author: Andrews, Presiding Judge.

text:
    A99A0876.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. JACKSON.
    (522 SE2d 716)
   Andrews, Presiding Judge.

Georgia Farm Bureau Mutual Insurance Company (Georgia Farm) appeals from the trial court’s grant of Ellen Jackson’s motion for summary judgment in her suit claiming an accidental death benefit under an automobile insurance policy.

1. In reviewing a grant of summary judgment, this Court conducts a de novo review of the record. Also, in considering the provisions of an insurance policy, the ordinary rules of contract construction govern, and this contractual interpretation is a question of law for the court. OCGA § 13-2-1; Southern Gen. Ins. Co. v. Alford, 234 Ga. App. 615, 616 (507 SE2d 179) (1998).

Ellen Jackson, Georgia Farm’s named insured, had two vehicles, a 1988 Taurus and a 1992 Geo, insured under separate policies. Only the policy on the Geo had an accidental death benefit. This claim arose when Sandra Jackson, the 16-year-old daughter of Ellen Jackson, was killed in an auto collision while driving the 1988 Ford Taurus. Having made a claim under the Geo policy for the accidental death benefit, which was denied by Georgia Farm, Jackson initiated this litigation and was granted summary judgment.

The Geo policy was divided into the following sections: Part A, liability coverage; Part B, medical payments coverage; Part C, uninsured motorists coverage; Part D, damages to automobile; Part F, insured’s duties after accident; and Part G, general provisions. There was no Part E.

The accidental death benefit was contained as a separate endorsement, FB 01 01, following the other Parts and provided, in pertinent part, as follows:

The Company will pay insured’s injury coverage benefits for: . . . (b) “accidental death benefit” incurred with respect to “bodily injury” sustained by an “eligible injured person” caused by an accident. . . . When used in reference to this coverage “accidental death benefit” means death resulting directly and independently of all other causes from “bodily injur/’ caused by accident while “occupying” or being struck by a “motor vehicle.”

(Emphasis supplied.)

“Eligible injured person” is defined as any “insured” (which includes dependent children living at home, as Sandra was) “who sustains ‘bodily injury’ while occupying, or as a result of being struck by: (a) the insured motor vehicle [the Geo under this policy]; or (b) a non-owned motor vehicle.” (Emphasis supplied.)

Part B of the Geo policy, medical payments coverage, provided for payment of medical and funeral services for an insured caused by an accident. This section defined “insured” as, “a. You or any ‘family member’: (1) while ‘occupying’; or (2) as a pedestrian when struck by; a motor vehicle designed for use mainly on public roads . . . b. Any other person while ‘occupying’ ‘your covered auto.’ ” (Emphasis supplied.)

Sandra Jackson was driving north in the Taurus and had proceeded into an intersection when she was struck in the driver’s door by Skelton’s car which was proceeding east. Skelton’s car was not insured by Georgia Farm, and it is Jackson’s contention that the accident was compensable because Sandra Jackson, an “eligible injured person” under the Geo policy, sustained injury by being struck by Skelton’s car, one “non-owned” by the insured.

Georgia Farm contends that the accidental death benefit of the Geo policy would have applied only if Sandra had been occupying the Geo or had been struck by the Geo or a non-owned vehicle while a pedestrian.

“Policies of insurance, being prepared and written by the insurer, are to be construed strictly in favor of the insured and against the insurer. [Cit.]” Sovereign Camp Woodmen of the World v. Heflin, 188 Ga. 234, 235 (2) (3 SE2d 559) (1939). First Financial Ins. Co. v. American Sandblasting Co., 223 Ga. App. 232 (1) (477 SE2d 390) (1996) (physical precedent). Also, in construing the policy, we examine the language used within the four corners of the entire contract. Southeastern Fidelity Ins. Co. v. Fluellen, 128 Ga. App. 877, 879 (198 SE2d 407) (1973).

We agree with Jackson’s contention that this factual situation is similar to that in Ramsden v. Govt. Employees Ins. Co., 123 Ga. App. 163 (179 SE2d 671) (1971). There, Diane Ramsden, daughter of Walter and Elizabeth, sought recovery under an automobile policy issued to her and one issued to her father as a result of an accident while her father was driving her car. Both her mother and father were killed. The question addressed in the decision dealt only with the policy issued to the father which listed as the covered auto his own car, not that of his daughter. The father’s policy provided that recovery of medical and funeral expenses to the insured (the father) would be made if he suffered bodily injury “through being struck by an automobile.”

The insurer argued, as does Georgia Farm here, that such a provision applied only if the insured were a pedestrian. There, as here, this Court concluded that being struck by an automobile while occupying another automobile was sufficient to invoke this coverage. See also Travelers Indem. Co. v. Watson, 111 Ga. App. 98, 104 (140 SE2d 505) (1965). Such a result also comports with the test that it is not what the insurer intended by the words which it used, but what a “reasonable person in the shoes of the insured would understand them to mean” that controls. Ga. Farm &c. Ins. Co. v. Washington, 145 Ga. App. 216, 217 (243 SE2d 639) (1978).

Although not binding on this Court, we find persuasive the rationales of Provau v. State Farm &c. Ins. Co., 772 F2d 817, 820-821 (3) (11th Cir. 1985) and Bates v. United Security Ins. Co., 163 NW2d 390 (Iowa 1968), both of which involved interpretation of “struck by an automobile” in insurance policies in non-pedestrian situations and concluded that these instances were covered.

We are also persuaded to this conclusion by the fact that, in the medical payments coverage section, Georgia Farm clearly and unequivocally inserted language restricting coverage to the “insured” while occupying an automobile, either covered or non-covered by the policy, or as a pedestrian when hit by any automobile. That provision also covered any person while occupying the covered automobile. Had Georgia Farm meant for the accidental death coverage to include only a situation where an “eligible injured person” was struck by a non-owned automobile while a pedestrian, and to exclude a situation where the “eligible injured person” was occupying an automobile not covered by the policy at issue when struck by a non-owned automobile, it should have so specified. See Ga. Farm &c. Ins. Co. v. Coleman, 121 Ga. App. 510, 511 (174 SE2d 351) (1970).

Pa. Nat. &c. Ins. Co. v. Burnetti, 259 Ga. 794 (387 SE2d 570) (1990), relied upon by Georgia Farm for its contention that “struck by” does not include the present situation because the person was not a pedestrian is distinguishable because it involved statutory interpretation of Georgia’s former no-fault law, not the wording of an insurance policy drafted by the insurer, and there was a countervailing public policy consideration not present here. Also, factually the situation was distinguishable. There, the non-insured person was injured when, in an effort to get out of the way of the insured automobile, he jumped out of the way and struck a wall. As the Supreme Court found, “[i]n this case, it was Burnetti who was the ‘striking’ object, albeit, as he claims, as a matter of dire and imminent necessity.” Id. at 795 (2), fn. 1.

Nor do we conclude, as argued by Georgia Farm, that the Supreme Court meant to implicitly overrule Ramsden in Pa. Nat. &c. Ins. Co., supra. This conclusion is supported by Atlanta Cas. Co. v. Tucker, 204 Ga. App. 584 (420 SE2d 344) (1992), decided two years after Pa. Nat. &c. Ins. Co., supra, in which, under the no-fault statute, this Court concluded that Williams, insured by Atlanta Casualty, was liable for no-fault benefits to pedestrians Tucker and Watson when her car hit Taylor’s car which then struck the pedestrians even though Williams’ car did not come in direct contact with them. It was concluded that both the propelling car and the propelled car “struck” the pedestrians for purposes of the no-fault statute.

The grant of summary judgment on the issue of coverage was correct.

2. Georgia Farm, in its second enumeration, also appeals from the trial court’s imposition of a penalty pursuant to OCGA § 33-4-6. That section provides for imposition of a 25 percent penalty if a loss covered by a policy is not paid within 60 days of demand and a “finding has been made that such refusal was in bad faith.”

Here, there was no dispute of fact regarding Georgia Farm’s refusal to pay. A demand was made by Jackson under the Geo policy on March 18, 1996. By letter of April 1, 1996, Georgia Farm responded that payment would not be made because “the vehicle Sandra was driving did not afford accidental death benefits.”

By letter of April 17, 1996, Georgia Farm advised Ms. Jackson in response to her letter of April 8, that she could “collect only benefits stated in the declaration of your policy for the auto you [sic] were occupying at the time of the accident.”

Following another demand of January 13, 1997, Georgia Farm, through its litigation manager, advised that there were no accidental death benefits on the Taurus and that “Accidental Death Benefits coverage is not transferable from car to car.” Further, the letter advised that the intent of this coverage “was not [to] have it stack-able or transferable.”

Finally, after Georgia Farm’s counsel entered the case, by letter from him on May 16, 1997, Jackson’s counsel was advised that “[s]ince Sandra Jackson was not occupying the insured motor vehicle [the Geo] and since the policy clearly implies that being struck by a non-owned vehicle is with reference to pedestrians, there is no coverage. . . .” (Emphasis in original and supplied.)

Georgia Farm is correct that, where there is a “doubtful question of law, the insurer is not liable for bad faith penalties.” Fed. Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 769 (4) (417 SE2d 671) (1992). Pretermitting the issue of whether there even was a doubtful question of law considering our conclusion regarding the impact of Pa. Nat. &c. Ins. Co., supra, on this question, the position as to which Georgia Farm claimed the “doubtful question” was not even taken by the company until 14 months after the initial claim was made and then was based on an “implication” gathered from the policy, not on specific language or doubtful facts. See Cincinnati Ins. Co. v. Kastner, 233 Ga. App. 594, 596 (1) (504 SE2d 496) (1998); Fireman’s Fund Ins. Co. v. Dean, 212 Ga. App. 262, 266 (2) (441 SE2d 436) (1994); Fed. Ins. Co., supra at 769.

Decided September 22, 1999.

Groover & Childs, Denmark Groover, Jr., for appellant.

Sullivan & Right, Malcolm R. Sullivan, for appellee.

There was no error in the award of the bad faith penalty.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

       After the trial court concluded that Jackson was entitled to partial summary judgment on her claim under the accidental death benefit portion of the policy, Georgia Farm requested that the trial court enter a total summary judgment so the entire case could be appealed. Counsel for all parties then stipulated the amount that would be due if the court found bad faith, which the court did.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A99A1189.
    JOHNSON v. THE STATE.
    (522 SE2d 722)
   Miller, Judge.

A jury found Charles Johnson guilty of burglary. Johnson’s motion for new trial was denied, and on appeal he enumerates as error the general grounds. We affirm.

OCGA § 16-7-1 (a) provides that a person commits burglary when, without authority and with intent to commit a felony therein, he “enters . . . any building ... or any room or any part thereof.” The defendant does not need to actually complete the theft to commit the crime of burglary; the intent to commit a theft or felony is sufficient. Igle v. State, 223 Ga. App. 498, 500 (3) (478 SE2d 622) (1996).

The appropriate standard for reviewing the sufficiency of the evidence in a criminal case is whether, construing the evidence in favor of the State, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The appellate court reviews the sufficiency of the evidence, not its weight or credibility. On appeal the evidence must be viewed in the light most favorable to the verdict, as the appellant no longer enjoys a presumption of innocence. London v. State, 235 Ga. App. 30, 31 (508 SE2d 247) (1998).

Construed in favor of the verdict, the evidence showed that on August 22, 1996, security guard Rodney Hill observed a blue car at the Platinum Towers loading dock after hours. Hill copied the tag number and waited for the driver to return. Hill observed a man exit the service elevator of the building carrying a large trash can. When Hill questioned the man about the contents of the trash can, a struggle ensued wherein the man dropped the trash can and fled the scene in the blue car. Hill returned to the loading dock and found computer equipment in the trash can. In a photo lineup and at the trial, Hill identified Johnson as the man who dropped the trash can and drove away in the blue car.

Decided September 22, 1999.

Michael A. Zoffman, for appellant.

Patrick H. Head, District Attorney, Debra H. Bernes, Thomas A. Cole, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Upon investigation, Hill discovered that the door to Banyan Systems, a tenant in the building, was ajar. A Banyan Systems employee testified that the computer equipment was stolen from her office at Banyan Systems. The tag number obtained by Hill was registered to a vehicle that belonged to Loretta Allen of Stone Mountain. Allen testified that she loaned her car to Johnson while she was at work. Detective Underwood testified further that Johnson was apprehended at Allen’s residence.

The evidence was sufficient to sustain the verdict. The court did not err in denying Johnson’s motion for a new trial.

Judgment affirmed.

Smith and Eldridge, JJ, concur.


text:
    A99A1207.
    LIVELY v. McDANIEL.
    (522 SE2d 711)
   Miller, Judge.

Randy McDaniel left the employ of American General Life & Accident Insurance Company on May 27, 1994. On October 23, 1995, he sped his former manager, Alton Lively, for slander, intentional infliction of emotional distress, and tortious interference with business relations. He alleged that after his departure, Lively had misrepresented facts to three individuals concerning McDaniel’s actions as an insurance agent. Lively moved for summary judgment or partial summary judgment, arguing that the statute of limitation had run on the slander claims and that the evidence did not show the elements needed to sustain the various causes of action. His interlocutory application having been granted, Lively appeals the denial of his motion.

Construed in favor of McDaniel, the evidence shows that Lively telephoned Nancy Cole on three occasions, once in September or October 1994 and twice some months later. He told Cole that (i) McDaniel had left American General on bad terms and taken valuable documents with him, (ii) McDaniel was soliciting American General’s clients, which he was forbidden to do, and (iii) any problems she was experiencing with her American General policy were attributable to McDaniel.

During the summer of 1994, Lively told James Browning that McDaniel had made the worst decision of his life in leaving the company, and that the insurance policies of some widowed and elderly clients previously serviced by McDaniel would probably lapse because McDaniel had left the company no records of them.

During that same summer, Lively told Reverend William Daugherty that McDaniel had been talking to a lot of people who would be “messed up and hurt” and who would leave the Reverend’s congregation as a result. Daugherty interpreted the comments to mean McDaniel had been lying to people about American General.

1. Slander. Contending the remarks were false and calculated to injure him in his profession, McDaniel sued under OCGA § 51-5-4 (a) (3) for slander per se, for which no special damages need be shown. See OCGA § 51-5-4 (b); Baskin v. Rogers, 229 Ga. App. 250, 252 (2) (493 SE2d 728) (1997). Lively asserts that the statute of limitation bars the claims and that the statements were either true or unactionable opinion.

(a) Statute of Limitation. Under OCGA § 9-3-33, a party has one year to bring a suit for slander, which begins to run once the slanderous statement is uttered. Jacobs v. Shaw, 219 Ga. App. 425, 427 (2) (465 SE2d 460) (1995). McDaniel concedes the statements to Reverend Daugherty fall outside the one-year period, and the undisputed evidence reflects that the statements to Browning were made no later than eight weeks after McDaniel’s termination date of May 27, 1994 (i.e., by the last week of July), which is more than a year prior to the filing of the lawsuit in October 1995. Accordingly, the court erred in denying partial summary judgment as to those portions of the slander claim resting on the statements to Daugherty and Browning.

But the evidence is disputed whether the statements to Cole occurred in the summer of 1994 or at some time after October 1994. As to the statute of limitation defense on this portion of the slander claim, the court properly denied summary judgment.

(b) Opinion and Truth. Lively argues that the statements to Cole were either true or merely opinion and thus unactionable. See Elder v. Cardoso, 205 Ga. App. 144 (1) (421 SE2d 753) (1992). But Eidson v. Berry, 202 Ga. App. 587-588 (415 SE2d 16) (1992), held:

There is no wholesale defamation exemption for anything that might be labeled opinion. To say otherwise would ignore the fact that expressions of opinion may often imply an assertion of objective fact. . . . The pivotal questions are whether [Lively’s] statements can reasonably be interpreted as stating or implying defamatory facts about [McDaniel] and, if so, whether the defamatory assertions are capable of being proved false.

(Citations and punctuation omitted.); see Harcrow v. Struhar, 236 Ga. App. 403, 404 (511 SE2d 545) (1999).

Regardless of how one may characterize the other statements to Cole, the statement that McDaniel had taken valuable documents, which led to difficulties with Cole’s policy, implied that McDaniel had stolen and retained important documents belonging to the company, which is provably false. The evidence showed McDaniel returned any company documents in his possession immediately after terminating his employment, and thus such could not be connected to Lively’s statements or to any difficulties with the Cole policy some months later. The statements are actionable.

2. Intentional Infliction of Emotional Distress. None of the statements to the three individuals suffices to sustain a cause of action for intentional infliction of emotional distress. First, “even malicious, wilful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff.” Ryckeley v. Callaway, 261 Ga. 828, 829 (412 SE2d 826) (1992). Defamatory remarks made to others or to the public in general are classic examples of conduct that, though harmful to the plaintiff, was directed toward the hearer of the statements, not to the plaintiff, and thus is not actionable as intentional infliction of emotional distress. See, e.g., Munoz v. American Lawyer Media, L.P., 236 Ga. App. 462, 465 (1) (b) (512 SE2d 347) (1999) (article directed to newspaper’s public readership); Willis v. United Family Life Ins., 226 Ga. App. 661, 666 (3) (487 SE2d 376) (1997) (letter sent to third party); Tucker v. News Publishing Co., 197 Ga. App. 85, 87 (2) (397 SE2d 499) (1990) (news articles directed to public); Carter v. Willowrun Condo. Assn., 179 Ga. App. 257, 260 (5) (345 SE2d 924) (1986) (letter sent to plaintiff’s lessor).

Moreover, even if directed toward the plaintiff, the conduct must be extreme and outrageous (i.e., atrocious and utterly intolerable). United Parcel Svc. v. Moore, 238 Ga. App. 376, 377 (519 SE2d 15) (1999). Defamatory or derogatory remarks regarding one’s employment generally do not rise to this level. Willis, supra, 226 Ga. App. at 666 (3); Biven Software v. Newman, 222 Ga. App. 112, 113-114 (1) (473 SE2d 527) (1996). We hold the statements here similarly fail to meet the threshold of outrageousness.

The court erred in denying summary judgment on the intentional infliction of emotional distress count.

3. Tortious Interference with Business Relations. The essential features of a cause of action for tortious interference with business relations are that the defendant, acting improperly, without privilege, and with the malicious intent to injure plaintiff, induces a third party not to enter into or to continue a business relationship with plaintiff, which causes plaintiff financial injury. Jenkins v. Gen. Hosps. of Humana, 196 Ga. App. 150, 151 (395 SE2d 396) (1990). The evidence is undisputed that Lively’s alleged conduct did not induce anyone to refuse or to discontinue a business relationship with McDaniel.

Decided September 22, 1999.

Paul R. Vancil, for appellant.

Swanson & Cherry, Mark R. Swanson, Diane Cherry, for appellee.

Moreover, just as in Jenkins, McDaniel is unable to identify a single client that he has lost or failed to acquire due to the actions of Lively, nor is he able to show any other financial loss. 196 Ga. App. at 151. His affidavit stating that he has spent some six hours with Cole, Daugherty, and Browning to reestablish trust does not demonstrate financial loss.

The court erred in denying summary judgment on the tortious interference count.

Judgment affirmed in pari and reversed in part and case remanded.

McMurray, P. J, and Ruffin, J., concur.


author: Ellington, Judge.

text:
    A99A1476.
    THOMAS et al. v. WILEY.
    (522 SE2d 714)
   Ellington, Judge.

Sylvester Wiley sued Freda Thomas and Bob Maddox Chrysler Plymouth, Inc. (“Bob Maddox”) to recover damages for injuries sustained in a collision between a motorcycle operated by Wiley and an automobile driven by Thomas.

Defendants asserted defenses of contributory negligence, avoidance of consequences (an aspect of contributory negligence), and assumption of risk.

Evidence was presented showing the fault of all parties. The intersection at which the collision occurred is not controlled by stop or yield signs in any direction, and Bob Maddox had parked cars along the roadway obstructing both drivers’ views. Thomas failed to stop her car even though she was exiting the parking lot of the dealership onto a roadway. However, she had been to the dealership only once before and had not observed any traffic at this intersection. Wiley, on the other hand, worked at an adjacent dealership and was aware of the hazards surrounding the intersection. He knew that vehicles exiting the dealership did not stop, and although had not seen any collisions, he had observed a number of “near misses.” Although Wiley testified that he was proceeding along the roadway at a safe rate of speed and slowed down before the collision, a Bob Maddox employee who witnessed the collision testified otherwise. For the most part, evidence of Wiley’s damages was either uncontested or not preserved in the record.

At trial, the jury was given a special verdict form containing four questions. The first question required the jury to determine if plaintiff was in some way negligent and contributed to his own damages and, if so, to apportion the negligence by assigning a percentage to it. The second and third questions required the jury to make the same findings as to each defendant. The fourth question required the jury to find in what amount the plaintiff was damaged.

The jury responded to the first three questions on the special verdict form by finding that each party was chargeable with equal negligence (i.e., 33V3 percent) contributing to plaintiff’s damages. But, in response to the last question, the jury found that plaintiff sustained no damages.

Before entry of judgment on the verdict, Wiley moved for a new trial. Several days later, the trial court, without entering judgment on the verdict, ordered a new trial on the ground that the verdict was “contrary to law.” Thomas and Bob Maddox moved for reconsideration, complaining, among other things, that their right to respond to the motion for new trial under Uniform State Court Rule 6.2 had been denied. After giving the defense an opportunity to be heard, the court entered an order denying the motion for reconsideration. We granted Thomas’ and Bob Maddox’s application for interlocutory appeal of that order.

1. Thomas and Bob Maddox first contend that the trial court erred in granting Wiley’s motion for new trial before entering judgment on the verdict and without giving them 30 days to respond to the motion pursuant to Uniform State Court Rule 6.2.

It is true that a motion for new trial filed before entry of the judgment is premature, OCGA § 5-5-40 (a), as is an order granting a new trial. See OCGA § 5-5-40 (h). But defendants did not seek to set aside the order on that ground at the trial level. They merely sought an opportunity to be heard. Therefore, they have waived their challenge to the timeliness of the order. Since their right to be heard was not abridged, this enumeration is without merit.

2. Thomas and Bob Maddox contend that the court erred in denying their motion for directed verdict as Wiley assumed the risk of his injuries.

This contention is based primarily on the assertion that Wiley sped through the intersection without slowing down. Defendants were not entitled to a directed verdict, since there was a conflict in the evidence on this issue. This is not one of those plain, palpable, and undisputed cases in which it can be said that, as a matter of law, Wiley assumed the risk of his injuries and damages. See Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 479 (3) (491 SE2d 909) (1997). The question was one for the jury.

Decided September 22, 1999.

Ellis, Painter, Ratterree & Bart, Ryburn C. Ratterree, Tracy O’Connell, Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, for appellants.

Ronald C. Berry, James K. Lange, for appellee.

3. Thomas and Bob Maddox next complain of the action of the trial court in ordering a new trial.

The trial court in this case ordered a new trial based on the general grounds. This Court will not speculate upon the grounds the trial court might have granted a first motion for a new trial. Holton v. Jones, 174 Ga. App. 654, 655 (331 SE2d 26) (1985). “[W]e observe that in this state the trial judge is vested with the strongest of discretions to review the case and to set the verdict aside if he is not satisfied with it.” Id. As required by OCGA § 5-5-50, the first grant of a new trial is not to be reversed by an appellate court unless the verdict set aside by the trial court was absolutely demanded. Gledhill v. Brown, 44 Ga. App. 670, 672 (162 SE 824) (1932). The record presented to this Court does not demand such a reversal.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


author: Pope, Presiding Judge.

text:
    A99A1529.
    DONG v. SHEPEARD COMMUNITY BLOOD CENTER et al.
    (522 SE2d 720)
   Pope, Presiding Judge.

Ellen Dong sued her employer, Walter Shepeard Community Blood Center, after she was terminated from her job. Dong also sued Linda Sigg, the technical director at the Blood Center, who was Dong’s immediate supervisor. Dong’s lawsuit asserted claims for tortious interference with her employment relationship and for the negligent hiring and retention of Sigg. The Blood Center and Sigg filed a joint motion for summary judgment, which the superior court granted, and Dong appeals. Based on the employment-at-will doctrine and because Dong failed to set forth a necessary element of her claim for tortious interference with her employment, we affirm.

The record establishes the following undisputed facts: in 1978, Dong started work at the Blood Center. In 1982, she was promoted to the position of laboratory technician. Dong never had a written contract regarding her employment with the Blood Center, nor did she receive any document stating or guaranteeing that she would be an employee of the Blood Center for any certain duration. Dong understood that she could quit her job at any time and understood that the Blood Center could terminate her employment at any time. In fact, at her deposition, Dong recalled reviewing the employee handbook which informed her that she was an employee at will and that she could be discharged from her employment with or without cause at any time. In 1995, Linda Sigg was hired as a technical director and was Dong’s immediate supervisor. One of Bigg’s job responsibilities was to evaluate the job performances of the medical technologists, including Dong. Nevertheless, Dr. Volker Dube, the Chief Executive Officer of the Blood Center, was the individual with the ultimate authority regarding Dong’s employment. As Dong concedes, Sigg made all of the recommendations to Dube regarding Dong’s discharge in the course of Bigg’s employment for the Blood Center. In other words, there is no dispute that, at all relevant times, Sigg was acting within the scope of her job when she made the recommendations about Dong.

Dube placed Dong on employment probation. In February 1997, when the probation proved unsuccessful, Dube terminated Dpng from her job. Dube wrote Dong a termination letter in which he referred to her insubordination, unsatisfactory work habits, and unsatisfactory technical abilities.

1. In her first enumeration, Dong argues that the superior court erred in granting summary judgment because there are factual issues regarding whether the Blood Center negligently hired and retained Linda Sigg. Citing OCGA § 34-7-20, Dong claims that Sigg had been demoted in a previous job for her inability to effectively supervise and work with employees, and that because of Bigg’s prior employment history, the Blood Center’s hiring of Sigg was negligent.

The court correctly granted summary judgment on Dong’s negligent hiring and retention claim because she cannot circumvent the employment-at-will doctrine by claiming that this is a negligent hiring/retention case. The undisputed evidence established that Dong’s employment was for an indefinite period and was terminable at the will of either party to the employment relationship. See OCGA § 34-7-1. “An employment contract containing no definite term of employment is terminable at the will of either party, and will not support a cause of action against the employer for wrongful termination.” (Citations omitted.) Burton v. John Thurmond Constr. Co., 201 Ga. App. 10 (410 SE2d 137) (1991).

Decided September 22, 1999

Samuel W. Cruse, for appellant.

Kilpatrick Stockton, Robert P. Sentell III, Ted H. Clarkston, for appellees.

Like Dong, in Rhodes v. Levitz Furniture Co., 136 Ga. App. 514, 516 (1) (221 SE2d 687) (1975), the plaintiff tried to circumvent the employment-at-will doctrine and claimed that his claims were for negligent hiring. In that case, this court affirmed the grant of summary judgment, concluding that the employment-at-will doctrine foreclosed further inquiry into the plaintiff’s negligent hiring claim. Here, as in Rhodes, summary judgment was proper. See generally Jellico v. Effingham County, 221 Ga. App. 252 (471 SE2d 36) (1996). Finally, Dong’s reliance on OCGA § 34-7-20, which provides that an employer should exercise ordinary care in the selection of employees and should not retain them after knowledge of “incompetency,” is misplaced given the instant facts.

2. Secondly, Dong claims that the court erred in granting summary judgment because Sigg tortiously and maliciously interfered with her business relationship with her employer. But a necessary element for a tortious interference with business relations claim is that the alleged tortfeasor be a third party or stranger to the employment relationship. Brewer v. Schacht, 235 Ga. App. 313, 317-318 (4) (b) (509 SE2d 378) (1998). Here, Sigg acted within her authority as an employee of the Blood Center in recommending that Dong be discharged. Accordingly, Sigg was not a stranger to Dong’s employment relationship; Dong failed to maintain a prima facie case; and the court properly granted summary judgment. See Lane v. K-Mart Corp., 190 Ga. App. 113, 114 (2) (378 SE2d 136) (1989).

Judgment affirmed.

Smith and Eldridge, JJ, concur.

       Dong dismissed a previously filed lawsuit. She then refiled this complaint, alleging employment discrimination, tortious interference with her employment relationship, and negligent hiring and retention. Due to the employment discrimination claims, the defendants moved to remove the case to federal court. Dong then dismissed with prejudice all federal claims and amended her complaint. Accordingly, the case was remanded to the Richmond County Superior Court.


author: McMurray, Presiding Judge.

text:
    A99A2157.
    HOWDEN v. THE STATE.
    (522 SE2d 279)
   McMurray, Presiding Judge.

Defendant Dwight Edward Howden was convicted, after a bench trial, of driving under the influence of alcohol. Defendant filed this appeal, challenging the trial court’s order denying his motion to suppress. This Court must construe the facts, if possible, so as to uphold the trial court’s findings and judgment. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646).

On May 4, 1998, defendant stayed late at his place of business and consumed alcohol as he worked on an intricate engineering proposal. At about 10:15 that evening, defendant decided to call it a day. He triple-locked the windowless building’s steel door on his way out, turned and observed a patrol car parked across the street. Because this was not unusual, defendant paid the officer little attention. He got in his nearby van, cranked the engine and headed home. But defendant did not get far. The patrol car’s blue lights signaled for defendant to stop as he turned onto a nearby street. Defendant complied, but he could not remove the alcoholic odor that hung on his breath. Officer Scott Martin of the Dalton Police Department arrested defendant for suspected drunk driving.

Officer Martin testified that he stopped defendant because it was late at night and defendant’s warehouse is located in an area known for criminal activity. Officer Martin explained that his suspicions were first aroused when he arrived on the scene because he observed defendant’s van “backed into one of the [closed warehouse’s] doors.” Officer Martin testified that he decided to make an investigative stop because defendant’s van exited the deserted parking lot just a couple of minutes after his patrol car arrived on the scene. Held:

A temporary investigatory stop under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889), involving restraint must be supported by articulable suspicion that the suspect was, or was about to be, engaged in criminal activity. Exposito v. State, 191 Ga. App. 761, 762 (1) (382 SE2d 412). Officer Martin triggered such an encounter in the case sub judice when he stopped defendant’s van. See State v. Corbett, 205 Ga. App. 554 (423 SE2d 38). The question then, is whether Officer Martin articulated objective facts at the motion to suppress hearing, which justified his suspicion that criminal activity was afoot at defendant’s warehouse. We find that he did not.

An investigative stop must be based upon an objective reflection of circumstances which would authorize a reasonable suspicion that the person stopped is, or is about to be, engaged in criminal conduct. An officer must therefore have, as an agent of the state, a founded suspicion — a particularized factual basis from which the court can determine that the detention was not arbitrary or harassing. Painter v. State, 227 Ga. App. 875, 877 (490 SE2d 544). In the case sub judice, Officer Martin did not articulate any particular fact indicating that the occupant of defendant’s van was or was about to be engaged in criminal activity. He did not explain that crimes had been committed in the area under similar circumstances, nor did he testify that he observed unusual loading activity into defendant’s van. Officer Martin’s testimony proves only that defendant’s warehouse is in an area known for criminal activity and that a van was leaving this warehouse late at night. These circumstances do not justify an investigative detention under Terry v. Ohio, 392 U. S. 1, supra. And in so holding, we affirm the sort of totality of the circumstances analysis found in Oboh v. State, 217 Ga. App. 553 (458 SE2d 177), and thus find the case sub judice distinguishable from this Court’s holding in Anderson v. State, 123 Ga. App. 57, 60 (2) (179 SE2d 286). Further, we find the State’s reliance on Dillard v. State, 177 Ga. App. 805, 806 (1) (341 SE2d 310), misplaced because, unlike the case sub judice, the investigative stop in Dillard was authorized by evidence showing that the suspect vehicle was seen parked in the driveway of a house where several burglaries had occurred, and a passenger in that vehicle was observed acting in a suspicious manner when a police cruiser arrived at the scene.

Decided September 9, 1999

Reconsideration dismissed September 23, 1999.

Kinney, Kemp, Sponcler, Joiner & Tharpe, James T. Ward, for appellant.

Kermit N. McManus, District Attorney, Matthew A. Rankin, Assistant District Attorney, for appellee.

The trial court erred in denying defendant’s motion to suppress.

Judgment reversed.

Johnson, C. J., and Phipps, J., concur.


text:
    A99A2070.
    HOOKER v. THE STATE.
    (522 SE2d 723)
   McMurray, Presiding Judge.

Defendant Hooker appeals from the Superior Court of Emanuel County’s order denying his plea of former jeopardy. Pointing to OCGA § 16-1-7 (b), he contends that his misdemeanor convictions in the State Court of Emanuel County bar any “successive” prosecution in the superior court of the misdemeanors and of two aggravated assault charges (OCGA § 16-5-21) not tried in the state court. Held:

The evidence adduced at the hearing upon defendant’s plea of former jeopardy shows that State Trooper Wayne Hutchinson was called to investigate an automobile accident which occurred in the early morning hours of Saturday, November 7, 1998, on U. S. Highway 1 in Emanuel County. As a result of his investigation, Trooper Hutchinson issued four traffic citations charging defendant with the misdemeanor counts tried in state court and two counts of aggravated assault by ramming a truck occupied by driver Fred Stivender II and his nine-year-old son. On their face, these traffic citations indicate that they were issued contemporaneously at 5:30 a.m., November 7, 1998, and relate to crimes arising from the same accident.

Shortly after he issued the traffic citations, Trooper Hutchinson prepared an incident report on the accident and submitted it to the district attorney’s office, attaching the traffic tickets, to obtain an arrest warrant as to the aggravated assaults. Such warrant was issued on November 10, 1998.

Sheriff J. Tyson Stephens testified that he delivered the incident report and the traffic citations to the district attorney and advised him that a felony charge was among the tickets. In further testimony, Sheriff Stephens indicated that he spoke to the defendant in jail the morning after the accident thinking he was from out of town. In “a compassionate measure” in order to minimize the time the defendant would be without his driver’s license and help save his job, Sheriff Stephens advised him to complete an alcohol treatment program quickly and plead guilty in state court to the misdemeanor charges. Additionally, Sheriff Stephens testified that in furtherance of his efforts to help defendant, he asked a secretary in the district attorney’s office to send the misdemeanor citations against defendant to state court. His testimony also indicated that the secretary did so without conferring with the district attorney or any of his assistants.

On December 12, 1998, defendant, pro se, pleaded guilty in the State Court of Emanuel County to each of the misdemeanors. The court accepted such pleas and imposed sentence thereon. Sheriff Stephens did not inform the state court of the pendency of the felony charges in superior court because he believed that the district attorney would prosecute them separately.

On January 29, 1999, the grand jury for Emanuel County indicted defendant for the misdemeanors to which he had pleaded guilty in state court and two counts of aggravated assault, one as to the driver of the vehicle defendant is alleged to have rammed, Stivender, and the other as to his son. On February 19, 1999, after waiving formal arraignment on the indictment, defendant pleaded not guilty and, through newly retained counsel, filed his plea of former jeopardy. At its April 9, 1999 hearing thereon, the Superior Court of Emanuel County and the parties agreed that the misdemeanors to which defendant’s guilty pleas had been accepted were barred from further prosecution by former jeopardy. Through apparent administrative error, however, the superior court’s order in the record denied defendant’s plea of former jeopardy as to all the charges.

In State v. McCrary, 253 Ga. 747, 748 (325 SE2d 151), the Supreme Court of Georgia determined that the acceptance of a defendant’s misdemeanor plea constitutes a bar to his prosecution on felony charges arising from the same transaction where an assistant district attorney having jurisdiction over all the offenses had made an election, whether intentionally or by default, to dispose of the charges separately rather than requiring all the offenses to be bound over to superior court. This was in consonance with McCannon v. State, 252 Ga. 515 (315 SE2d 413), in which the Supreme Court of Georgia held that “a successive prosecution is barred when the conduct of an accused establishes more than one crime and they are not prosecuted in accordance with OCGA § 16-1-7 (b).” State v. McCrary, 253 Ga. at 748, supra.

If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except as provided in subsection (c) of this Code section.

OCGA § 16-1-7 (b). In the instant circumstances, it is undisputed that defendant’s crimes arose from the same conduct and that all were known to the district attorney. While it thus was within the district attorney’s power to seek a single prosecution of the charges, such a prosecution was not brought in the case sub judice because of default in the State — that is, the apparently well-intended but misguided acts of commission and omission by Sheriff Stephens and the secretary who assisted him in the district attorney’s office. Moreover, in reaching the foregoing conclusion, we are not unmindful of Powe v. State, 181 Ga. App. 429, 431 (352 SE2d 783), in which this Court held it is not reasonable to impute the knowledge of one prosecutor to other prosecutors, “where two entirely separate prosecuting offices are involved and where defense counsel has deliberately set out to exploit the situation.” (Emphasis supplied.) Unlike Powe, however, in this case defendant’s guilty pleas were accepted, and inasmuch as defendant was unrepresented in state court, there was no attempt by any trial counsel to manipulate the system. See State v. McCrary, 253 Ga. 747, supra (“[0]ne who misuses the system, through no fault of the state, should not be able to successfully raise a plea in bar which arises because of his manipulation. . . .”); see also Collins v. State, 177 Ga. App. 758 (1) (341 SE2d 288).

Decided September 23, 1999.

Wilmer L. Salter, Jr., Jason A. Craig, for appellant.

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellee.

Therefore, we conclude that the prosecution in the state court against the defendant now prevents a successive prosecution in the superior court of the misdemeanor and felony charges against him. The order of the superior court denying the plea in bar is reversed, and the case is remanded for action, as appropriate, consistent with this opinion.

Judgment reversed and case remanded.

Johnson, C. J., and Phipps, J., concur.

       Defendant was convicted of failure to stop at the scene of an accident (OCGA § 40-6-270), driving under the influence of alcohol (OCGA § 40-6-391), and following too closely (OCGA § 40-6-49).

       An assistant district attorney advised Trooper Hutchinson to seek issuance of a single arrest warrant on both aggravated assaults.


text:
    A99A2358.
    HAWKINS v. THE STATE.
    (522 SE2d 725)
   McMurray, Presiding Judge.

Defendant was tried before the Probate Court of Butts County and convicted of driving under the influence of alcohol. He appealed to the Superior Court of Butts County which affirmed the probate court.

At trial, the arresting officer testified that he stopped defendant’s pickup truck at about 2:00 in the morning after he observed this vehicle swerve in the highway, run off the road and nearly collide with a “tractor/trailer” truck. This officer testified that, during the traffic stop, he observed beer bottles and a half-empty bottle of an alcoholic beverage in the cab of defendant’s truck. The officer also testified that defendant was unsteady on his feet; that defendant’s eyes were bloodshot, and that an alcoholic odor emanated from defendant’s mouth. The officer testified that defendant failed two field sobriety tests, and that defendant tested “positive” when he blew “in an Alcosensor.” The officer further testified that defendant admitted during the traffic stop that he had consumed alcohol a couple of hours before driving. Held:

1. The arresting officer’s testimony authorized the probate court’s finding that defendant is guilty, beyond a reasonable doubt, of driving under the influence of alcohol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided September 23, 1999.

Virgil L. Brown & Associates, Bentley C. Adams III, for appellant.

Richard G. Milam, District Attorney, James L. Moss, Jr., Assistant District Attorney, for appellee.

2. Over defense counsel’s objection, the probate court erroneously allowed testimony of the alco-sensor results without first requiring the foundation described in Aman v. State, 223 Ga. App. 309, 310 (1) (477 SE2d 431). But the totality of the evidence in the case sub judice renders it highly probable that this did not affect the probate court’s findings. The error is therefore not reversible. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869); Knapp v. State, 229 Ga. App. 175, 179 (5) (493 SE2d 583).

3. The arresting officer did not advise defendant of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). Defendant thus contends the probate court erred in admitting evidence of his roadside admission that he had consumed alcohol a couple of hours before driving and evidence of the results of his field sobriety tests. Because this evidence was adduced during the arresting officer’s temporary roadside investigation and before defendant was restrained, arrested or otherwise placed in police custody, the probate court did not err in allowing evidence of defendant’s admission that he had consumed alcohol a couple of hours before driving and the results of defendant’s field sobriety tests. Trudewind v. State, 224 Ga. App. 223 (1) (480 SE2d 211).

4. The Superior Court of Butts County did not err in affirming the probate court.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


author: Phipps, Judge.

text:
    A99A1460.
    MAURER v. THE STATE.
    (525 SE2d 104)
   Phipps, Judge.

After a bench trial, Maurer was found guilty of DUI with an unlawful alcohol concentration and to the extent that it was less safe to drive, as well as following too closely. He appeals his convictions. Among other things, we are asked to determine whether there was probable cause for Maurer’s DUI arrest and justification for State-administered breath tests.

Fulton County Police Officer Inman was dispatched to a multivehicle intersection collision. He ascertained that Maurer had been operating a vehicle that had rear-ended a stationary vehicle, propelling it into another. Maurer’s vehicle sustained extensive damage. While questioning Maurer, the officer detected a strong odor of alcoholic beverage about his person and observed that Maurer had bloodshot eyes, a flushed face, slurred speech, and an unsteady walk.

Because of his observations, Inman asked Maurer to submit to a series of field sobriety evaluations. Testimony given by Inman showed that Maurer performed these evaluations in an erratic manner, as by transposing letters during his recitation of the alphabet. Inman thereupon arrested Maurer for DUI, gave him implied consent warnings, and obtained his consent to the performance of a State-administered chemical test of his breath. The results of sequential tests administered with an Intoxilyzer 5000 machine showed an alcohol concentration of .221 grams and .227 grams.

1. Maurer first contends the court erred in ruling that the prosecution was not required to comply with his notice to produce documents relating to the Intoxilyzer (e.g., log sheets showing the results of tests performed on other subjects, service and operation manuals, inspection reports, and service and repair records).

Notices to produce under [OCGA § 24-10-26] can be used in a criminal case “to compel production of books, writing or other documents or tangible things in the possession, custody or control” of the opposite party, the State ([prosecuting] attorney and investigating officers,) for use at trial, or at a pretrial evidentiary hearing, where such books, etc., would be admissible and are needed for use as evidence on behalf of the defendant. [Cit.]

(Footnotes omitted.) Wilson v. State, 246 Ga. 62, 64 (1) (268 SE2d 895) (1980).

Materials such as those requested are not reasonably expected to be found in the possession, custody, or control of the prosecutor. See Fletcher v. State, 157 Ga. App. 707, 708 (3) (278 SE2d 444) (1981). At trial, the prosecuting attorney stated without contradiction that the requested documents were not in the prosecution’s possession. The State was under no duty to produce these documents.

2. Maurer next charges the court with error in denying his motion to suppress. Maurer sought to suppress the results of the breath tests due to a misreading of the implied consent warning.

OCGA § 40-5-67.1 (b) (2) required Inman to inform Maurer that his driver’s license might be suspended if he submitted to testing and the results indicated an alcohol concentration of .10 grams or more. When Inman read the implied consent warning at trial, he initially testified that he informed Maurer that his driver’s license was subject to suspension if his alcohol concentration was .01 grams or more. But Inman later testified that he actually informed Maurer that the legal limit is .10 grams. In giving the later testimony, Inman attributed his initial testimony to a slip of the tongue caused by rapid speech.

Whether Inman gave the correct or incorrect warning was a question of fact which the court was authorized to resolve in the State’s favor. Moreover, the amended version of OCGA § 40-5-67.1 (b) states that the implied consent notice “ ‘need not be read exactly so long as the substance of the notice remains unchanged.’ [Cit.]” Gentry v. State, 236 Ga. App. 820, 824 (4) (513 SE2d 528) (1999). Even if Inman had read the warning incorrectly, he would have done nothing more than understate the legal limit of alcohol concentration (i.e., .01 rather than .10 grams). An understatement of the legal limit would naturally induce the person to whom the warning was given to withdraw his consent to testing whereas he otherwise might not. Conversely, the person might be led to submit to testing if the legal limit were overstated. Because Maurer did not withdraw his consent, any understatement of the legal limit did not change the substance of the notice in any way harmfiil to him. See State v. Payne, 236 Ga. App. 338, 339 (512 SE2d 292) (1999); Rojas v. State, 235 Ga. App. 524, 525-528 (1), (2) (509 SE2d 72) (1998). The court did not err in denying his motion to suppress.

3. Finally, Maurer contends the court erred in denying his motion to suppress the results of the breath tests, because there were insufficient grounds to justify them.

The implied consent law pursuant to which [Maurer] gave consent to the testing was contingent upon [his] arrest for an offense arising out of acts alleged to have been committed in violation of OCGA § 40-6-391 and reasonable grounds for the officer to believe that [he] was driving [his] vehicle in violation of § 40-6-391. [Cits.]

State v. Lewis, 233 Ga. App. 390, 392 (2) (504 SE2d 242) (1998). Probable cause for a DUI arrest establishes reasonable grounds for testing. Martin v. State, 214 Ga. App. 614, 615 (1) (448 SE2d 471) (1994); see also Davis v. State, 187 Ga. App. 517, 518 (1) (370 SE2d 779) (1988). The evidence supports the trial court’s determination that there was probable cause for Maurer’s arrest. See Singleterry v. State, 227 Ga. App. 155 (1) (489 SE2d 42) (1997); Martin v. State, supra at 615-616 (1). Therefore, the testing was justified.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.

Decided September 24, 1999.

Clark & Towne, Jessica R. Towne, for appellant.

Carmen Smith, Solicitor, Cynthia Strong-McCarthy, Assistant Solicitor, for appellee.


author: Johnson, Chief Judge.

text:
    A99A1936.
    McENTYRE v. McRAE et al.
    (522 SE2d 731)
   Johnson, Chief Judge.

Annelle McRae sued Lorene McEntyre for personal injuries sustained in an automobile accident. Her husband also joined the suit, alleging loss of consortium. Following a jury trial, the jury returned a verdict in favor of the McRaes. McEntyre appeals from the judgment entered on the jury verdict. We affirm.

1. McEntyre contends the trial court erred in denying her motion to exclude the expert opinion testimony of Drs. Bryan Siddall and Todd Gracen because they had not been identified as expert witnesses in response to her interrogatories. We disagree.

While the record shows that these two doctors were not formally identified as expert witnesses in response to the interrogatory question, it is undisputed that: (1) McRae identified both doctors in her answers to interrogatories as her treating physicians; (2) McRae identified both doctors in her trial brief as “may call” witnesses; and (3) McEntyre’s counsel had obtained the medical records of these doctors during discovery.

Following opening statements, McEntyre moved to exclude the opinion testimony of these two doctors on the ground that neither had been identified as expert witnesses in response to her interrogatory requests. During this motion, she stated that she had no problem with the doctors testifying as fact witnesses because they were on the witness list; however, she wished to exclude any opinion testimony. McEntyre did not suggest she would be prejudiced in any way or that she could not adequately go forward with her case. She did not claim surprise, request a continuance or a mistrial, or ask for an opportunity to interview the witnesses prior to their testifying. In addition, the trial transcript shows that McEntyre cross-examined the doctors and never indicated any additional ground for either excluding the doctors’ testimony or requiring a continuance.

It is well established that the admission of evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. American Petroleum Products v. Mom & Pop Stores, 231 Ga. App. 1, 7 (3) (497 SE2d 616) (1998). In the present case, the trial court denied McEntyre’s motion in limine, finding that it should have been obvious to anyone associated with the case that the plaintiff’s treating doctors were going to give expert testimony. The trial court did not abuse its discretion in allowing the evidence.

Moreover, “[exclusion of probative trial evidence is not an appropriate remedy for curing an alleged discovery omission. [Cit.]” Hunter v. Nissan Motor Co. &c., 229 Ga. App. 729 (1) (494 SE2d 751) (1997). The only appropriate remedy for McRae’s alleged failure to list the two treating doctors as expert witnesses rather than fact witnesses was postponement of trial or a mistrial. Id. at 730. Neither was requested in the present case. This enumeration of error lacks merit.

2. McEntyre contends the trial court should have permitted her to ask McRae on cross-examination about a letter written by her employer to McEntyre’s counsel which stated that it had asked McRae three times to consent to the production of her personnel file and she had refused. McEntyre’s counsel conceded that the letter was inadmissible and acknowledged that he was not going to read it to the jury. However, he argued that he should be allowed to show the letter to McRae to refresh her recollection if McRae testified that she was not asked to give her permission. The trial court ruled this was not appropriate and would not be allowed. We agree.

Although a witness may refresh her memory by referring to a writing prepared by herself or prepared by another at her direction or in her presence, “ ‘[w]hen the document is prepared by a third person not in the presence of a witness, the memory is not refreshed by such memorandum and such testimony is inadmissible.’ ” Atlanta Fire Systems v. Alexander Underwriters &c., 185 Ga. App. 873, 875 (4) (366 SE2d 197) (1988); Zilinmon v. State, 234 Ga. 535, 537 (3) (216 SE2d 830) (1975). The trial court did not err in refusing to allow McEntyre to show McRae the letter written by McRae’s employer to McEntyre’s counsel.

3. McEntyre contends the trial court erred in precluding her from informing the jury that Dr. Robert Yatto was selected by and paid as an independent medical examiner for the plaintiff. We disagree.

First, McEntyre contends that the trial court erred in ruling that such testimony was irrelevant to any issue in the case. The admission of evidence lies in the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. See Dept. of Transp. v. Mendel, 237 Ga. App. 900, 902 (2) (517 SE2d 365) (1999). McEntyre acknowledged in her motion for new trial hearing that although Dr. Yatto was selected by McRae’s attorney, the parties each paid for half of the costs associated with Dr. Yatto’s independent medical examination. Any other factors surrounding the selection and retention of Dr. Yatto, as well as the arguments made regarding this issue and the basis for the trial court’s ruling on this issue, are not included in the record. Without such a record, we cannot determine what occurred in the proceedings below and must assume that the evidence supported the trial court’s ruling excluding evidence of Dr. Yatto’s employment. See McMillian v. Rogers, 223 Ga. App. 699, 700-701 (1) (a) (479 SE2d 7) (1996); City of Atlanta v. Starke, 192 Ga. App. 267, 268-269 (1) (c) (384 SE2d 419) (1989).

Decided September 24, 1999.

McNatt, Greene & Thompson, Troy L. Greene, John T. Croley, Jr., for appellant.

Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, for appellees.

McEntyre also argues that McRae “opened the door” for such cross-examination when her attorney allegedly informed the jury during opening statements that McEntyre, and not McRae, selected and hired the independent medical examiner. McRae disputes McEntyre’s characterization of the comment during opening statement. Opening statements were not transcribed. Absent a transcript, we cannot ascertain exactly what transpired during McRae’s opening statement and, therefore, cannot determine whether McRae “opened the door” for further inquiry into Dr. Yatto’s selection. “The burden is on the party alleging error to show it affirmatively by the record, and when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.” (Citation and punctuation omitted.) Bakery Svcs. v. Thornton Chevrolet, 224 Ga. App. 31, 34-35 (5) (479 SE2d 363) (1996); Sycamore Pellet Systems v. Southeastern Steam, 196 Ga. App. 717-718 (2) (397 SE2d 6) (1990).

We cannot rely on the factual assertions in McEntyre’s brief regarding what transpired during McRae’s opening statement. Such factual assertions, unsupported by the appellate record, are not evidence and may not support a ruling by this court. CNL Ins. America v. Moreland, 226 Ga. App. 57, 58 (485 SE2d 515) (1997). This enumeration of error lacks merit.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.


text:
    A99A2192.
    SMITH v. THE STATE.
    (522 SE2d 744)
   Johnson, Chief Judge.

Bobbie Smith was convicted of possession of cocaine and driving with an expired tag. Viewed in a light most favorable to support the jury’s verdict, the evidence shows that an officer observed Smith pull into the driveway of a house known by the officer as a place where crack cocaine was sold. Smith and her passenger entered the house through a rear door, left ten to twenty minutes later and drove away in the same car.

The officer followed the car a short distance, observed that the vehicle had an expired tag and pulled the car over. He noted that Smith was extremely nervous and hesitant to talk. She was also unsteady, and her eyes were bloodshot. The officer issued her a citation for driving with an expired tag and questioned her concerning the residence she had just left. Smith denied having been at the residence, denied having drugs in her car and consented to a search. A search of the vehicle revealed a rock of crack cocaine on the floor underneath the driver’s seat. In addition, a soft drink can located under the passenger seat had been flattened and punctured, apparently for use as a crack pipe. There appeared to be residue on the can.

1. Smith contends her consent to search was not freely and voluntarily given. This argument is without merit.

In Whren v. United States, the United States Supreme Court held that when an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop, and even if a reasonable officer would not have made the stop under the same circumstances. Thus, if the driver of a stopped car has broken even a relatively minor traffic law, a motion to suppress arguing that the stop was pretextual must fail. In this case, Owens was driving with an expired tag. Therefore, the officer’s stop was not illegal.

After the legal stop, the officer requested and received permission to search the car. Smith was not threatened or coerced. In fact, Smith was even told that the officer suspected she had illegal drugs in the car. Based on the record before us, the totality of the circumstances supports the trial court’s determination that Smith freely and voluntarily consented to the search of the car. The trial court did not err in admitting the evidence.

2. The evidence presented at trial was sufficient to support the jury’s guilty verdict for the crime of possession of cocaine. Smith bases her argument on the fact that the cocaine was discovered under the passenger’s seat and a passenger was in the car. However, the record shows that the cocaine was found under the driver’s seat, within Smith’s reach. It is undisputed that Smith was, at all relevant times, driving the car and that she was its registered owner.

Decided September 24, 1999.

James C. Wyatt, for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

It is well established that a defendant’s possession of cocaine can be based on either direct or constructive possession. Moreover, a presumption arises from proof of ownership or control of an automobile that the owner or possessor controls and possesses the contraband found therein.

In the present case, Smith made no affirmative showing that anyone other than herself had recent access to the cocaine located under her seat. In addition, the evidence showed that Smith had just come from a house in which drugs were regularly sold, that she was nervous, and that her behavior evidenced possible recent drug use. While the evidence was circumstantial, a jury issue was created, and we will not substitute our judgment for that of the jury. On appeal we must view the evidence in a light most favorable to support the verdict. We find that the evidence is sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Smith possessed cocaine.

Judgment affirmed.

McMurray, P. J, and Phipps, J, concur.

       See Coleman v. State, 229 Ga. App. 642, 643 (494 SE2d 549) (1997).

       See Benson v. State, 172 Ga. App. 135, 136-137 (322 SE2d 339) (1984).

       See id.

       See Jackson v. State, 216 Ga. App. 842, 844 (1) (456 SE2d 229) (1995); Benson, supra.

       517 U. S. 806 (116 SC 1769, 135 LE2d 89) (1996).

       See State v. Owens, 239 Ga. App. 722 (521 SE2d 860) (1999).

       See State v. Kirbabas, 232 Ga. App. 474, 477 (502 SE2d 314) (1998); Buffington v. State, 229 Ga. App. 450, 451 (494 SE2d 272) (1997).

        See Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997); Staley v. State, 224 Ga. App. 806 (1) (482 SE2d 459) (1997).

       See Maddox v. State, 227 Ga. App. 602, 605 (4) (490 SE2d 174) (1997); Lowe v. State, 214 Ga. App. 92, 93-94 (446 SE2d 532) (1994).


text:
    A99A2343.
    KIER v. THE STATE.
    (525 SE2d 102)
   McMurray, Presiding Judge.

Defendant was indicted for violating the Georgia Controlled Substances Act in that he did allegedly purchase cocaine from an undercover law enforcement officer. Defendant’s first trial resulted in a hung jury and a mistrial. A second jury trial resulted in defendant’s conviction. This appeal followed the denial of defendant’s motion for new trial. Held:

Three and one-half months after defendant’s first trial and two weeks before his second trial, defense counsel filed a motion for the trial court to reconsider defendant’s earlier oral request for a free transcript of his first trial. The trial court denied this motion in an order which provides that “no sufficient legal reason exists requiring the furnishing of a transcript to defendant or his attorney.” Defendant challenges this order in his sole enumeration of error, pertinently arguing that the trial court’s ruling cut off the only effective means he had for impeaching the State’s only eyewitness.

We will not set aside a trial court’s denial of an indigent defendant’s motion for a free transcript absent an abuse of discretion. Moreland v. State, 213 Ga. App. 75, 76 (2) (443 SE2d 701). But we will measure the trial court’s discretion by the standard set out in Britt v. North Carolina, 404 U. S. 226 (92 SC 431, 30 LE2d 400). The United States Supreme Court held in Britt that two factors are relevant to evaluating an indigent defendant’s claim to a free transcript: (1) the transcript’s value in connection with the defendant’s trial or appeal, and (2) the accessibility of other means that would fulfill the same functions as a transcript. Id. at 227. Both factors must be weighed in the indigent defendant’s favor absent a contrary showing in the record, but only where time in weighing the defendant’s request does not appear to be a factor. Miller v. State, 231 Ga. App. 869 (1) (501 SE2d 42); see Roper v. State, 251 Ga. 95, 98 (7) (303 SE2d 103); Chance v. State, 172 Ga. App. 299, 303 (7) (322 SE2d 741).

The record in the case sub judice contains no factor which authorizes the trial court’s finding that “no sufficient legal reason exists requiring the furnishing of a transcript to defendant or his attorney.” On the contrary, defense counsel’s request for a free transcript appears to have been asserted in timely fashion before defendant’s second trial and within bounds of the two factors set forth in Britt v. North Carolina, 404 U. S. 226, supra. Indeed, this test’s presumption that a free transcript would have been valuable to defendant at his second trial was heightened by the fact that the jury at defendant’s first trial was unable to reach a verdict based on their apparent reluctance to believe one or more of the State’s witnesses. Thus, with the absence of a showing that an alternative to a free transcript was available to defendant, we are compelled to hold that the trial court abused its discretion in denying defendant’s motion for a free transcript. See Miller v. State, 231 Ga. App. 869 (1), supra. But this does not automatically require a new trial. Harm as well as error must be shown. Gann v. State, 190 Ga. App. 82, 86-87 (3) (378 SE2d 369). The controlling issue in the case sub judice, then, is whether a free transcript would have provided defendant with an effective tool for impeachment. Defendant argues that a transcript of his first trial would have been valuable to him because it would have enabled him to impeach the State’s only eyewitness — Agent Zelda Gonzalez of the Thomas County-Thomasville Narcotics Vice Division. We agree.

Decided September 24, 1999.

Copeland & Haugabrook, Karla L. Walker, for appellant.

J. David Miller, District Attorney, James B. Threlkeld, Assistant District Attorney, for appellee.

While defense counsel was attempting to authenticate a law enforcement surveillance recording of defendant’s alleged undercover drug buy (a recording which reveals no criminal activity), Agent Gonzalez testified that she had viewed only a “small portion” of the video and that the portion she viewed depicted her with defendant only after his arrest. This testimony, however, cannot be accurate because the transcript of defendant’s first trial reveals that Agent Gonzalez, during cross-examination, viewed the recording of defendant’s alleged undercover drug buy. Indeed, the transcript of defendant’s first trial shows that Agent Gonzalez admitted that this undercover video recording failed to reveal any criminal activity. Under such circumstances, we cannot say the trial court’s denial of defendant’s request for a free transcript constitutes harmless error. Agent Gonzalez was the State’s only eyewitness, and her veracity was critical to the State’s case.

The trial court erred in denying defendant’s motion for new trial.

Judgment reversed.

Johnson, C. J., and Phipps, J., concur.


text:
    A00A0183, A00A0184.
    STEWART v. THE STATE (two cases).
    (522 SE2d 743)
   McMurray, Presiding Judge.

Freddie Stewart was charged in separate indictments in Tattnall County and Bryan County, alleging the unlawful disposition of proceeds received from preneed funeral service contracts, in that Stewart failed to maintain such funds unimpaired in an authorized state bank as required by OCGA § 43-18-96. Stewart moved to dismiss the indictments, contending the statute under which he was charged was unconstitutional. Both the Tattnall Superior Court and the Bryan Superior Court denied the motions to dismiss. Stewart filed notices of direct appeal to the Supreme Court of Georgia, which concluded its subject matter jurisdiction had not been invoked and transferred the cases to the Court of Appeals of Georgia. Held:

The denial of each motion to dismiss the respective indictment is not a final judgment, directly appealable under OCGA § 5-6-34 (a) (1), but is only an interlocutory order. Hicks v. State, 234 Ga. 142, 143 (214 SE2d 658). Although Stewart obtained certificates of immediate review from the superior court, he did not pursue the mandatory application procedures of OCGA § 5-6-34 (b) for interlocutory appeal. Overruled exceptions to the charging instrument are reviewed only under the interlocutory procedures of OCGA § 5-6-34 (b) or after a conviction. Ivey v. State, 210 Ga. App. 782, 783 (437 SE2d 810). We are without jurisdiction to consider the merits of these direct appeals from interlocutory orders, and so Case Nos. A00A0183 and A00A0184 must be dismissed.

Decided September 24, 1999.

Salter & Shook, Mitchell M. Shook, for appellant.

J. Thomas Durden, Jr., District Attorney, Thurbert E. Baker, Attorney General, for appellee.

Appeals dismissed.

Johnson, C. J, and Phipps, J., concur.

       Compare Patterson v. State, 248 Ga. 875 (287 SE2d 7) (denial of double jeopardy plea is directly appealable); Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (denial of demand for discharge and acquittal under OCGA § 17-7-170 is directly appealable).


text:
    A00A0219.
    HARDRICK v. MORGAN.
    (522 SE2d 742)
   McMurray, Presiding Judge.

David Hardrick was convicted and sentenced upon an indictment for aggravated assault that “was so fundamentally flawed,” the Supreme Court of Georgia affirmed the grant of habeas corpus, ordering Hardrick’s release from prison. Smith v. Hardrick, 266 Ga. 54 (464 SE2d 198). Hardrick subsequently sued the District Attorney for DeKalb County, J. Tom Morgan, alleging a constitutional tort, but in an order entered June 14, 1998, the superior court granted Morgan’s motion to dismiss. Hardrick’s motion for reconsideration of that June 14 order was denied on July 20, 1998, and on August 16, 1998, Hardrick filed a notice of appeal. Held:

“A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of.” OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court. Barnes v. Justis, 223 Ga. App. 671, 672 (478 SE2d 402). A motion for reconsideration does not extend the time for filing a notice of appeal. Rockdale County v. Water Rights Committee, 189 Ga. App. 873, 874 (377 SE2d 730). We are without jurisdiction to consider the instant appeal because a notice of appeal filed on August 16, 1998, from an order of dismissal entered June 14, 1998, is not timely. The appeal in Case No. A00A0219 must be dismissed.

Decided September 24, 1999.

Michael A. Gabel, for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, John C. Jones, Senior Assistant Attorney General, for appellee.

Appeal dismissed.

Johnson, C. J, and Phipps, J., concur.


author: Eldridge, Judge.

text:
    A99A1606.
    BARBER v. THE STATE.
    (522 SE2d 528)
   Eldridge, Judge.

On March 24, 1994, defendant-appellant William L. Barber entered a plea of guilty but mentally ill to two charges of child molestation. The trial court (hereinafter the “sentencing court”) accepted the Alford plea and entered judgment thereon. In October 1998, Barber filed a petition to correct a void judgment, claiming that, at the time he entered his plea, the sentencing court failed to adhere to the procedural requirements of OCGA § 17-7-131 (b) (2). The trial court dismissed the petition on March 12, 1999, and Barber appeals. Held:

1. In his first enumeration of error, Barber contends that the trial court erred in ruling that it was without jurisdiction to consider his petition. We agree, but nonetheless affirm the dismissal of Barber’s petition.

(a) In its order, the trial court found that Barber’s petition came outside the term of court in which it was entered. It therefore determined that Barber’s only recourse in challenging the validity of the judgment on his guilty plea was through a habeas corpus proceeding. See OCGA § 9-14-42 (a); see also Grice v. State, 236 Ga. App. 379, 380 (511 SE2d 909) (1999).

However, Barber’s petition asserted that the judgment was void due to the failure of the sentencing court to comply with OCGA § 17-7-131 (b) (2). The Supreme Court of Georgia has held that, under OCGA § 9-14-42 (a), “the question of whether the requirements of OCGA § 17-7-131 were violated is not cognizable in a habeas action [,]” because it is based upon an alleged denial of rights under state law. Parker v. Abernathy, 253 Ga. 673, 674 (324 SE2d 191) (1985).

Therefore, the trial court’s dismissal of the petition on the stated basis was error. However, the dismissal was proper on another basis, and a dismissal of a petition will be affirmed if it is right for any reason. See North Fulton Med. Center v. Roach, 265 Ga. 125, 127 (1) (453 SE2d 463) (1995); Little v. Fleet Finance, 224 Ga. App. 498, 503-504 (1) (481 SE2d 552) (1997).

(b) Outside the term of court, the trial court had subject matter jurisdiction to invalidate Barber’s sentence if it was, in fact, void. A void judgment is “a mere nullity,” and an individual may attack such judgment “when it becomes material to the interest of the parties to consider it.” Hubbard v. State, 225 Ga. App. 154, 155 (483 SE2d 115) (1997). See also OCGA § 17-9-4; Bryant v. State, 229 Ga. App. 534, 536 (1) (494 SE2d 353) (1997).

However, in order for a trial court to have the power to exercise the subject matter jurisdiction to correct the judgment outside the term of court, the judgment must be, in fact, void. If the judgment is not void, a trial court has no further subject matter jurisdiction outside the term of court and the petition must be dismissed.

2. In this case, the judgment was not void, because the procedural requirements of OCGA § 17-7-131 (b) (2) were fulfilled when Barber’s plea was taken and a factual basis for Barber’s plea was established. The trial court, in its order dismissing Barber’s petition, found that the record from the plea hearing demonstrated that the sentencing court’s procedures were “sufficient to the facts and law in that a mental condition hearing (plea hearing) was held and that there was basis for the plea and that the same was voluntarily made.” This finding is supported by the record.

The transcript demonstrates that defense counsel obtained an independent psychiatric report upon which the plea was based and read Barber’s extensive psychiatric history into the record for the sentencing court’s consideration. Further, at the plea hearing, the sentencing court inquired into Barber’s history of mental illness prior to ruling that the evidence was sufficient to support the plea of guilty but mentally ill. The sentencing court then accepted and sentenced Barber upon such plea.

Decided September 14, 1999

Reconsideration denied September 27, 1999

William L. Barber, pro se.

C. Paul Bowden, District Attorney, William D. Bonds, Assistant District Attorney, for appellee.

Under the circumstances, the procedures utilized by the trial court were sufficient, so that the judgment was valid. Therefore, outside the term of court, the trial court lacked jurisdiction to act on Barber’s petition, i.e., to “correct” the judgment. The petition was properly dismissed.

3. However, even if the plea procedures were insufficient under OCGA § 17-7-131 (b) (2), the “guilty but mentally ill” plea is for the benefit of the defendant, because (1) it provides for mental health treatment during the sentence, and (2) it recognizes a reduced level of culpability. Therefore, if the sentencing court failed to strictly comply with OCGA § 17-7-131 (b) (2), such failure inured to Barber’s benefit and was harmless error. See Kirkland v. State, 166 Ga. App. 478, 482 (2) (304 SE2d 561) (1983).

Further, any error by the sentencing court in accepting the plea was induced when Barber sought a guilty but mentally ill plea and then failed to contemporaneously object to the procedure utilized to enter such plea and file a direct appeal. Therefore, any objection is waived.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       Two charges of aggravated child molestation were nolle prossed by the State.

        North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970).

       Under OCGA § 17-7-131 (b) (2),
      [a] plea of guilty but mentally ill at the time of the crime . . . shall not be accepted until the defendant has undergone examination by a licensed psychologist or psychiatrist and the court has examined the psychological or psychiatric reports, held a hearing on the issue of the defendant’s mental condition, and is satisfied that there is a factual basis that the defendant was mentally ill at the time of the offense ... to which the plea is entered.

       The transcript of the plea hearing shows that the plea was entered voluntarily and knowingly. Logan v. State, 256 Ga. 664 (352 SE2d 567) (1987); Boyette v. State, 217 Ga. App. 593, 595 (2) (458 SE2d 397) (1995); Morgan v. State, 191 Ga. App. 367 (1) (381 SE2d 583) (1989).


text:
    A99A1001.
    GILLIAM v. THE STATE.
    (522 SE2d 766)
   Phipps, Judge.

Tony Demetrius Gilliam was convicted of robbery. He raises two issues on appeal: Did the trial court err by not declaring a mistrial or instructing the jury to disregard identification testimony from witness Beverly Weathers; and was defense counsel ineffective in not objecting to hearsay testimony and not stating or reserving objections to the court’s charge to the jury?

At approximately 9:30 p.m. on January 27, 1996, Betty Green was accosted in the parking lot of a Speedway convenience store in Richmond County. As Green exited her car with a purse on her shoulder, a man approached her from behind and said, “Give it up; give up this purse.” The man grabbed the purse, and he and Green struggled over it. Ultimately, the man took the purse and ran away.

1. During the trial on July 29, 1996, Beverly Weathers testified for the State that she observed the robbery as she sat in her van at the Speedway. Somewhat equivocally, Weathers identified Gilliam during direct examination:

Q: Okay. Do you see the person in the courtroom today that you saw that night?
A: I was never shown anything after that, so it’s — it is hard right now to just say that is him, but I would say he — this man over here resembles him.
Q: Okay. But are you sure or are you not sure? If you can’t be positive, you need to tell the Court that.
A: Yes, sir, I would say it was him.

(Emphasis supplied.) On cross-examination, Weathers wavered further and revealed that earlier on the morning of trial, she was shown a single photograph of Gilliam by the State’s attorney: “Q: Are you 100% positive that that is, in fact, the same gentlemen [sic] or does he just resemble Tony? A: I’ve had nothing to compare it to until this morning. I was shown a photo this morning before court” (Emphasis supplied.) After two other witnesses testified, defense counsel moved the court to déclare a mistrial based on Weathers having been shown the photograph of Gilliam. Alternatively, counsel moved the court to instruct the jury that it should disregard Weathers’s identification testimony. The court denied both motions.

To preserve a motion for mistrial for appellate review, the motion must be made contemporaneously with the objectionable testimony. Stephens v. State, 232 Ga. App. 738, 739 (2) (503 SE2d 643) (1998); Sweeney v. State, 233 Ga. App. 862, 865 (4) (506 SE2d 150) (1998). Gilliam’s motion for mistrial was not timely and was waived because it was not made contemporaneously with the objectionable testimony. See id.

But under Sharpe v. Dept. of Transp., 267 Ga. 267 (1) (476 SE2d 722) (1996), the motion to instruct the jury to disregard Weathers’s identification was preserved. Sharpe held that where a criminal defendant alleges evidence presented was inadmissible because it was obtained in violation of his constitutional rights, he may properly move to strike the evidence at any point before the jury retires. Id. at 271. Gilliam’s motion is basically a motion to strike, and the rationale is that Weathers’s in-court identification of him was obtained in violation of his due process rights. See generally Neil v. Biggers, 409 U. S. 188, 198-199 (93 SC 375, 34 LE2d 401) (1972).

“[RJeliability is the linchpin in determining the admissibility of identification testimony. [Cit.]” Burrell v. State, 239 Ga. 792, 793 (239 SE2d 11) (1977). A two-part test is used. “The threshold inquiry is whether the identification procedure was impermissibly suggestive. Only if it was need the court consider the question: whether there was a very substantial likelihood of irreparable misidentification.” (Punctuation omitted.) State v. Frye, 205 Ga. App. 508, 509 (2) (422 SE2d 915) (1992) (citing Gravitt v. State, 239 Ga. 709, 710 (4) (239 SE2d 149) (1977)). The photograph shown to Gilliam was likely one of several from Speedway surveillance tapes, which were recorded two months before the robbery. Weathers described the picture as “a single black and white photograph of one man in front and one in back of him.” The prosecutor said he showed Weathers a group of surveillance photographs, each showing Gilliam and another black male in the store. According to defense counsel, “Weathers was shown a single photograph containing the back of a white male and the facial view of a black male.” All the descriptions are consistent with eight still photographs admitted into evidence. In six of them, Gilliam, a black male, is standing at the counter of the store, facing the camera. A white store clerk is standing across the counter from Gilliam facing him in each picture. In one of those six pictures, a black male is standing behind Gilliam, as if in line.

Showing Weathers any of those photographs was impermissibly suggestive. See Bradley v. State, 152 Ga. App. 902, 903 (264 SE2d 332) (1980); Talley v. State, 137 Ga. App. 548, 550 (2) (224 SE2d 455) (1976). During the roughly six-month period between the robbery and trial, no photographs were shown to Weathers. Then, shortly before trial, she was shown a picture which depicted Gilliam far more prominently than anything or anyone else.

In determining whether a suggestive pretrial procedure created a very substantial likelihood of irreparable misidentification, we consider the totality of the circumstances through five factors: (1) the witness’s opportunity to view the accused at the time of the crime; (2) the witness’s degree of attention during the crime; (3) the accuracy of the witness’s prior description of the accused; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Frye, supra at 509 (citing Neil v. Biggers, 409 U. S. at 199).

Weathers testified that: (a) she “zeroed in on [the robber]” after her husband alerted her the man was suspicious and standing near their vehicle; (b) she watched this person closely, because she had an intuition that he would do something wrong, and she wanted to be able to identify him; (c) she was very concerned about this person, because her twelve-year-old daughter was still inside the convenience store, and she was worried the man might attempt to rob the store; (d) when the man stood near her van, he was only about six feet away.

Weathers also gave descriptions of the perpetrator’s clothing and general appearance that are consistent with those of the other two eyewitnesses. All described the perpetrator as being a black male around six feet tall who wore a green military-type field jacket. Denese Rhodes, a store clerk at the Speedway, testified that Gilliam wore such clothing at the store the night of the robbery and always wore it every time she had seen him there. All these things inspire confidence in the reliability of Weathers’s identification.

Gilliam emphasizes Weathers’s uncertainty. While Weathers’s memory of the perpetrator clearly diminished during the six months before trial, and the wisdom of showing her a single photograph of Gilliam was questionable, the chance of misidentification was not irreparable. A great danger with suggestive identification procedures is the difficulty in discerning whether a witness is testifying from memory or exposure to the suggested image. A witness who has transferred an image will likely not know themselves they have done so and may mistakenly testify very convincingly that the accused is the perpetrator.

But this jury heard Weathers’s equivocation and knew she had been shown the picture. They were in a position to factor those things into the weight of her testimony. See Rivers v. State, 225 Ga. App. 558, 562 (3) (484 SE2d 519) (1997). The judge instructed the jury to consider among other things: (1) the level of certainty shown by the witness about her identification; (2) the possibility of mistaken identity; and (3) whether the witness’s identification may have been influenced by factors other than the view that the witness claimed to have. The court did not err in refusing to instruct the jury to disregard Weathers’s identification.

2. With respect to his ineffective assistance of counsel claims, Gilliam must show that his “trial counsel’s performance was deficient and that it prejudiced [him] so as to deprive [him] of a fair trial. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).” Earnest v. State, 262 Ga. 494, 496 (5) (422 SE2d 188) (1992).

Gilliam’s first contention relates to the following testimony from Investigator Dwayne Piper:

Decided September 28, 1999.

Garrett & Gilliard, Kirk E. Gilliard, for appellant.

One person who insisted on remaining anonymous stated that not only does she — is she familiar with the person in the photograph, she knew his first name and last name. She identified the person as Tony Gilliam. She further testified that this person had a girlfriend by the name of Lucy Mims and lives in the area of Mom and Pop’s Grocery Store or Convenience Store which is located on the 2000 block of Broad Street.

Gilliam is correct that this testimony was objectionable as hearsay. It was not, as the State asserts, admissible to explain Piper’s conduct. This case was not one of the rare instances where the investigating officer’s motives, intent or state of mind was relevant. See Brinson v. State, 268 Ga. 227, 228-229 (3) (486 SE2d 830) (1997).

We do not find it likely, though, that counsel’s error factored in the outcome. See Richards v. State, 232 Ga. App. 584, 588-589 (5) (502 SE2d 519) (1998). First, Piper’s rendition of the anonymous photographic identification was cumulative of identifications already related at trial from the same set of photographs. The picture Piper showed the anonymous person was one of the still store surveillance photographs. Store clerk Denese Rhodes identified Gilliam at trial in the pictures and related a pretrial identification of Gilliam she made from them. The pictures were also admitted into evidence during Rhodes’s testimony, and the jury was in a position to view the pictures and assess for itself whether Gilliam was the man shown.

Finally, the weight of properly admitted evidence against Gilliam was heavy. In addition to identifying Gilliam twice in the still photographs, Rhodes positively identified Gilliam in court as the robber and testified that before trial she picked him from a photographic array of six people. Green testified that Gilliam was near her car before she was robbed, and she was attacked from behind. Weathers testified she believed Gilliam was the robber. Green, Weathers and Rhodes all testified that the robber wore distinctive military clothing, which Rhodes testified Gilliam habitually wore. Finally, Gilliam ran when approached by police.

We also find no merit in Gilliam’s assertion that his trial counsel was ineffective for failing either to object or reserve objections to the court’s charge to the jury. Gilliam asserts no particular error in the court’s charges. We have no reason to find that trial counsel should have objected.

Judgment affirmed.

Pope, P. J., and Eldridge, J, concur.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

       In its brief to this Court, the State does not dispute the suggestiveness of showing Weathers the subject photograph. Instead, the State asserts that notwithstanding the showing of the photograph, the possibility of misidentification created by the showing was not so great as to warrant exclusion of the in-court identification.


text:
    A99A1020.
    ROWE v. STATE BOARD OF PARDONS & PAROLE.
    (523 SE2d 40)
   Phipps, Judge.

Kimberly Lynn Rowe died in an automobile collision involving a car driven by Robert Lee Fuller, who was on parole at the time. Daryl Eugene Rowe, as the administrator of Kimberly Rowe’s estate, sued the State Board of Pardons & Parole, claiming that the Board’s negligent supervision of Fuller was a proximate cause of her death. The trial court granted the Board’s motion to dismiss because the Board’s supervision of Fuller was a discretionary function of the State, which, under the Georgia Tort Claims Act, is not subject to liability. We agree and affirm.

“[A] motion to dismiss for failure to state a claim . . . should be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of the claim.” (Citation and punctuation omitted.) Dept. of Transp. v. Jackson, 229 Ga. App. 321, 322 (494 SE2d 20) (1997).

The State, with certain exceptions, has waived its sovereign immunity for the torts of State officers and employees acting in the scope of their official duties. OCGA § 50-21-23 (a). One exception to this waiver is that the State has no liability for losses resulting from a “discretionary function” of a State officer or employee, whether the discretion is abused or not. OCGA § 50-21-24. Under the Georgia Tort Claims Act, “discretionary function” is defined as “a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.” OCGA § 50-21-22 (2).

The Board’s position is that parolee supervision is discretionary, and therefore not subject to liability. Rowe argues that the Board and its employees failed to perform non-discretionary duties, and that sovereign immunity should not shield the Board from liability. Rowe’s complaint lists numerous violations of Fuller’s parole that were not reported by his parole officers to the Board. He claims that the Board and its employees failed to perform their duties under OCGA § 42-9-48 (d), which provides

Any parole supervisor, when he has reasonable ground to believe that a parolee or conditional releasee has violated the terms or conditions of his parole or conditional release in a material respect, shall notify the board or some member thereof; and proceedings thereupon be had as provided in this Code section.

Rowe claims the statute’s requirement that a parolee be reported to the Board is ministerial and not discretionary in nature, and that Fuller’s parole officers negligently, wilfully and wantonly failed to perform this duty.

A parole supervisor is expected to use individual judgment in determining whether there is a “reasonable ground to believe” there has been a violation in a “material respect.” OCGA § 42-9-48 (d). The use of individual judgment is consistent with the definition of “discretionary” under the Georgia Tort Claims Act. The duties of a parole officer also include supervising people, which is generally held to constitute a “discretionary” function. See Dept. of Corrections v. Lamaine, 233 Ga. App. 271, 273 (502 SE2d 766) (1998) (“We have consistently held that one who supervises or monitors another exercises discretion in so doing.”); Payne v. Twiggs County School Dist., 232 Ga. App. 175, 177 (2) (501 SE2d 550) (1998).

Before the Georgia Tort Claims Act, the courts recognized immunity for the discretionary acts of public officials, and a line of cases has found actions of the parole board to be discretionary in nature. See, e.g., Christensen v. State of Ga., 219 Ga. App. 10 (464 SE2d 14) (1995); Mosier v. State Bd. of Pardons &c., 213 Ga. App. 545 (2) (445 SE2d 535) (1994); Neal v. McCall, 134 Ga. App. 680, 681 (2) (215 SE2d 537) (1975).

Rowe points to Dept. of Transp. v. Brown, 267 Ga. 6, 7 (1) (471 SE2d 849) (1996), for the proposition that “the discretionary function exception is limited to basic governmental policy decisions.” In Brown, the Court found that operational and design decisions by the DOT were not policy decisions which would entitle the DOT to immunity under the discretionary function exception to the Georgia Tort Claims Act. Brown was distinguished in Brantley v. Dept. of Human Resources, 235 Ga. App. 863 (509 SE2d 645) (1998) (cert. granted). In Brantley, the court ruled that supervision of a foster child was a discretionary function under the Georgia Tort Claims Act, noting that “generally, the determination of whether an action is discretionary depends on the character of the specific actions complained of, not the general nature of the job, and is to be made on a case-by-case basis.” (Citations and punctuation omitted.) Id. at 865. The court found that supervising children, which has generally been held to be discretionary in nature, was not analogous to the design and operation of roads considered in Brown. Id. Similarly, we find that supervision of parolees is different in nature from design and operation of roads. A parole officer’s duties under OCGA § 42-9-48 (d) involve (1) judgment in (2) supervising other people while (3) administering the parole function of the Board, and the weight of these factors is sufficient for us to hold that such duties are discretionary within the meaning of the Georgia Tort Claims Act, and therefore not subject to liability. The trial court’s order to dismiss is affirmed.

Decided September 28, 1999.

Dennis P. Helmreich, for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Richard N. Sheinis, Assistant Attorney General, for appellee.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.