, because he was not charged with, and did not participate in, the robbery. This argument is without merit.

Circumstances forming a part or continuation of the main transaction are admissible as res gestae. Shouse v. State, 231 Ga. 716, 719 (8) (203 SE2d 537) (1974); Grant v. State, 141 Ga. App. 272, 275 (2) (a) (233 SE2d 249) (1977); Cleveland v. State, 155 Ga. App. 267, 268 (2) (270 SE2d 687) (1980). It does not matter that the act or transaction is another criminal offense and does not tend to establish the main offense. Grant, supra. In the instant case the events triggering the theft of Dr. Jones’ car started in Counsel’s bar and terminated some thirty to forty-five minutes later when appellant and his companions were arrested in the stolen car. Appellant admitted he was in Counsel’s and that he departed in Dr. Jones’ car. Thus, the evidence as to the armed robbery was admissible not only as part of the res gestae, but also as circumstantial evidence that appellant participated in the theft of the car. In Shouse, supra, it was held that two guns found in the car when the defendants were arrested were admitted properly, as all circumstances connected with the arrest are proper matters to be submitted to the jury to be weighed by them for what they are worth. It follows that the court properly allowed testimony by the microanalyst as to hair found on the gun, as his testimony tied the weapon to the armed robbery which triggered the chain of events leading to charges against appellant.

2. In his next two enumerations of error appellant alleges it was error to allow a transcript of appellant’s tape-recorded statement to be read to the jury in lieu of playing the tape itself, and to allow the transcript of his statement into evidence without a proper foundation having been laid. Appellant argues that because certain portions of the tape were inaudible and could not be transcribed, it was inadmissible. However, the fact that a tape is not flawless does not render it inadmissible. Thomas v. State, 240 Ga. 393, 399 (2) (242 SE2d 1) (1977). Further, where a proper foundation for admission of a taped conversation is laid and portions of the tape are inaudible, it is within the discretion of the trial judge to admit the tape. Burke v. State, 248 Ga. 124, 125 (2) (281 SE2d 607) (1981).

Turning then to appellant’s argument as to lack of a foundation, this argument is not well taken. Both our Supreme Court and this court have held that a party to the conversation may lay a proper foundation for the admissibility of tape recorded conversations by testifying that he was a party to the conversation; that the tape has not been altered; by identifying the parties to the conversation and where and when the conversation (statement) took place; and by establishing a proper chain of custody. Burke, supra; Carpenter v. State, 167 Ga. App. 634, 638 (2) (3) (307 SE2d 19) (1983). In the instant case a proper foundation was laid by Detective Lister, who conducted the interview of appellant and was a party to the taped interview. Lister established the chain of custody, testified that the tape was not altered, and verified the accuracy of the transcript by playing the tape and comparing it to the transcript. Thus, a proper foundation was laid for admission of both the tape and the transcript. Burke, Carpenter, supra.

When this issue arose the prosecuting attorney stated he was using the transcript instead of the tape because certain portions of the tape were inaudible and the tape was of poor quality. The court overruled appellant’s objection to use of the transcript on the ground that the tape was inaudible and the transcription was as good as could be done. Under such circumstances we find no error in allowing the transcript to be read into evidence.

We note initially that the “best evidence” rule has nothing to do with evidence generally, but is restricted to writings alone. OCGA § 24-5-4; Willingham v. State, 134 Ga. App. 603, 606 (3) (215 SE2d 521) (1975); Rutledge v. State, 152 Ga. App. 755, 759 (4) (264 SE2d 244) (1979). Thus, the best evidence rule was not applicable to the tape recording of appellant’s statement. Rather, the tape was primary evidence and the written transcript was secondary evidence which, from necessity in some cases, is substituted for stronger and better proof. OCGA § 24-5-1. “Cases of necessity or manifest convenience, resting on principles of reason and justice, may be made exceptions to the general rule requiring the production of primary evidence.” OCGA § 24-5-3. We find the instant case to be one falling within the exception just quoted. The tape itself would have been inaudible to the jury without the use of special equipment which was not readily available. A proper foundation for admissibility of the transcript of the tape had been laid, including testimony as to its accuracy and authenticity. Thus, whether considered a matter of necessity or convenience to avoid delaying the trial, we find the transcript was admissible as an exception to the general rule requiring the use of primary evidence, and it was not error to have the typed transcript of appellant’s statement read into the record. Cash v. State, 166 Ga. App. 835-836 (3) (305 SE2d 618) (1983). Cf. White v. State, 163 Ga. App. 179, 180 (2) (292 SE2d 875) (1982).

3. In his last two enumerations of error appellant asserts that the evidence is not sufficient to support his conviction of theft by taking and that the trial court erred by denying appellant’s motion for a directed verdict of acquittal. He argues that there was no evidence to support his conviction of theft by taking because the State established only that he was present at the scene, and mere presence at the scene of a crime is not sufficient to support a conviction. While that is a correct statement of the law, Shirley v. State, 166 Ga. App. 456, 457 (1) (304 SE2d 468) (1983), there was more than mere presence to connect appellant with the automobile theft, as we discussed in Division 1. While each of the facts connecting appellant to the theft, taken separately, might not be sufficient to show appellant’s role as an aider and abettor to the theft, taken as a whole such evidence is sufficient to support the verdict of the jury. “To sustain a conviction based upon circumstantial evidence, every inference except the guilt of the accused need not be excluded, but only reasonable inferences so as to justify the inference of guilt beyond a reasonable doubt.” Brockington v. State, 152 Ga. App. 11, 13 (2) (262 SE2d 170) (1979). Whether every reasonable hypothesis except that of guilt of the defendant has been excluded is a question for the jury. Jones v. State, 165 Ga. App. 36, 38 (1) (299 SE2d 576) (1983). We find the evidence as to theft by taking an automobile sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

In regard to appellant’s motion for a directed verdict of acquittal as to the theft charge and the charge of terroristic threats, appellant’s only argument is that his threats were just “big talk.” However, the record discloses that the officers took the threats seriously, and the question of criminal intention is for the jury, not the court. Jerome v. State, 143 Ga. App. 649 (239 SE2d 541) (1977); Brewer v. State, 156 Ga. App. 468 (1) (274 SE2d 817) (1980). Thus, we find the evidence of terroristic threats sufficient to meet the Jackson v. Virginia, supra, standard of proof.

Since the evidence was sufficient to support the convictions, it was not error to deny appellant’s motion for a directed verdict of acquittal. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., con curs in Divisions 1 and 3 and in the judgment only in Division 2.

Decided June 24, 1987.

Kenneth H. Cail, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory R. Jacobs, Assistant District Attorney, for appellee.


text:
    74293.
    STARGELL v. THE STATE.
    (359 SE2d 205)
   Pope, Judge.

Alonzo Stargell was convicted of felony theft by shoplifting pursuant to OCGA § 16-8-14 (b) (1) (C) and appeals.

1. Appellant contends that the evidence was insufficient to support the verdict. The evidence submitted by the State showed that appellant and a co-defendant named Anthony Pope entered a K-Mart store in DeKalb County where they were observed by a security officer through a one-way mirror of an upstairs stockroom go through the store to the automotive department. While a sales clerk waited on another customer, appellant took an Audiovox Graphic Equalizer valued at $79.97 from an unlocked display case and placed it on another counter. He and Pope then acquired a shopping cart, put the equalizer in it and walked to the back of the store where they took it out of the box it was packaged in. As they entered the garage area of the store, Pope put the equalizer in the front of his pants and held a sweater over it. Pope and appellant left the store without paying for the equalizer and were met outside by the security agent and his assistant. Pope fled and the equalizer was subsequently recovered in the bushes of a nearby restaurant in the general direction in which he ran. Appellant was arrested.

Appellant testified at trial that when he and Pope entered the K-Mart they went in different directions, Pope to the radio department and he to the jewelry department where he browsed around for about fifteen minutes. When Pope returned, they left the store. Two guys then grabbed appellant, took him back in the store and questioned him, but he did not know what they were talking about. The State introduced evidence of three prior shoplifting offenses perpetrated by appellant in K-Mart stores in DeKalb County to show motive, intent, bent of mind, course of conduct, scheme and identity. Their introduction in evidence was not objected to by appellant nor enumerated as error.

“After reviewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could reasonably have found the essential elements of the offense of theft by shoplifting beyond a reasonable doubt. [Cits.]” Jenkins v. State, 172 Ga. App. 715, 716 (324 SE2d 491) (1984); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). This enumeration is therefore without merit.

2. Appellant complains that his conviction for felony shoplifting under OCGA § 16-8-14 (b) (1) (C) was not authorized. The statute provides that where the subject of the theft is less than $100 in value, the person convicted shall be punished as for a misdemeanor, unless he has previously been convicted three or more times for such offense. The prior convictions must be alleged in the indictment, Parker v. State, 170 Ga. App. 295 (1) (316 SE2d 855) (1984), and no conviction may be used for such purpose where an indigent defendant was neither represented by counsel nor waived any right to counsel at the proceedings prior to such conviction. Baldasar v. Illinois, 446 U. S. 222 (100 SC 1585, 64 LE2d 169) (1980). Appellant asserts that one of the three convictions under which he was indicted is deficient because it does not show that he was represented by counsel and the record is not clear as to whether he knowingly waived such representation.

The contested conviction was a plea of guilty which contained on its face an “affidavit of defendant prior to entering plea” form reciting, inter alia, that appellant, being duly sworn, averred that he had been advised of his right to be represented by a private attorney or a public defender if eligible, his right to a trial by jury and assistance of counsel, and that the entry of his plea was free and voluntary. This form was signed by appellant and the trial judge. The trial judge whose signature appeared on the guilty plea testified in court that it was his practice in every case in which he took a criminal plea to ask a defendant if he wished to enter the plea, if he were unrepresented by counsel, and to inform the court if he wished to waive counsel. The judge outlined in detail the procedure he used and questions he always asked to determine if the waiver was completely knowledgeable and voluntary, and how he explained all of his rights to a defendant. He testified that if the defendant asked for an attorney, he “routinely appointed public defenders.”

Appellant admitted that his signature appeared on the affidavit form waiving his rights, but testified that he did not understand that if he could not afford an attorney one would be appointed to represent him. The trial court in the instant case found that appellant did have notice of his rights in the prior guilty plea, that he knowingly waived his rights and that the plea was entered pursuant to the judge’s usual practices as stated in his sworn testimony.

While evidence of a customary procedure may be used to establish compliance with constitutional rights, or the waiver thereof, “[wjaiver of counsel requires more than a showing of a knowledge of right to counsel; there must also be evidence of relinquishment.” Jones v. Wharton, 253 Ga. 82, 83 (316 SE2d 749) (1984), and citations. Although a transcript of proceedings is preferable, we conclude that the record of the guilty plea adequately reflects a finding on the part of the trial judge taking the plea that the appellant chose to proceed without a lawyer, and that his choice was made after he was apprised of his right to counsel. Clarke v. Zant, 247 Ga. 194 (275 SE2d 49) (1981). Accord Singleton v. State, 176 Ga. App. 733 (337 SE2d 350) (1985); Callahan v. State, 175 Ga. App. 303 (333 SE2d 179) (1985). Accordingly, we find no ground for reversal.

Decided June 24, 1987.

Carl P. Greenberg, for appellant.

Robert E. Wilson, District Attorney, R. Stephen Roberts, Elisabeth G. MacNamara, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.