author: Andrews, Judge.

text:
    A91A1473.
    CHRISTIAN v. MONROE COUNTY et al.
    (417 SE2d 37)
   Andrews, Judge.

Helen Christian was injured in an automobile accident on Georgia State Highway 87 in Monroe County and filed a complaint against Monroe County, the Georgia Department of Transportation (DOT) and individual employees of that agency. In her complaint, Christian alleged that the defendants were jointly and severally negligent in the design, maintenance and repair of the highway, in failing to warn of the danger and in maintaining and failing to abate the nuisance created when water collected on the surface of the road. The complaint alleged that the road was part of the state highway system and no evidence to the contrary was submitted.

Monroe County filed a motion to dismiss based in part on the fact that it exerted no control over the road since the highway was owned, controlled and maintained by the State of Georgia and the DOT. The trial court denied the motion finding that under OCGA § 34-2-6 Monroe County was potentially liable and that the statute did not relieve the county of its duty to defend the lawsuit.

Subsequently, Monroe County filed a motion for summary judgment again contending that the county had no responsibility for State Route 87 and that claims of negligence were appropriately directed against the DOT alone. The county also argued that it was immune from liability since it had no insurance coverage with respect to Christian’s claims. In support of its motion, the county filed the affidavit of the clerk of the county board of commissioners, Curtis Jenkins, in which he swore that: “the records of Monroe County reflect that State Route 87 is not owned by Monroe County and is not located on right of way owned by Monroe County. Monroe County has never been responsible for or involved in the acquisition, design, construction, or maintenance of said road, and said road has never been in any way under the control of Monroe County.” Affiant Jenkins also swore that no insurance policy provided coverage for any incident occurring on the right-of-way of public roads or streets and that “Monroe County has no insurance policy which will provide any coverage for the negligent maintenance, design, or construction of public streets or roads.”

The trial court granted the county’s motion and Christian appeals.

1. In her first enumeration of error, Christian claims that the trial court erred in determining that Monroe County had no duty with respect to State Highway 87 and therefore in granting the motion for summary judgment.

Christian first argues that the county was liable because it maintained a nuisance. At the outset we note that although counties are immune from suit generally, certain nuisance suits for damages can be maintained against a county under the constitutional provisions against taking or damaging private property for public purposes. DeKalb County v. Orwig, 261 Ga. 137, 138 (402 SE2d 513) (1991). Here Christian alleged that the water on the highway constituted a nuisance for which she could maintain a suit against Monroe County. We disagree and find that, as a matter of law, the instant facts did not amount to a nuisance and the trial court properly granted summary judgment regarding that claim.

Next, we address Christian’s argument that summary judgment was improper since the county owed her a duty to maintain a safe highway and that its continued presence in the lawsuit was proper. Citing OCGA § 32-4-1, Christian argues that Monroe County has concurrent responsibility with the DOT for state highways lying within its boundaries. Though we concede that the statute is somewhat ambiguous, we do not interpret it as imposing a general duty of maintenance for the state highway system on the county. Although under OCGA § 32-2-2 (a) (5) a county may assume responsibility for construction or maintenance of any public road, in the absence of a specific agreement by which the county assumes such duties, there is no general duty imposed on the counties to maintain state highways. See OCGA §§ 32-4-41; 32-2-2 (a) (1).

Furthermore, although the principles of sovereign immunity discussed in Williams v. Ga. Power Co., 233 Ga. 517 (212 SE2d 348) (1975), have undergone change (see, e.g., Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987); Toombs County v. O’Neal, 254 Ga. 390, 391 (330 SE2d 95) (1985)), the recognition in Williams that no statutory provision imposes liability on counties for torts arising out of defects on highways remains valid. See also Berrien County v. Vickers, 73 Ga. App. 863 (38 SE2d 619) (1946) (decided under former Code Ann. § 95-1001); OCGA § 36-1-4.

Christian argues that OCGA § 32-2-6 (a) imposes a duty upon a county for defects arising out of highways, regardless of the county’s responsibility. This argument is also without merit. Traditionally OCGA § 32-2-6 (a) has provided a mechanism by which a county may be sued as an arm of the state and by which the DOT defends and is responsible for all damages in such action. Sikes v. Candler County, 247 Ga. 115 (274 SE2d 464) (1981). Prior to Price, supra, this statute provided the exclusive procedure whereby the DOT could be made responsible for money damages in cases involving allegations of defective construction and maintenance of state highways. See Powell v. Ledbetter Bros., 251 Ga. 649 (2) (307 SE2d 663) (1983), reversed in part David Allen Co. v. Benton, 260 Ga. 557 (398 SE2d 191) (1990); State Hwy. Dept. v. Parker, 75 Ga. App. 237 (43 SE2d 172) (1947).

Decided March 12, 1992.

Harrison & Willis, Randall P. Harrison, for appellant.

Mills, Freeman, Vaughn & Sosebee, W. Franklin Freeman, Jr., for appellees.

Although the changes in the area of sovereign immunity have not operated to repeal OCGA § 32-2-6, see Dept. of Transp. v. Land, 181 Ga. App. 94 (351 SE2d 470) (1986), reversed in part 257 Ga. 657 (1987), neither have those changes extended a county’s liability further than “under existing laws.” Williams, supra. Thus, the statute continues to provide the mechanism for suit when “ ‘the liability of the county referred to is primary, and that of the [DOT] is ultimate.’ ” Parker, supra at 241; Tounsel v. State Hwy. Dept., 180 Ga. 112, 118 (178 SE 285) (1934). Accordingly, where there is no liability for the county, the mechanism for holding the DOT responsible for damages under OCGA § 32-2-6 (a) does not create such liability. Purser v. Dodge County, 188 Ga. 250 (3 SE2d 574) (1939).

We are cognizant that previous interpretations of OCGA § 32-2-6 (a) have rested largely on principles involving sovereign immunity. Despite this fact, the additional implicit conclusion of previous cases — that § 32-2-6 does not create a duty by the county — remains sound law. See Williams, supra; Parker, supra; Purser, supra. Christian cites Dept. of Transp. v. Land, supra, to support her claim that OCGA § 32-2-6 creates a duty. That case is inapposite since in Land, unlike in the instant situation, the issue was not whether the county originally owed the plaintiff a duty, but whether the county would be indemnified and provided a defense by the DOT.

In this case, the uncontroverted facts established that Monroe County had no duty with respect to the portion of the highway on which the accident occurred and the trial court’s grant of summary judgment was proper.

2. Because of our conclusion in Division 1, we need not address the enumeration regarding the county’s insurance policy.

Judgment affirmed.

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


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A91A2005.
    WESTBROOK et al. v. M & M SUPERMARKETS, INC. et al.
    (416 SE2d 857)
   Cooper, Judge.

Appellants brought this action for negligence and loss of consortium against appellees for injuries suffered by appellant Fred West-brook (“Mr. Westbrook”) when he slipped and fell on an icy sidewalk in front of a store operated by a supermarket. The supermarket leased the premises from the owner. The trial court granted summary judgment to appellees, the supermarket operator and the owner of the store and the appellants appeal, contending that appellees were not entitled to summary judgment because genuine issues of fact remain for trial.

Mr. Westbrook testified in his deposition that on the day of the accident he had been at home most of the day because of the snow and ice which had accumulated on the ground and roads due to an earlier snowfall. Later in the day Mr. Westbrook left his house with his wife and daughter to go shopping. Prior to arriving at appellees’ store, Mr. Westbrook had visited two other stores, where he noticed ice and snow on the sidewalks. As Mr. Westbrook was approaching appellees’ store to go inside, he noticed ice and snow in the parking lot and also on the sidewalk in front of the store. Mr. Westbrook testified that as he walked from his car to the entrance of the store, he was being careful so that he would not fall. He stated that he appreciated the danger of icy sidewalks as he had previously witnessed persons fall on ice. Mr. Westbrook was able to enter the store and do his shopping; however, when he was leaving the store with his groceries, he slipped and fell on the icy sidewalk.

1. Appellants first argue that a question of fact exists as to whether Mr. Westbrook had knowledge of the ice and snow which had accumulated on the sidewalk in front of appellees’ store. “ ‘ “The mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such persons, even when he has invited them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully on the premises. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” [Emphasis in original.] [Cit.]’ [Cit.]” Harris v. Star Svc. &c. Co., 170 Ga. App. 816, 817 (318 SE2d 239) (1984). It is apparent from the deposition testimony of Mr. Westbrook that there is no genuine issue of fact regarding his knowledge of the icy condition of the sidewalk. He saw the ice in the parking lot and on the sidewalk as he carefully maneuvered his way from his car, across the icy sidewalk and into the store. Thus, contrary to appellants’ contentions, Mr. Westbrook’s knowledge was comprised of more than just his general knowledge of the severe weather conditions. “[He] was [also] aware of the specific condition [of the sidewalk] and of its dangerousness.” Favour v. Food Lion, 193 Ga. App. 750, 751 (389 SE2d 22) (1989). Appellants’ reliance on Phelps v. Consolidated Equities Corp., 133 Ga. App. 189 (210 SE2d 337) (1974) and Telligman v. Monumental Properties, 161 Ga. App. 13 (288 SE2d 846) (1982) is misplaced. “Phelps . . . involved [a] landlord and tenant [situation] in which the [tenant’s] only ingress to and egress from [her] apartment [was] covered with ice and snow; therefore, the [tenant’s] traverses of the known icy conditions were, in effect, not matters of choice.” Harris, supra at 818. “In Telligman, supra, p. 16, this court acknowledged the ‘superior knowledge’ requirement for cases such as this but held that the evidence therein demonstrated ‘conclusively that [plaintiff] had no actual knowledge of the “invisible” ice hazard.’ ” Harris, supra at 818. We conclude that there is no genuine issue of material fact concerning appellees’ liability as an owner/occupier of land as a result of Mr. Westbrook’s slip and fall.

Decided March 12, 1992.

Hallman & Associates, Ronald W. Hallman, D. Jay Stewart, Sutton & Slocumb, Berrien L. Sutton, for appellants.

Bouhan, Williams & Levy, Wilbur D. Owens III, Frank W. Seiler, Fendig, McLemore, Taylor & Whitworth, Charles G. Spalding, Philip R. Taylor, for appellees.

2. Appellants contend in their second enumeration of error that they are entitled to recover based on Mr. Westbrook’s status as an invitee for the owner’s breach of the lease agreement which imposed a duty on the owner to keep the parking areas free of snow. It is undisputed that appellants were not parties to the lease agreement. “ ‘An action in tort cannot be maintained by a third person not privy to the contract. . . for a mere contractual obligation between the defendant and the other contracting party.’ [Cit.]” Buchanan v. Ga. Boy Pest Control Co., 161 Ga. App. 301 (1) (287 SE2d 752) (1982). Appellants’ only right of action in tort, which was discussed in Division 1, is independent of the lease agreement between the owner of the premises and the operator of the store. See Hand v. Harrison, 99 Ga. App. 429 (2) (108 SE2d 814) (1959). Consequently, appellants’ argument is without merit, and the trial court did not err in granting summary judgment to appellees.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A2101.
    N. S. COMPANY, INC. v. CINCINNATI INSURANCE COMPANY.
    (416 SE2d 859)
   Andrews, Judge.

This is an appeal from the trial court’s grant of the Cincinnati Insurance Company’s motion for summary judgment arising out of the following facts:

N. S. Company is in the business of manufacturing and selling wholesale jewelry. It procured an employee dishonesty bond from appellee, the Cincinnati Insurance Company, which provided protection to N. S. Company for losses caused by the fraudulent or dishonest acts of employees.

This lawsuit arose from the acts of an outside salesman for N. S. Company, Chris Scott. In 1989, apparently because of the bankruptcy of one of his customers, Scott failed to pay N. S.. Company amounts it was owed. As part of its efforts to recoup the money lost, N. S. Company filed a claim with Cincinnati.

Cincinnati denied the claim and N. S. filed the underlying lawsuit. Cincinnati then filed a motion for summary judgment claiming that Scott did not commit any fraudulent or dishonest act, that Scott was an independent contractor, not an employee of N. S., and that the claim was not timely filed. The superior court granted the motion on the first two grounds and from that order, N. S. Company appeals.

In its first enumeration of error, N. S. Company claims that the trial court erred in ruling that there were no genuine issues of material fact regarding Scott’s employment.

The Cincinnati policy provided coverage for the dishonest or fraudulent acts of “employees.” The policy defined employee as “any natural person (except a director or trustee of the insured, if a corporation, who is not also an officer or employee thereof in some other capacity) while in the regular service of the Insured in the ordinary course of the Insured’s business during the Effective Period of this endorsement and whom the Insured compensates by salary, wages or commissions and has the right to govern and direct in the performance of such service, but does not mean any broker, factor, commission merchant, consignee, contractor or other agent or representative of the same general character.”

In determining who is an employee within the context of this type of policy, “[w]here the insured exercises control over the defaulting agent, employment generally will be found.” 9A Appleman, Insurance Law & Practice, § 5662; see, e.g., Glens Falls Indem. Co. v. Got tlieb, 76 Ga. App. 70 (44 SE2d 706) (1947). Further, “[t]he essential test of the existence of a covered employment relationship is the fact that the insured employer has control over the conduct or operations of the alleged employee, and it is significant that a given person was in fact treated by the insured employer as being his employee.” 13 Couch, Insurance, 2d ed., § 46:26; see generally Third Fed. Savings &c. Loan Assn. v. Fireman’s Fund Ins. Co., 548 F2d 166 (6th Cir. 1977); compare New Orleans Furniture Mfg. Co. v. Great American Ins. Co., 413 F2d 1278 (5th Cir. 1969).

The policy language here provides that in order to qualify as an employee the employer must have the right to govern and direct the employee and that “contractors” are not covered by the policy. See generally G & C Constr. v. St. Paul Fire &c. Ins. Co., 731 F2d 183 (4th Cir. 1984). Because the policy language here involves the same principles as those involved when determining whether an individual is an independent contractor or employee, we turn to non-insurance cases for guidance. Generally, “[i]n determining whether the relationship of parties under a contract for performance of labor is that of employer and servant or that of employer and independent contractor, the chief test lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work as distinguished from the right merely to require certain definite results in conformity to the contract.” (Citations omitted.) McGuire v. Ford Motor Credit Co., 162 Ga. App. 312, 313 (290 SE2d 487) (1982). “If one is employed generally to perform certain services it may be inferable that the employer retained the right to control the manner, method and means for performance of the contract. However, where there is a specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the right of control was not retained and an independent contractor relation existed.” Dietrich v. Trust Co., 179 Ga. App. 330 (346 SE2d 107) (1986).

The undisputed evidence here was that Scott began working for N. S. as an outside salesman in January 1985. He worked out of his home selling N. S. merchandise, samples of which he had from the company, to jewelers and store owners. Initially, Scott was paid a draw against his commissions.

By 1987, Scott was paid only by commission and was directly invoiced for the N. S. merchandise he sold. In other words, Scott billed his customers for the N. S. merchandise and N. S. billed Scott for the goods. This practice differed from the N. S. practice with other salesmen in that ordinarily, N. S. invoiced the customer and not the salesman.

In 1987, Scott began operating other businesses and selling merchandise of other suppliers. In 1988, Scott became incorporated as “Chris Scott Enterprises, Inc.,” and after that he began paying invoices using “Chris Scott Enterprises, Inc.” corporate checks.

It was undisputed that N. S. Company did not exercise control over the hours Scott worked, the merchandise he had or any other aspect of his operation. N. S. Company gave Scott no specific instructions regarding customers. Other than the general guideline that Scott was not to sell merchandise in New York or Virginia, N. S. Company did not direct Scott regarding the locations in which he sold jewelry. Scott was not required to report to N. S. Company regarding the places he had called on, or the hours he had worked. N. S. Company did not pay any benefits for Scott, did not pay social security taxes, did not withhold taxes from Scott’s earnings and Scott received a 1099 form for the years in question. Scott was free to advertise his sales and to operate his business in any manner he chose. N. S. Company was aware that Scott operated different businesses and sold other merchandise. Evidence was that N. S. Company communicated with Scott about twice a month to determine the status of his sales.

Scott ultimately filed for both individual and corporate bankruptcy and in connection therewith, on August 22, 1989, listed his employer for the past six years as “Chris L. Scott Enterprises, Inc.” His wife listed that she had also been previously employed by Chris L. Scott Enterprises, Inc., for three years. N. S. Company made a claim against Scott in the Chapter 13 reorganization plan as an unsecured creditor for goods purchased and N. S. was also listed as an unsecured creditor in the corporate Chapter 11 reorganization.

In arguing that summary judgment was improper, N. S. contends that there was evidence that Scott was an employee, since if he did not sell enough merchandise, his relationship with the company would be terminated. N. S. also argues that it exercised control over Scott in that the company instructed him not to sell in Virginia and in New York. N. S. claims that the severance of its relationship with Scott because of the unpaid balances also establishes an employer/ employee relationship. Finally, N. S. argues that the fact that Chris Scott is listed as a salesman for whom coverage would apply on another insurance policy establishes that he was not an independent contractor.

N. S. Company’s arguments are without merit. We find that undisputed evidence showed that N. S. Company did not assume the right to control the time, method, or manner of Scott’s work. It is apparent that he was an independent contractor. See generally Whitehall Chevrolet Co. v. Anderson, 53 Ga. App. 406 (186 SE 135) (1936). As such, he is excluded from coverage under the terms of the Cincinnati policy and the trial court’s grant of summary judgment was proper. See generally Dennis v. Malt, 196 Ga. App. 263, 265 (1) (395 SE2d 894) (1990); compare Ledbetter v. Delight Wholesale Co., 191 Ga. App. 64 (380 SE2d 736) (1989). Because of our conclusion with respect to this enumeration, we need not address the remaining enumeration that the actions alleged did not fall within the policy coverage.

Decided March 12, 1992.

Cashin, Morton & Mullins, A. L. Mullins, Jr., Raymond C. Mayer, D. Todd Markle, for appellant.

Saveli & Williams, Charles M. Dalziel, Jr., Jennifer H. Chapin, for appellee.

Judgment affirmed.

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


text:
    A91A2143.
    EVERMAN v. THE STATE.
    (416 SE2d 861)
   Cooper, Judge.

Appellant was convicted by a jury of vehicular homicide, driving under their influence and various other traffic offenses. He appeals from the denial of his motion for new trial.

An automobile owned by appellant ran off the road, resulting in the death of Bruce Parrish, one of the persons in the car. Appellant and Mark Parrish, the deceased’s brother, were also in the car at the time of the accident. Mark Parrish testified at trial that appellant was driving the car at the time of the accident; appellant testified that he did not remember anything about the accident. Prior to trial, appellant requested court appointed counsel; however, the trial court determined that appellant did not meet the indigency standards and was therefore not entitled to court appointed counsel. Appellant, unable to secure retained counsel, appeared at trial pro se and represented himself during jury selection. After the jury was selected, the court, on its own motion, contacted an attorney to assist and advise appellant in presenting his defense and told appellant that the attorney could take whatever role appellant desired. Appellant elected to have the attorney speak for him and, in effect, conduct the trial for the defense. Appellant raises four enumerations of error on appeal.

1. Appellant first contends that he was denied effective assistance of counsel because the court made counsel available to appellant at a point in the trial when counsel did not have adequate preparation time. First of all, appellant, not being indigent, had no right to court appointed counsel. Wood v. State, 199 Ga. App. 252 (1) (404 SE2d 589) (1991). However, the record reflects that at various calendar calls for this case, the court emphasized to appellant the importance of retaining counsel, and that appellant knew it was dangerous to proceed without an attorney on his behalf. Appellant, quite aware of his right to counsel, attempted to secure representation and applied to the court for appointed counsel. Despite his non-indigency, appellant contends that he was unable to afford any of the attorneys that he contacted. Nevertheless, since appellant did not meet the standard for indigency, the court had no obligation to appoint counsel for appellant notwithstanding his efforts to obtain representation. See Greenhill v. State, 199 Ga. App. 218 (4) (404 SE2d 577) (1991). See also Scott v. State, 151 Ga. App. 840 (2) (262 SE2d 198) (1979). Appellant, unable to secure an attorney, decided to proceed alone. Prior to trial, the court asked appellant if he had obtained counsel, and appellant answered that he had not because he had not had time. Appellant then indicated that he was ready to proceed with the trial. The court then made a discretionary decision to contact an attorney to assist appellant even though appellant had no right to such assistance. “ ‘The record shows with convincing clarity that [appellant] knowingly, understanding^ and voluntarily waived the right of representation by counsel. [Cit.]’ [Cit.] ‘In an effort to protect (appellant’s) rights, the trial court appointed (an) attorney . . . [who] was asked by the court to assist him in his self-representation. . . . (Appellant) made a decision to represent himself in this case. . . . This is not a case where a defendant stood trial alone with no assistance or protection of his rights. . . .’ [Cit.] Appellant’s choice [to represent himself] was made after he was made aware of his right to counsel and the dangers of proceeding without counsel.” Williams v. State, 192 Ga. App. 317 (2) (384 SE2d 877) (1989). Appellant emphasizes his diligent efforts to secure counsel. However, a non-indigent defendant’s diligence in obtaining counsel is at issue when the defendant is seeking a continuance in order to secure representation and to prevent being forced to proceed to trial alone. See Wood, supra; Callaway v. State, 197 Ga. App. 606 (398 SE2d 856) (1990). In the instant case, appellant indicated that he was ready to proceed with the trial and did not request, at the outset, a continuance to secure counsel. Appellant waived his right to representation and elected to proceed pro se. When the court announced that an attorney had been enlisted to assist appellant with his defense, the court clearly reiterated to appellant that he was not entitled to appointed counsel; that the court enlisted the attorney on its own motion and solely as an accommodation to appellant; that the attorney did not have time to prepare for the case or file motions for the defense; and that the attorney was there to accommodate the appellant as best he could under the circumstances. The court then asked appellant if he had any questions or concerns about the attorney getting involved in the case. Appellant responded that he had no questions; that he would like the attorney to become involved; and that he chose to have the attorney speak for him during the trial. Therefore, with full knowledge of the circumstances surrounding the attorney’s representation, appellant accepted the lawyer’s assistance and requested the lawyer to conduct the defense. Appellant cannot now complain of ineffective assistance of counsel for lack of preparation time when appellant had no right to appointed counsel, waived his right to representation and then accepted the services of the lawyer with full knowledge of the circumstances. “ ‘When a criminal defendant elects to represent himself, either solely or in conjunction with representation or assistance by an attorney, he will not thereafter be heard to assert a claim of ineffective assistance of counsel with respect to any stage of the proceedings wherein he was counsel.’ [Cit.]” Williams, supra at 319.

2. Appellant next contends that the court erred in failing to grant defense counsel’s motions for a continuance that were made shortly prior to, and after, the close of the State’s case. Defense counsel first requested a continuance to obtain as a witness an accident reconstruction expert to testify at trial, and then asked for a continuance for additional time to investigate matters for the defense. Defense counsel could not state to the court that he would be able to obtain the expert witness in the time requested or what the witness’ testimony would be or how it would add to the evidence already available to the defense. Defense counsel also could not specify what additional investigations were needed by the defense. The trial court denied the motions because they were based on speculation. “[I]t is axiomatic that it is within the discretion of the trial court to grant or refuse to grant a continuance to either party. [Cit.]” Wilder v. State, 199 Ga. App. 514, 515 (405 SE2d 337) (1991). We discern no abuse of discretion by the trial court in denying the motions for a continuance.

3. Appellant argues in his third enumeration of error that the trial court erred in denying appellant’s request for the driving records of Mark and Bruce Parrish and in excluding any evidence of these driving records at trial. Appellant argues that the records will reveal previous DUI offenses of the Parrishes and therefore will be relevant to prove that one of the Parrishes was driving the car rather than appellant. “ ‘Questions of relevancy are generally matters within the court’s discretion. . . .’ [Cits.]” Sleeth v. State, 197 Ga. App. 349 (3) (398 SE2d 298) (1990). We agree with the trial court that the driving records of Mark and Bruce Parrish are irrelevant to, and non-probative of, the issue of who was driving the car. The trial court did not abuse its discretion in excluding the evidence.

4. Since appellant’s brief contains no argument or citation of authority with respect to his fourth enumeration of error, it is deemed abandoned. Boatright v. State, 192 Ga. App. 112 (10) (385 SE2d 298) (1989).

Decided March 12, 1992.

Thompson, Fox, Jolliff, Chandler & Homans, Joseph Homans, for appellant.

C. Andrew Fuller, District Attorney, W. M. Brownell, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Sognier, Chief Judge.

text:
    A92A0002.
    RIFE v. THE STATE.
    (416 SE2d 864)
   Sognier, Chief Judge.

Edward Matthew Rife was convicted of armed robbery, and he appeals from the denial of his motion for a new trial.

In his sole enumeration of error, appellant contends the trial court erred by denying his motion in limine to exclude an oral statement he had made in police custody that he had robbed the victim but not with a knife, as charged. Appellant asserts the statement should have been excluded under OCGA § 17-7-210 (d) because the State had failed to provide him with a copy of the statement at least ten days prior to trial pursuant to his OCGA § 17-7-210 (a), (b) written request. The record reveals that with trial scheduled for January 16, 1991, the demand for production of copies of custodial statements was made by appellant on January 3; the hearing on this demand was held January 9; police officers, in response to a request by appellant, came to his prison cell on Thursday, January 10 and that appellant, after being informed of his rights, made the statement in issue; the prosecutor learned of the statement from the officers involved on Tuesday, January 15, and immediately informed appellant’s counsel; and trial was held, as scheduled, the following day.

OCGA § 17-7-210 provides in pertinent part: “(a) At least ten days prior to the trial of the case, the defendant shall be entitled to have a copy of any statement given by him while in police custody. The defendant may make his request for a copy of any such statement, in writing, within any reasonable period of time prior to trial. . . . (e) This Code section shall not apply to evidence discovered after a request has been filed. If a request has been filed, such evidence shall be produced as soon as possible after it has been discovered.”

Because the record clearly establishes that the statement in issue was made after appellant’s request was filed and only six days prior to trial, subsection (e) of OCGA § 17-7-210 excused the State from complying with the ten day notice period in subsection (a). See Broomall v. State, 260 Ga. 220, 222 (2) (391 SE2d 918) (1990). Talley v. State, 251 Ga. 42 (302 SE2d 355) (1983), cited by appellant, is distinguishable from the case sub judice because the statement in Talley was not “newly discovered” within the meaning of OCGA § 17-7-210 (e) in that it was made during questioning at the time of the accused’s arrest and was known to law enforcement officers (and thus the prosecution) prior to the filing of the request for copies of custodial statements.

Decided March 12, 1992.

Chance, Maddox & Smith, Wade H. Everett, Suzanne H. Hutchinson, for appellant.

Darrell E. Wilson, District Attorney, Paul Carden, Assistant District Attorney, for appellee.

The transcript reveals that the trial court considered appellant’s argument that subsection (e) was not applicable because the statement was not produced “as soon as possible” and rejected that argument on the basis that only two working days had elapsed between the making of the statement and its production. We find no abuse of the trial court’s discretion in deciding that the statement was produced as soon as possible. See Broomall, supra. See generally Lee v. State, 258 Ga. 481, 483 (6) (371 SE2d 389) (1988) (“[o]n appeal, a trial court’s findings as to factual determinations . . . relating to the admissibility of a statement will be upheld unless clearly erroneous. [Cit.]”)

However, even if the statement made on Thursday morning was not produced as soon as possible when provided on Tuesday afternoon, we have carefully reviewed the transcript, which reveals that except for appellant all the witnesses to the robbery, namely, the victim and appellant’s accomplice, testified that appellant used a knife to force the victim to give up his wallet during the robbery, and thus we find it highly probable that the admission of the statement did not contribute to the verdict because the evidence against appellant was overwhelming. See Coney v. State, 198 Ga. App. 272, 273 (1) (401 SE2d 304) (1991). Accordingly, the State’s failure to timely provide appellant with a written copy of his in-custody statement was harmless error. Id.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A0202.
    BANKS v. THE STATE.
    (416 SE2d 866)
   Sognier, Chief Judge.

James Henry Banks was convicted of two counts of armed robbery and two counts of possession of a firearm during the commission of a crime. He appeals from the denial of his motion for new trial.

Appellant enumerates as error the trial court’s denial of his motion to suppress the victims’ identification of him. He contends these identifications were impermissibly tainted by improper showup identifications made at a preliminary hearing. The record reveals that the robbery victims, Delores Logue and William Cunningham, were robbed of their wallets at gunpoint in DeKalb County grocery store parking lots one day apart..Each of the victims gave similar descriptions of their assailant to police. Two days later, appellant was stopped by Atlanta police officers who suspected he was driving a stolen car. He first said his name was William Cunningham and offered as identification Cunningham’s Virginia driver’s license, which had no picture. Upon determining that the car appellant was driving was stolen, the officers arrested appellant. A subsequent search of the car yielded a shotgun plus credit cards and identification taken from Logue’s and Cunningham’s wallets.

DeKalb Police Officer Manikowski included appellant’s picture in a photographic lineup shown to the victims shortly thereafter. Although each victim returned to appellant’s photograph several times, neither made a positive identification. Two weeks later, Officer Manikowski scheduled a preliminary hearing for appellant on the robbery charges. The victims were present in the courtroom when Manikowski escorted appellant, who was dressed in a jail uniform and wearing handcuffs, into the room. Both Logue and Cunningham testified that they immediately recognized appellant as the perpetrator once they saw him in person.

When considering a challenge to a pretrial identification, courts first must determine whether the identification procedure used was impermissibly suggestive. If so, the court then must decide whether, given the totality of the circumstances, there was a substantial likelihood of irreparable misidentification. Killens v. State, 184 Ga. App. 717, 720 (3) (362 SE2d 425) (1987). We agree with appellant that the procedure used was impermissibly suggestive. One-on-one showups have been held to be inherently suggestive, id., especially where, as here, the accused is obviously in custody and escorted by the same investigating officer who summoned the witnesses to appear, and no precaution is taken to ensure the integrity of the identification process. Bradley v. State, 148 Ga. App. 722, 723 (2) (252 SE2d 648) (1979). While there was some evidence in the record that a few other jail inmates were present in the courtroom, there is no evidence that a group of men similar in appearance to appellant was assembled so as to avoid singling out appellant. Compare Wilson v. State, 181 Ga. App. 435 (1) (352 SE2d 618) (1987).

Decided March 12, 1992.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Robert E. Statham III, Assistant District Attorneys, for appellee.

Accordingly, we must address the second prong of the test. Factors to be considered include (1) the opportunity of the victims to view the perpetrator at the time of the crime; (2) the victims’ degree of attention; (3) the accuracy of their prior descriptions of the perpetrator; (4) the level of certainty of their identifications; and (5) the length of time between the crime and the confrontation. Killens, supra at 720. Although each victim viewed the assailant for a short period, both testified that they saw him well enough to be confident of their subsequent identifications. The descriptions they gave police were consistent with appellant’s appearance. See Mitchell v. State, 178 Ga. App. 244, 246-247 (4) (342 SE2d 738) (1986); compare Bradley, supra at 724 (2). The victims’ failure to identify appellant from the photographic lineup does not require the conclusion that their in-court identification was based solely on the one-on-one confrontation, as Logue testified at trial that once she saw appellant’s distinctive head and eye shapes, which were difficult to discern in photographs, she was certain of her identification, and Cunningham also stated he was confident of his in-person identification. See Mitchell, supra at 247. The time lapse of approximately three weeks also did not taint the confrontation. See Killens, supra. Consequently, under the totality of the circumstances, we do not find a substantial likelihood of irreparable misidentification, and accordingly we affirm. See Mitchell, supra.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A0532.
    WEBER v. THE STATE.
    (416 SE2d 868)
   McMurray, Presiding Judge.

Defendant was charged, via a multi-count indictment, with two counts of robbery by sudden snatching and three counts of financial transaction card fraud. An attorney was appointed to represent defendant and, after a jury trial, defendant was found guilty on all counts of the indictment. Defendant’s court appointed attorney then filed a motion for new trial, asserting the general grounds. Defendant subsequently filed pro se requests for the trial court to dismiss his court appointed attorney and to appoint another attorney. In another document entitled, “MOTION FOR TRANSCRIPT AND COURT REPORTERS MATERIAL,” defendant alleged, pro se, that his trial attorney was ineffective.

Defendant’s court appointed trial attorney appeared at the motion for new trial hearing, but asserted no argument in support of defendant’s motion for new trial. More specifically, the trial court asked defendant’s trial attorney, “Any argument?” Defendant’s trial attorney replied, “No, your honor, we would submit it. I think the court is familiar with this case.” Defendant’s motion for new trial was denied. This pro se appeal followed. Held:

“ ‘An indigent defendant is entitled to have counsel appointed to represent him on the first level of appellate review. Douglas v. California, 372 U. S. 353 (83 SC 814, 9 LE2d 811); Ross v. Moffitt, 417 U. S. 600 (94 SC 2437, 41 LE2d 341).’ Chapman v. State, 183 Ga. App. 376, 377 (359 SE2d 14). However, when an indigent criminal defendant elects to waive the right to counsel and represent himself during post-conviction proceedings, ‘ “the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.” (Emphasis supplied.) Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981).” Burnett v. State, 182 Ga. App. 539 (1), 540 (356 SE2d 231). More specifically, the record should reflect a defendant’s appreciation of the charges for which he has been convicted and possible avenues of post-judgment relief. See Moss v. State, 196 Ga. App. 81 (1), 82 (395 SE2d 363). A defendant should also be aware that post-judgment practice involves strict compliance with rules of practice and procedure; that failure to comply with these rules may result in waiver of important issues and that pro se parties are generally bound by the same rules of practice and procedure as a lawyer.” Carver v. State, 198 Ga. App. 676, 677 (1) (403 SE2d 230) (two cases).

In the case sub judice, defendant filed this appeal pro se. However, there is no indication that defendant’s court appointed trial counsel was allowed to withdraw after the denial of defendant’s motion for new trial. Further, the record does not reveal that defendant was made aware of the risk inherent in representing himself or of the value of counsel after conviction, or that defendant knowingly and intelligently waived his right to appointed appellate counsel if defendant were found to be indigent. Consequently, the case sub judice must be “ ‘remanded to the trial court for instructions to (defendant) consistent with (the) holding in Clarke v. Zant(, 247 Ga. 194, supra).’ Cochran v. State, 253 Ga. 10, 11 (315 SE2d 653).” Carver v. State, 198 Ga. App. 676, 677 (1), supra. Upon completion of this procedure, with the findings and holding of the trial court thereon, a motion for out-of-time appeal on behalf of defendant Weber will be allowed.

Decided March 12, 1992.

Manuel S. Weber, pro se.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Appeal dismissed and case remanded.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0598.
    RUCKER v. THE STATE.
    (416 SE2d 871)
    Decided March 12, 1992.

      Walker L. Chandler, for appellant.

      W. Fletcher Sams, District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant was convicted of cruelty to children and he appeals. Held:

1. The transcript reflects that during the prosecutor’s closing argument, defense counsel lodged an objection when the prosecutor commented on defendant’s failure to present witnesses on his behalf. The trial court overruled the objection. We find no error. Bryant v. State, 146 Ga. App. 43 (1) (245 SE2d 333). See also Lowe v. State, 253 Ga. 308, 309 (1) (319 SE2d 834); Smith v. State, 170 Ga. App. 673 (317 SE2d 626).

2. Defendant contends a Department of Family & Children Services caseworker should not have been permitted to testify that defendant admitted he “switched” the victim because defendant was in jail when the admission was made and the caseworker did not advise him of his Miranda (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)) rights. This contention is without merit. It was not incumbent upon the caseworker to advise defendant of his Miranda rights because she was not a law enforcement officer. R. W. v. State of Ga., 135 Ga. App. 668, 671 (2) (218 SE2d 674). See also Grogins v. State, 154 Ga. App. 606 (2), 607 (269 SE2d 98).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0690.
    MATTHEWS v. PEBBLE CREEK APARTMENTS.
    (416 SE2d 870)
    Decided March 12, 1992.
    Olushola Matthews, pro se.

      Robert P. Hein, David R. Passino, for appellee.
   McMurray, Presiding Judge.

This is a proceeding for a dispossessory warrant. Appellant Matthews appeals following the grant of a writ of possession to appellee Pebble Creek Apartments and the award of $723 accrued rent. Held:

As issues other than the amount of rent due were raised by appellant’s answer, a direct appeal is proper. Harris v. Wilwat Properties, 201 Ga. App. 161 (410 SE2d 372). Appellee’s motion to dismiss the appeal is denied.

The judgment recites that it was entered by the trial court after hearing evidence and no appearance by appellant having been made until after the second call of the calendar. All of appellant’s enumerations of error are directed toward explaining the tardy arrival in court and complaining of the trial court’s refusal to thereafter consider appellant’s evidence.

The factual assertions upon which appellant relies to explain the tardy arrival in court are not supported by the record on appeal but are contained only in appellant’s brief. “The burden is on the one who asserts error to show it affirmatively by the record, and the briefs of the parties cannot be used in lieu thereof for adding evidence to support or refute a claim. Gurly v. Hinson, 194 Ga. App. 673 (4) (391 SE2d 483) (1990).” Miller v. Tranakos, 198 Ga. App. 668, 671 (3) (402 SE2d 772). Due to the absence of any evidence in the record in support of the enumerations of error, we must assume that the judgment below is correct and affirm. Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265, 266 (3) (401 SE2d 294); Trend-Pak of Atlanta v. Arbor Commercial Div., 197 Ga. App. 137, 138 (1) (397 SE2d 592).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0714.
    ALLEN v. THE STATE.
    (416 SE2d 869)
   McMurray, Presiding Judge.

Defendant Allen was charged by indictment with two counts of rape, single counts of aggravated sodomy and aggravated assault, and two counts of false imprisonment. A jury acquitted defendant of the rape and aggravated sodomy charges, but convicted him of the aggravated assault and false imprisonment charges. Defendant appeals his conviction of aggravated assault and two counts of false imprisonment. Held:

Decided March 12, 1992.

Sinnreich & Francisco, John R. Francisco, for appellant.

Willis B. Sparks III, District Attorney, Charles H. Weston, Thomas J. Matthews, Assistant District Attorneys, for appellee.

1. Defendant’s first enumeration of error contends that the verdicts are inconsistent. While defendant acknowledges the abolishment of the inconsistent verdict rule in Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216), and that the acquittal on the rape and aggravated sodomy charges do not preclude the findings of fact necessary for the convictions for aggravated assault and false imprisonment under a res judicata theory, he contends that the convictions should be overturned because they are repugnant to, or inconsistent with the acquittals. This, of course, is entirely a matter of semantics as the argument which defendant makes is, in essence, indistinguishable from the inconsistent verdict rule. In any event, application of the principle that a jury is entitled to believe a part of the testimony of a witness and disbelieve other parts is sufficient to sustain a jury’s verdict. See Hines v. State, 254 Ga. 386, 387 (329 SE2d 479). This enumeration of error is without merit.

2. Defendant also contends that there was a fatal variance between proof and indictment with respect to the instrumentality used to accomplish the aggravated assault. However, no issue as to an alleged variance was raised before the trial court. Thus, this issue is not preserved for appellate review. Walker v. State, 113 Ga. App. 526, 527 (1) (149 SE2d 153). See also Lewis v. State, 198 Ga. App. 808, 809 (2) (403 SE2d 233); Truelove v. State, 198 Ga. App. 14 (2) (400 SE2d 396).

Insofar as this enumeration of error may raise an issue as to the sufficiency of the evidence to authorize defendant’s conviction of aggravated assault, it is meritless. A rational trier of fact could reasonably have found from the evidence adduced at trial proof of defendant’s guilt beyond a reasonable doubt of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A91A1539.
    MEAD v. TRUE CITIZEN, INC.
    (417 SE2d 16)
   Cooper, Judge.

This is an appeal from the trial court’s grant of summary judgment in favor of appellee.

On February 17, 1988, appellee, a local weekly newspaper, published an article on two local crimes in which appellant’s name was incorrectly used in connection with one of the crimes. The article stated that appellant was occupying the apartment of a friend who was out of town and that appellant reported to investigating officers that Annie White (“White”) had broken into the apartment by breaking a window with a rock. According to the article, appellant told police that she confronted White by pointing a pistol at her but White took the pistol away and struck appellant in the head. The article recited that White was arrested at the scene and charged with burglary. The article concluded by stating that the perpetrator of the other reported crime and appellant “remain in custody pending completion of investigations and the setting of bond in the cases.” In fact, appellant was not the victim nor was she taken into custody. Appellant was the complainant whose only involvement in the case was that she called the police to report the incident when she heard an altercation in the apartment next to hers. The police report clearly shows appellant as the complainant, and appellant’s name appears directly above the name of the person who is shown as the victim. The victim’s name did not appear in the article. The reporter who wrote the story testified in a deposition that he reviewed the police report of the burglary, inadvertently looked at the wrong line and picked up appellant’s name from the report as the victim of the crime. The reporter had no interviews with other persons about the incident but relied solely on the report. A day or two after the article was published, the reporter was notified by the chief of police of the error. The reporter then reviewed the report, discussed the situation with his editor and wrote a correction, which was published the following week in the next edition of the paper. Several months later, in the May 11 edition of the newspaper, another, more prominent, correction was printed which provided more detail than the first correction and which stated that the paper intended to set the record straight and apologized to appellant for the error. Appellant sued appellee for libel and the trial court, without making specific findings, granted appellee’s motion for summary judgment.

Appellant raises as her sole enumeration of error the trial court’s grant of summary judgment to appellee, contending that appellee’s article was defamatory and constituted a libelous publication because it charged appellant with the commission of a crime. Appellant further argues that appellee is responsible for the negligent publication of a defamation.

“ ‘A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.’ OCGA § 51-5-1. Libel per se consists of a charge that one is guilty of a crime, dishonesty, or immorality. [Cit.]” Morrison v. Hayes, 176 Ga. App. 128 (1) (335 SE2d 596) (1985). See also OCGA § 51-5-2 (newspaper libel). “An essential element of libel is that some type of defamatory statement must have been published. [Cit.] As a general rule, the question whether a particular publication is libelous, that is, whether the published statement was defamatory, is a question for the jury. [Cit.] However, if the statement is not ambiguous and can reasonably have but one interpretation, the question is one of law for the judge. The trial judge should read and construe the publication as a whole, and thereafter ‘may find that it is not defamatory, that it is defamatory, or that it is ambiguous and the question is one for a jury.’ [Cit.]” Thomason v. Times-Journal, 190 Ga. App. 601 (1) (379 SE2d 551) (1989). (Emphasis in original and punctuation omitted.) “[I]n considering whether a writing is defamatory as a matter of law, we look ... at what construction would be placed upon it by the average reader. [Cits.]” Macon Telegraph Publishing Co. v. Elliott, 165 Ga. App. 719, 721 (1) (302 SE2d 692) (1983). In the case sub judice, the article does not, as a matter of law, impute the commission of a crime to appellant. See Morrison, supra at 129. Read as a whole, the article clearly indicates, although erroneously, that appellant was the victim of a crime who took actions in her own defense, not the perpetrator of the crime. The final paragraph, which states that appellant was in custody, does not indicate that she was arrested for any crime. The paragraph is most reasonably interpreted as either a printing mistake (i.e., White’s name should have been included in the final paragraph rather than appellant’s) or, when considered with the rest of the article, as indicating that appellant, as the victim, was also questioned by the police. The article, as a whole; does “not tend to injure appellant’s reputation or expose her to ‘public hatred, contempt, or ridicule.’ [Cits.] The words of the [article] contain no hurtful innuendo regarding appellant’s character or behavior and a reader’s subjective decision to impute such innuendo to the [article] is not actionable as a defamation. [Cit.]” Chance v. Munford, Inc., 178 Ga. App. 252, 253 (342 SE2d 746) (1986). The article “ ‘lacks the element of personal disgrace necessary for defamation.’ [Cit.]” Southard v. Forbes, Inc., 588 F2d 140, 145 (1979). Since the article was not defamatory, the trial court did not err in granting summary judgment to appellee.

Appellant’s claim of negligence against appellee is based upon her assertion that appellee negligently published a defamation. Having determined that the article was neither defamatory nor libelous, appellant’s negligence claim fails. Compare Thomason, supra at 605 (Beasley, concurring specially). As a result of our conclusion herein, we need not reach appellee’s erroneous assertions that the article was privileged and that the actual malice standard, as opposed to the negligence standard, applies.

Decided January 15, 1992

Reconsideration denied March 13, 1992

Hawk, Hawk & Lyons, Victor C. Hawk, for appellant.

Glover & Blount, Percy J. Blount, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1597.
    AGAN v. THE STATE.
    (417 SE2d 156)
   Cooper, Judge.

This is the second appearance of this case in this court. Ramsey Agan, the Honorary Turkish Consul in Atlanta, and a co-defendant, Dr. Rauf Sarper, were indicted for bribery in 1987 and in 1988, after a trial by jury, were convicted. Our first opinion, Agan v. State, 191 Ga. App. 92 (380 SE2d 757) (1989), contains a complete discussion of the facts leading to the indictments. Agan and Sarper transferred in excess of $7,000 denominated as campaign contributions to two DeKalb County Commissioners, in an attempt to gain their favorable votes on a zoning variance for property owned by Agan. Prior to trial, Agan and Sarper filed a joint motion to dismiss for selective prosecution and requested a full evidentiary hearing on that issue. The trial court held a pre-trial hearing on the motion at which a proffer of evidence was made by the defendants, yet the trial court concluded that the proffer was not sufficient to warrant an evidentiary hearing and denied the motion to dismiss. Defendants appealed their convictions, and this court reversed both convictions in Agan, supra. Sarper’s conviction was reversed on the general grounds, and Agan’s conviction was reversed on the jury charge and certain evidentiary issues. This court also determined that, based on the proffer of evidence by the defendants, the trial court erred in denying an evidentiary hearing on the issue of selective prosecution. The Georgia Supreme Court, in State v. Agan, 259 Ga. 541 (384 SE2d 863) (1989), declined to review the decision reversing Sarper’s conviction, yet reversed this court with respect to Agan on the jury charge and rejected certain constitutional arguments raised by Agan. Nevertheless, the Supreme Court affirmed this court’s decision on the issue of selective prosecution and remanded the case to the trial court with direction that an evidentiary hearing be accorded to Agan on his proffer. Pursuant to that direction, the trial court held a full evidentiary hearing on Agan’s claim of selective prosecution and after hearing the evidence, issued an order in which Agan’s motion to dismiss was denied because the court determined that Agan had not carried his burden to prove selective prosecution. It is from this order that Agan now appeals, raising six enumerations of error.

1. Appellant first enumerates that the trial court erred in ruling that he failed to prove the existence of selective prosecution in his case. “ ‘Some selective enforcement is not in itself a constitutional violation. [Cit.] To be a constitutional violation, the selective enforcement must represent an intentional and purposeful discrimination based upon some unjustifiable standard such as race, religion, or other arbitrary classification. [Cits.]’ [Cits.] ‘The burden (is) on (the defendant) to prove a selective prosecution by showing (1) that others generally are not prosecuted for the same misconduct, and (2) the decision to prosecute (him) was based upon impermissible grounds such as race, religion or exercise of constitutional rights.’ [Cits.]” State v. Jackson, 188 Ga. App. 259 (2) (372 SE2d 823) (1988). See Sabel v. State, 250 Ga. 640 (4) (300 SE2d 663) (1983); State v. Causey, 246 Ga. 735 (2) (273 SE2d 6) (1980). As stated in Georgia Dept. of Natural Resources v. Union Timber Corp., 258 Ga. 873 (3) (375 SE2d 856) (1989), “[appellant] had the burden of presenting sufficient evidence of intentional or purposeful discrimination, . . . [cit.], which burden would not have been carried even if it had been shown that other persons or classes of persons may have violated the law without being prosecuted therefor. [Cit.]” In the instant case, the Georgia Supreme Court specified the evidence necessary for appellant to carry his burden, the response required of the State to counter appellant’s proof, and the proof that would be sufficient to support an inference of the existence of discrimination by the trier of fact. The Supreme Court stated:

“[T]he fact that only one person is prosecuted for doing what many others do is no warrant, in itself, for relief. Agan has the burden of proving by the weight of the evidence that his prosecution represents an ‘intentional or purposeful discrimination which is deliberately based upon an unjustifiable standard, such as race, religion, or other arbitrary classification.’ This he must establish, if he can, by proving the averments of the proffer relative to other money transfers, and by showing, through the testimony of the district attorney or otherwise, the extent of any other investigations or prosecutions of donors who are situated similarly. If, notwithstanding the disclosure to the district attorney of the proffer materials, it should appear that he has conducted little or no investigation into apparently similar offenses, or has initiated no prosecutions of any such offenses, only then would it be incumbent upon the district attorney to demonstrate that the prosecution of Agan is something other than selective prosecution.

“Depending upon the evidence, the trial judge as trier of fact might find that similar offenses have gone uninvestigated or unprosecuted; that the district attorney knew or should have known of such offenses; and that failure to act is without a reasonable and responsible explanation. Based on such a finding, the trier of fact might conclude that the circumstances support an inference of the existence of ‘intentional or purposeful discrimination’ based upon an ‘unjustifiable standard’ of an ‘arbitrary classification’ — that is, an arbitrary classification whereby only Agan continues to be prosecuted, and all the rest go free. Such a conclusion would equate to selective prosecution.” State v. Agan, supra at 548-549. (Footnotes omitted.) (Emphasis supplied.)

At the evidentiary hearing before the trial court, appellant extensively examined four public officials, seven major real estate developers in the Atlanta area, a lawyer who represents many major developers in zoning matters, the two commissioners contacted by appellant and the district attorney, in an attempt to meet his burden of proof. Appellant subpoenaed public and personal records from the witnesses, and he presented evidence gleaned from the records produced. Appellant’s proof at the hearing centered primarily on his theory of “chronological coincidence.” Appellant contended that the first part of his burden was met by his proof that several other developers who were not prosecuted or even investigated had made campaign contributions to DeKalb County Commissioners at the time they had zoning matters pending before the commission. Appellant further argued and attempted to show that the two commissioners involved in this case were accepting money from these other developers for their favorable zoning votes and, in an attempt to deflect scrutiny from themselves, they reported Agan to focus attention upon him and to satisfy the public desire for investigation into these practices. Appellant completed his theory by attempting to prove that there was a “good old boy” conspiratorial network in DeKalb County consisting of the major real estate developers, attorney Douglas Dillard, a prominent zoning attorney, Manuel Maloof, the chief executive officer of DeKalb County, and Robert Wilson (“Wilson”), the DeKalb County District Attorney. Appellant contended, and endeavored to prove, that this “network” sustained and protected the practice of contributing to commissioners’ campaigns to gain favorable zoning votes in return. Appellant alleged that this network, especially Manuel Maloof, was prejudiced against Turkish nationals and that all the discriminatory, prejudicial and conspiratorial motives of the “network” are imputed to the district attorney, thereby resulting in a prosecution selectively and discriminatorially focused on Turkish foreigners who were outside the system. The trial court, while acknowledging that appellant did in fact prove that other developers had made campaign contributions while they had zoning matters pending before the county commission, failed to find any evidence of intentional or purposeful discrimination that generated the prosecution of appellant. Based on the evidence received at the hearing, the trial court concluded that the district attorney responded only to the evidence he had in appellant’s case and that he had not failed to prosecute any other case with similar information. The trial court, citing the existing case law on selective prosecution, determined that proof of other campaign contributions alone, without proof of intentional discrimination by the district attorney, was not sufficient to void appellant’s conviction on the grounds of selective prosecution.

We agree with the trial court. We have read and reviewed the entire transcript before us, including all the testimony and the documents produced. Appellant has not met the burden of proof set forth in Jackson, supra, and the other cases cited herein, nor has he presented the proof required to support an inference of discrimination per the Supreme Court’s statement in State v. Agan, supra. First, appellant has not shown that others in a similar situation were not prosecuted. While appellant did show that other developers made contributions while they had zoning matters pending, he failed to show that the contributions of those developers were accompanied by the following factors attendant to the contributions made by appellant: the contributions were made at a time when the commissioners did not have an active campaign structure; appellant propounded his zoning request at the same meeting that he gave the contributions, in envelopes, directly to the commissioners; at the same meetings, appellant promised future contributions; the checks were made out to the commissioners personally rather than to their campaigns; appellant was very persistent in talking to the commissioners and giving them-contributions; a videotape of the contact with the commissioners was made and was available as evidence; the votes of either of the two commissioners involved were necessary for appellant’s zoning to be passed; and the two commissioners approached the district attorney with the evidence of the bribe. When all these factors coalesce, appellant’s situation becomes of a different category than the situations attempted to be shown at the hearing. We find no evidence that anyone else crossed the line of illegality as did appellant. While the district attorney indicated that other situations may appear improper, appellant failed to show that the district attorney knew or should have known of other situations in which the line of illegality was crossed. Despite appellant’s failure to prove similarly situated persons, appellant likewise failed to prove any intentional discriminatory motive of Wilson and the district attorney’s office. As the trial court reiterated, the motives of the commissioners or Manuel Maloof, whatever- they may be, are irrelevant unless shared by Wilson, thereby affecting his decision to prosecute. The federal cases cited by appellant in an attempt to impute the supposed motives of others to Wilson are inapposite and we find appellant’s theory disingenuous. Considering Wil-' son’s testimony and the other testimony presented in detail, there is no proof that Wilson prosecuted appellant for any reason other than good faith law enforcement. Moreover, there is no evidence to support the inference of discrimination as set forth in State v. Agan, supra. As just stated, appellant did not present similar situations that when uninvestigated, nor did appellant show that Wilson had access to information such that he knew or should have known of any similar situation. Wilson testified that he was only aware of a public perception that developers make large contributions to commissioners in an attempt to get their zoning requests passed; however he stated that he cannot convene grand juries or prosecute based upon what he reads in the newspaper. The testimony showed that Wilson was not aware of any specific case, nor did he ignore any information that was brought to his attention. In the wake of appellant’s case, Wilson investigated and questioned the commissioners about their campaign contributions and discovered no other situations with the factors that coalesced in appellant’s case. Wilson stated that he could not prosecute without evidence and with no basis to believe that bribery had occurred. Wilson’s testimony establishes a reasonable explanation for his prosecutorial decisions and supports the conclusion of a good faith prosecution of appellant. Appellant’s first enumeration has no merit..

2. Appellant next contends that the trial court erred in referring to the reversal of Sarper’s conviction as an indication of the amount of proof necessary for the district attorney to proceed with a bribery case. In its order, the trial court commented on the reversal of Sarper’s conviction, stating that “[i]t is most anomalous to now believe the district attorney should proceed against other developers when the appellate courts would not even sustain Sarper’s conviction. If anything, the reversal of Sarper’s conviction suggests even more evidence is necessary before a district attorney can present an indictment in this type of case.” While we do not feel that these comments regarding Sarper’s conviction were necessarily correct or necessarily relevant to the issue before the trial court, the remainder of the trial court order and the decision reached by the court is otherwise correct, as we held in Division 1. Therefore, these comments do not constitute reversible error since “ ‘(w)e have consistently held that a correct decision of a trial court will not be reversed, regardless of the reasons given therefor.’ [Cit.]” Colquitt v. State, 196 Ga. App. 817 (1) (397 SE2d 164) (1990).

Decided January 22, 1992

Reconsideration denied March 13, 1992

George E. Butler II, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Assis tant District Attorney, for appellee.

3. In his remaining enumerations, appellant asserts that the trial court erred in placing time limitations on the subpoenas issued to the witnesses and in excluding evidence that related to certain time periods as irrelevant. The trial court limited the subpoenas issued to the developer witnesses and required them to produce personal documents relating only to the two years prior to appellant’s indictment in 1987. Appellant’s original subpoenas requested the developers’ and the commissioners’ personal documents from 1983 to the time of the hearing in 1990. The trial court, although first limiting the commissioners’ subpoenas to the two years prior to the indictment, later allowed appellant to request all personal documents of the commissioners from 1982 to the time of the indictment. The public records subpoenaed by appellant were not limited by the trial court. The transcript reveals that the testimony of the developers and the commissioners was not strictly limited with respect to time, so that many questions relating to events after the indictment and prior to 1985 were allowed. The trial court held the view that since any alleged selective prosecution occurred at the time of the indictment, post indictment documentary evidence was irrelevant. However, the testimony of the district attorney was not limited accordingly, and appellant was able to question Wilson on matters relating to any time period. Further, the trial court reiterated during the hearing that it would keep an open mind, and if the relevance of any evidence were shown, he would expand his ruling. The specific evidentiary rulings cited by appellant were based upon the trial court’s conclusion that the evidence was not relevant to the specific issue at hand — selective prosecution. “ ‘Even though our rule favors the admission of relevant evidence, the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.’ [Cit.]” Barnwell v. State, 197 Ga. App. 116 (5) (397 SE2d 717) (1990). The Georgia Supreme Court recognized the necessity of “reasonable time limits” on the documentary evidence produced, see State v. Agan, supra at 548, n. 12, and our review of the record reveals no abuse of the trial court’s discretion, no error in its rulings and no barriers to the full presentation of appellant’s case. These enumerations are, likewise, without merit.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Pope, Judge.

text:
    A91A1762.
    BARTNICK v. THE STATE.
    (416 SE2d 739)
   Pope, Judge.

Defendant Gail Marie Bartnick appeals her conviction by jury of the offenses of failure to maintain lane and driving while under the influence of alcohol. Defendant argues the trial court erred in denying her motion in limine and admitting evidence that she refused to submit to the breath test designated by the arresting officer. The arresting officer testified defendant was instructed on the Georgia implied consent law. The operator of the Intoximeter 3000 breath analysis machine testified he handed defendant the mouthpiece to the machine and instructed her to blow into it but her only response was to state that her chest and face hurt, that she needed to see a doctor and would not take a breath test until after she had been seen by a doctor. According to the operator, defendant did not appear to be having trouble talking or breathing. According to the arresting officer and another officer who helped investigate the scene of the automobile accident at which defendant was arrested, defendant declined medical treatment by the emergency medical crew which arrived at the scene. Shé also refused to take the field sobriety test requested by the arresting officer.

At trial, defendant denied she was requested to take any field sobriety test or that she refused to take the breath test. Instead, she testified she was physically unable to submit to the breath test. Defendant’s family physician testified he examined defendant three days after the collision and that defendant suffered abrasions to her chin and upper chest, had swollen lips and could open her mouth only half way, about one inch. In the physician’s opinion, if the Intoximeter mouthpiece required puckering the lips in order to blow into it, defendant’s ability to take the test would have been restricted. However, he did not know the size of the mouthpiece and no evidence was presented concerning its size or shape. The physician also testified she might have had discomfort in her chest and been limited in the volume of air she could blow into the machine. Defendant also presented the testimony of a chemist familiar with the Intoximeter 3000. He testified he examined defendant 16 days after the automobile collision and measured her lung capacity which, in his opinion, was insufficient to have yielded a sample which could have been analyzed by the Intoximeter.

Defendant argues this case is governed by Burson v. Collier, 226 Ga. 427 (175 SE2d 660) (1970), and Department of Public Safety v. Orr, 122 Ga. App. 439 (177 SE2d 164) (1970), and that the operator’s conclusion that defendant refused to take the breath test is not admissible because the evidence shows defendant did not refuse, but was unable to take the test. In both these cases, involving a civil proceeding to suspend the accused motorist’s driver’s license for failure to consent to the breath test ordered by the arresting officer, the evidence showed the accused attempted to comply with the requirements of the test but, because of emphysema, was unable to supply sufficient air volume to permit a reading of the breath sample.

Even if the chemist was correct in his opinion that any sample the defendant would have been capable of giving would have been insufficient to permit a measurement, the defendant in this case, in contrast to the facts of the cases cited by defendant, did not even attempt to comply with the requirements of the test. Thus, this case is similar to Pfeffer v. Dept. of Public Safety, 136 Ga. App. 448 (221 SE2d 658) (1975), in which the accused simply put the mouthpiece of the analyzer to his mouth but did not attempt to blow. The accused in Pfeffer testified that the irritated condition of his throat impeded his efforts to submit to the test and, like defendant in the case now before us, he presented the testimony of a physician concerning his physical condition. Nevertheless, this court held: “While a sore throat or swollen lymph glands may cause pain when the driver complies with instructions for intoximeter tests, that is not the type of inability' which prevents the accused motorist from being able to inflate the bag.” Id. at 450. Likewise, the evidence presented in this case that defendant might have suffered pain or discomfort by submitting to the test does not show, as a matter of law, that she was unable, as opposed to unwilling, to complete the test or excuse her from even attempting to complete it. Thus, the admission of evidence of defendant’s refusal to take the test was not improper.

Moreover, unlike Collier and Orr, this case is not a civil proceeding to suspend the license of a motorist for refusal to submit to a chemical test. It is a criminal case in which the issue is whether defendant was operating her vehicle while under the influence of alcohol. Evidence of the defendant’s refusal to take a chemical test is relevant and admissible to the issue of defendant’s guilt. Wessels v. State, 169 Ga. App. 246 (2) (312 SE2d 361) (1983). Defendant was properly offered the opportunity to explain her refusal. Id. Thus, the trial court did not err in admitting evidence showing defendant refused to take the breath test ordered by the arresting officer.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

Decided February 3, 1992

Reconsideration denied March 13, 1992.

Billy L. Spruell, Brian M. Dubuc, for appellant.

Patrick H. Head, Solicitor, B. Martin First, Beverly M. Collins, Assistant Solicitors, for appellee.


text:
    A91A1898.
    BOWEN v. THE STATE.
    (417 SE2d 18)
   Cooper, Judge.

Appellant was convicted of possession of cocaine with intent to distribute and appeals from the denial of his motion for new trial.

A county deputy, who had a warrant for appellant’s arrest for battery, located appellant at an apartment complex. Appellant was a passenger in a vehicle that was leaving the complex, and the deputy flagged the vehicle to a stop. The deputy walked to the passenger side of the car and asked appellant to get out. As appellant exited the car, he took a plastic bag and put it on the console of the car. The driver of the car covered the bag with his hand but upon request of the deputy, gave the bag to the deputy who determined that it contained several smaller bags of suspected cocaine. The substance in the bags tested positive as cocaine. The deputy testified that he took appellant to the sheriff’s department and read appellant his rights, after which appellant told the deputy that the cocaine belonged to appellant. The deputy testified that he did not record or write down appellant’s statement because he had known appellant all of appellant’s life and they had a very short conversation because they were going to “shoot straight” with each other. The driver of the vehicle testified that as appellant exited the car to talk to the deputy, appellant threw the bag back into the car, told the driver to hold onto it for him, and the driver then attempted to cover the bag with his hand. The driver stated that the cocaine was not his.

1. In his first enumeration of error, appellant argues the general grounds, emphasizing equal access of the cocaine by the driver of the vehicle. The case against appellant includes the testimony of the deputy who observed appellant in actual possession of the cocaine, appellant’s confession and the statement of the driver. Based on that evidence, a rational trier of fact could have found appellant guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Appellant’s reliance on the equal access rule as a defense is misplaced. “The equal access rule, entitling a defendant to acquittal where evidence is presented that others had equal access to a vehicle or that the vehicle had recently been used by others, applies only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of the vehicle. [Cit.]” Wright v. State, 194 Ga. App. 739 (2) (391 SE2d 791) (1990). “ ‘It is simply a defense available to the accused to whom a presumption of possession flows. Because [in the case sub judice] the (S)tate did not show the indicia giving rise to the presumption, that is, ownership or exclusive control of the vehicle, no presumption arose and therefore there was no triggering of the equal access defense.’ [Cit.]” Akins v. State, 184 Ga. App. 441 (1) (361 SE2d 707) (1987). Here, the State did not rely on a presumption to prove appellant’s guilt; the State presented direct evidence of such, and the equal access rule was not implicated. Nor did the court err in failing to charge on equal access as contended in appellant’s eighth enumeration of error.

2. In the second enumeration of error, appellant contends the trial court erred in allowing appellant to be cross-examined at the Jackson-Denno hearing about statements made by defense counsel to the prosecutor during plea negotiations. The trial court conducted a Jackson-Denno hearing outside the presence of the jury to determine the voluntariness of appellant’s confession to the deputy. The deputy testified that he read appellant his rights; that appellant made the confession; and that the deputy made no threats or promises of reward. Appellant testified that he did not tell the deputy that the cocaine was his; , that he denied the cocaine belonged to him; and that the deputy did not read him his rights at the police station. The prosecutor then asked appellant whether he had told anyone, and specifically whether he had told his attorney, that he was bringing the cocaine to his wife. The prosecutor revealed to the court that, during plea negotiations, defense counsel said that appellant had stated that he was bringing the cocaine to his wife. In response to objections by defense counsel, the prosecutor stated that the questioning was an attempt to test the credibility of appellant because the prosecutor was concerned that appellant was committing perjury on the stand. The trial court allowed the questioning to test appellant’s credibility. After a review of the Jackson-Denno hearing, we conclude that the line of questioning pursued by the State was not relevant to the issues of whether appellant did or did not make the confession to the police and whether that confession was voluntarily made. Appellant was not questioned on whether he talked to his attorney about what he said to the deputy, and any statement made to his attorney about his ownership of the drugs does not reflect on, and is not relevant to, whether he made a voluntary confession to the deputy. Consequently, the questioning went beyond the scope of the Jackson-Denno hearing. Nevertheless, we do not conclude that the irrelevant line of questioning rendered the court’s decision to admit the confession clearly erroneous. “Findings by the trial court, as to factual determinations and credibility relating to the admissibility of a confession, will be upheld on appeal unless clearly erroneous. [Cit.] Existence of conflicting evidence at a Jackson-Denno hearing . . . does not automatically cause the trial court’s findings to be clearly erroneous that the confession was freely and voluntarily given. [Cit.] In determining whether the trial court’s ruling . . . was clearly erroneous, an appellate court may look to all the evidence contained in the record. [Cit.]” Gadson v. State, 197 Ga. App. 315, 316 (1) (398 SE2d 409) (1990). Considering the officer’s testimony at the hearing, the court’s credibility determination was not clearly erroneous. This enumeration is without merit.

3. Appellant next contends that an error occurred when the court and the prosecutor threatened appellant with a perjury indictment in order to coerce him to forfeit his right to testify. When the State rested, defense counsel told the court that he had advised appellant not to take the stand and suggested that the court verify with appellant that he was declining to testify voluntarily. The prosecutor then indicated that, if appellant testified, the State would view his testimony toward the possibility of a perjury investigation. The court then proceeded to question appellant in detail regarding his decision not to testify, eliciting from appellant that he was voluntarily making this decision and he did not want to testify because he had been under a lot of strain. Neither appellant nor his counsel objected at trial that appellant was being coerced to forfeit his right to testify. Appellant only indicated that he was knowingly making this decision and was making it voluntarily. “ ‘Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. (Cit.)’ [Cit.]” Hight v. State, 195 Ga. App. 727 (6) (394 SE2d 636) (1990). Moreover, the record does not confirm appellant’s characterization of the prosecutor’s statements of intent as threats. See Murray v. State, 157 Ga. App. 596 (2) (278 SE2d 2) (1981). Nor is there any evidence of any coercion by the court. We find no merit to this enumeration.

4. In his next enumeration of error, appellant argues that the court erred in considering improper evidence during appellant’s sentencing. In the sentencing hearing, the State introduced a prior drug conviction of appellant, and defense counsel stated that the conviction was the only problem involving appellant that counsel was aware of. The State responded by stating that the conviction was not the only other incident involving appellant; that appellant had been arrested many times; and that appellant’s rap sheet (which the record indicates was displayed by the prosecutor) was over six feet long. Again, defense counsel never objected to the reference to the rap sheet, and consequently, any objection was waived. See Hight, supra. Further, the transcript does not affirmatively reveal that the court considered the rap sheet in determining a sentence for appellant, which was five years less than the statutory maximum. See Green v. State, 193 Ga. App. 464 (388 SE2d 57) (1989).

5. Appellant’s remaining three enumerations assert that the trial court erred in failing to grant any of appellant’s three motions for a mistrial during the prosecutor’s closing argument at trial. We first note that “ ‘[t]he trial court has the right and duty to govern the scope of argument by counsel both prior to and after the presentation of evidence. . . . The proper range of comment by counsel is a matter within the discretion of the trial court.’ [Cit.]” Osborne v. State, 177 Ga. App. 408, 408-409 (339 SE2d 627) (1985). “ ‘[T]his court will not disturb a court’s ruling [on a motion for a mistrial] in the absence of a manifest abuse of discretion, and a mistrial is essential to preserve a defendant’s right to a fair trial. (Cit.)’ [Cit.]” Horne v. State, 192 Ga. App. 528, 529 (2) (385 SE2d 704) (1989). Appellant first objected to the portion of the argument in which the prosecutor commented on the deputy’s failure to record or write down appellant’s confession and the deputy’s explanation that he did not do those things because he had a life-long relationship with appellant. The prosecutor stated: “He said, you know, folks, the relationship I had with Dwight Bowen, we don’t need that between us. You know, if he tells me something, he tells me this — between him and me — that’s good enough for me. And I wouldn’t trade [the deputy] for a hundred detectives each with a tape players, extra batteries and ink pens and. . . .” We have considered the context of the entire argument of the prosecutor with respect to this point and conclude that the prosecutor “was commenting on the evidence relating to credibility of [the witness], not expressing [his] personal opinion. Although the prosecuting attorney is prohibited from stating [his] personal opinion, [he] may make permissible inferences from the evidence. [Cit.]” Pittman v. State, 172 Ga. App. 22, 23 (2) (322 SE2d 71) (1984). Next, appellant objected to the prosecutor’s statement to the jury that “now I’m going to talk to you where you feel, and where you feel is simply this: you folks have got to say no to that right there (indicating to the drugs). . . .” “ ‘Appeals to convict for the safety of the community have been upheld. [Cit.]’ [Cit.] Moreover, the State ‘ “may argue to the jury the necessity for enforcement of the law and may impress on the jury, with considerable latitude in imagery and illustration, its responsibility in this regard.” (Cit.)’ [Cit.]” Nebbitt v. State, 187 Ga. App. 265, 268 (4) (370 SE2d 1) (1988). Therefore, the prosecutor’s argument was not improper. Finally, appellant objected to the following statement: “This steals people’s souls; that’s what it does. You can ask — you can ask David Croudip of the Atlanta Falcons or Len Byas [sic.], a member of a basketball team. . . . This is a demon on the street of your community that will steal the souls of your children if you let it. . . .” “[Figurative speech is a legitimate weapon in forensic warfare if there are facts admissible in evidence upon which it may be founded. (Cits.) We find the argument of which complaint is made well within permissible bounds. The prosecutor simply argued the evidence and reasonable inferences arising therefrom and asked the jury to return a verdict of guilty. This he may do. (Cits.)” Hunt v. State, 180 Ga. App. 103 (3) (348 SE2d 467) (1986). The trial court did not abuse its discretion in denying appellant’s motions for a mistrial.

Decided February 10, 1992

Reconsideration denied March 13, 1992

Alden W. Snead, J. M. Raffauf, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A2103.
    ALEXANDER v. THE STATE.
    (416 SE2d 762)
   Pope, Judge.

Defendant Charlie Frank Alexander was convicted of possession of cocaine and appeals.

1. During the charge to the jury, the trial court repeatedly and correctly instructed the jury that the State had the burden of proving defendant’s guilt beyond a reasonable doubt. During the charge on judging the credibility of witnesses, however, the trial court made reference to a preponderance of the evidence standard. Defendant argues the instruction was reversible error. Unlike those cases cited by defendant, this is not a case in which the court gave two conflicting charges on the burden of proof. Cf. Salisbury v. State, 221 Ga. 718 (2) (146 SE2d 776) (1966); Johnson v. State, 148 Ga. App. 702 (2) (252 SE2d 205) (1979). Instead, the only reference to the preponderance of the evidence was limited to the charge on evaluating the credibility of witnesses and did not relate in any way to the standard of proving guilt. Where, as here, the correct charge on burden of proof was given multiple times, an incorrect phrase in an otherwise correct statement of law could not have misled the jury and did not constitute prejudicial error. See Leonard v. State, 146 Ga. App. 439 (5) (246 SE2d 450) (1978).

2. Defendant filed a timely demand for scientific reports and pursuant to OCGA § 17-7-211 defendant was entitled to a complete copy of any such report at least ten days prior to trial. More than ten days prior to trial, the prosecuting attorney served upon defendant’s attorney a handwritten statement that the crime lab report indicated a trace of cocaine was found in one of the six bags found at the site where defendant was seen throwing down a bag. An actual copy of the chemical analysis report, however, was not furnished to defendant until the morning the trial began, when the prosecuting attorney first obtained a copy of it. Defendant argues the trial court erred in denying his motion to exclude evidence of the chemical analysis.

We conclude that reversal is required by this court’s opinion in Luck v. State, 163 Ga. App. 657 (2) (295 SE2d 584) (1982). In that case the prosecuting attorney did not obtain actual possession of a copy of the report of the chemical analysis of the substance defendant was charged with possessing until the day before trial and provided the defendant’s attorney with a copy of the report on the morning of trial. The trial court admitted testimony concerning the chemical test. Even though, as in the case at hand, the prosecutor orally informed defense counsel prior to trial of the information he had received from the crime lab, this court held that strict compliance with the statute was required and the conviction was reversed. “[T]o come within the ambit of the statute, a scientific report need not be in the possession of the district attorney. The report is ‘discoverable’ if it is available to the district attorney. It can not be urged that an existing scientific report in the possession of the state crime lab, as was the report in the instant case, is not ‘available’ to a district attorney. Accordingly, appellant was entitled to a copy of the report in the instant case and the trial court erred in allowing the testimony based upon the report.” Id. at 659.

The State argues that because the prosecuting attorney provided a written summary of the report to defendant’s attorney prior to trial, then pursuant to this court’s holding in Moon v. State, 194 Ga. App. 777 (3) (392 SE2d 19) (1990), the error was harmless. In that case, however, the report in question pertained to the lack of identifiable fingerprints on the packages of drugs the defendants were charged with possessing. This court correctly noted that even if defendants had obtained a copy of the actual report showing the existence of unidentifiable fingerprints and then had been able to supply an independent report identifying them, it was not probable that such evidence would have affected the verdict since such evidence would have been consistent with the reasonable conclusion that defendant had obtained the drugs from someone else. Here, however, as in Luck, it was the chemical analysis of the substance, itself, which was not furnished to defendant as required by statute. The chemical analysis was the only evidence presented at trial that the substance the defendant was charged with possessing was an illegal substance. Consequently, as in Luck, we must reject the harmless error rationale and require strict compliance with the law. “Accordingly . . . ‘the judgment of the trial court is reversed and remanded with direction that testimony and evidence arising from the (state crime lab’s) report be excluded and suppressed from any retrial of this case unless and until the district attorney has fully complied with the provisions of [OCGA § 17-7-211].’ Tanner [v. State, 160 Ga. App. 266] at 268-269 [(287 SE2d 268) (1981)].” Luck, 163 Ga. App. at 659.

Decided February 18, 1992

Reconsideration denied March 13, 1992

Jonathan Goldberg, James D. Cooper, Jr., for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Herman L. Sloan, Rebecca A. Keel, Assistant District Attorneys, for appellee.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.