author: Johnson, Presiding Judge.

text:
    A01A0652.
    BEGNER v. STATE ETHICS COMMISSION.
    (552 SE2d 431)
   Johnson, Presiding Judge.

An attorney delivered to a political candidate a contribution on behalf of a client without disclosing the client’s name, in violation of OCGA § 21-5-30 (e), which prohibits anonymous campaign contributions. When the superior court ordered the attorney to testify before the State Ethics Commission and to reveal the identity of the client who made the contribution, he appeared before the Commission but refused to reveal the name of the client, invoking his statutory and constitutional privileges against self-incrimination. The issue presented by this case is whether a person can properly be held in contempt for violating court orders requiring him to appear and testify, when he does, in fact, appear and testify, but then refuses to divulge information that he believes may incriminate him. We find that under certain circumstances, he cannot be held in contempt. Because the trial court in this case did not have the opportunity to determine whether those circumstances exist here, we vacate the trial court’s judgment and remand the case for further proceedings and findings on this issue.

Tamera Knight was a candidate for the Georgia House of Representatives. She received a campaign contribution in the form of a $100 check drawn on the escrow account of the appellant, Alan Begner. Knight’s opponent, Vinson Wall, criticized her for accepting the contribution from Begner. Knight then confronted Begner, who explained to her that the check was not his personal contribution to her campaign but was actually a contribution from one of his clients. However, Begner refused to identify his client for Knight. Knight returned the $100 contribution to Begner on July 15, 1994. Believing that Wall was involved in making the anonymous contribution as part of a conspiracy to malign her campaign, Knight filed a complaint against Wall with the State Ethics Commission. The Commission held a hearing on the complaint on September 22, 1994, and subpoenaed Begner to testify. During his testimony, Begner admitted that he had made the $100 contribution and testified that Wall was not involved, but refused to identify the client who had made the contribution, invoking the attorney-client privilege.

The Commission dismissed the complaint against Wall but found probable cause to believe that Begner himself had violated OCGA § 21-5-30 (e), which prohibits the making of anonymous campaign contributions, and set the case for an evidentiary hearing to be held on December 14, 1995. The Commission subpoenaed Begner to appear at the hearing and then filed a petition to enforce an administrative subpoena on August 14,1995, in the Superior Court of Fulton County. The petition sought a court order requiring Begner to appear before the Commission and, specifically, to identify the client who provided money to Begner for the purpose of making a campaign contribution. On August 15, 1996, the Commission filed a motion for summary judgment on the issues presented, and the hearing was continued pending the final disposition on this motion. On October 29, 1997, the Fulton Comity Superior Court issued an order granting the Commission’s motion for summary judgment and ordering Begner to appear before the Commission and to disclose the name of the client from whom he had received the contribution. Begner did not appeal that order of the court.

On March 26, 1998, Begner filed a motion in the Fulton County Superior Court asking it to clarify whether its order of October 29, 1997, compelled him to testify against himself. Begner’s motion also sought a protective order in relation to the subpoena issued by the Commission. On February 9,1999, the trial court issued an order dismissing the motion for protective order, as it was moot by that time, and denying the motion for clarification. It denied the motion for clarification because, it stated, the order at issue did not require clarification and, in addition, Begner was actually seeking to assert a defense rather than clarification. Begner did not appeal this second order of the trial court.

After being subpoenaed by the Commission, Begner appeared at the April 14,1999 hearing but refused to disclose the name of the client who had given him the $100 contribution, invoking the statutory privilege in OCGA § 24-9-27, together with the constitutional privilege protecting him from self-incrimination. Following Begner’s refusal to name the client at the April 14 hearing, the Commission filed a motion for contempt on July 1, 1999. The trial court heard argument on the motion on October 7, 1999, and, on January 25, 2000, initially issued its order finding Begner in contempt for failing to comply with the court’s previous two orders. When Begner’s initial attempt to appeal this decision resulted in a remand (because that order was deemed not to be a final order by this Court), the trial court reissued its order on October 9, 2000, as a final order finding Begner in contempt and providing that he could purge that contempt by appearing and testifying as previously ordered. On October 17, 1999, Begner filed a notice of appeal from that order.

1. In his first enumeration of error, Begner asserts that the trial court erred in finding him in contempt of its earlier order requiring that he testify before the State Ethics Commission because he did, in fact, testify before the Commission and, while testifying, properly invoked his statutory and constitutional privileges against self-incrimination. For the reasons set out below, we vacate the trial court’s order and remand the case for further proceedings.

The Fifth Amendment of the United States Constitution provides that no person shall be compelled in any criminal case to be a witness against himself. The Georgia Constitution contains a similar privilege against self-incrimination, providing that no person shall be compelled to give testimony tending in any manner to be self-incriminating. In addition, the privilege has been codified in OCGA § 24-9-27 (1), which states, in part: “(A) No party or witness shall be required to testify as to any matter which may criminate or tend to criminate himself or which shall tend to bring infamy, disgrace, or public contempt upon himself or any member of his family.”

The privilege against self-incrimination not only extends to answers that would in themselves support a conviction, but also to answers that would provide a “link in the chain of evidence needed to prosecute.” The case upon which Begner primarily relies with respect to the privilege under Georgia law is Busby v. Citizens Bank of Hapeville, in which we considered the appeal from an order holding appellants in contempt for failing to answer post-judgment interrogatories. Each of the appellants had refused to answer certain interrogatories “on the grounds that to answer the interrogatories might tend to incriminate me.” Following a motion to compel, the trial court had ordered the appellants to “completely . . . answer each interrogatory.” When the appellants reiterated their privilege objection, the trial court ruled that they were in contempt. Begner cites Busby for the proposition that, once the witness has ascertained that his answers could be or are incriminating, only he or she can weigh the effect; therefore, there is nothing for the trial judge to determine. However, Begner takes the Court’s language out of context and misapplies it here. Although we reversed the trial court, as Begner points out, we held that, under the limited circumstances in which a witness is compelled to make financial disclosures, “questioning concerning financial affairs might tend to incriminate a person as a matter of law” In a matter dealing particularly with financial affairs, “only the witness can weigh the effect. There is nothing for the trial judge to determine.” We have reaffirmed this limited holding in several cases since Busby.

The holding of Busby does not apply in this case, as this case does not involve financial disclosures. The applicable standard under Georgia law is found in Mallin v. Mallin, which holds that when questioning does not tend to incriminate a person as a matter of law, the trial court must determine if the answers could incriminate the witness. If so, then the decision whether it might must be left to the defendant. If the witness then says under oath that his answer would incriminate him, then “the court can demand no other testimony of the fact.” Further, the United States Supreme Court recently reaffirmed its prior holding from Hoffman v. United States that “the privilege’s protection extends only to witnesses who have reasonable cause to apprehend danger from a direct answer.” The Court added that the inquiry is for the court; the witness’ assertion alone does not establish the risk of incrimination. Georgia courts have consistently applied the holding from Hoffman and held that, although the privilege against self-incrimination is applicable in civil cases, “there is no blanket Fifth Amendment right to refuse to answer questions in noncriminal proceedings. The privilege must be specifically claimed on a particular question and the matter submitted to the court for its determination as to the validity of the claim.”

Here, Begner appeared at the April 14,1999 hearing pursuant to the trial court’s orders. Begner did not assert a blanket Fifth Amendment privilege, refusing to answer all questions. Rather, he considered each question as it was asked and invoked his privilege against self-incrimination when asked any question relating specifically to the anonymous contribution and, particularly, when asked to identify the name of the client who gave him the contribution.

Under the Mallín standard, the trial court could have properly found Begner in contempt of its orders only if it had first determined that the questions posed to Begner could not have been incriminating. If, however, the trial court had determined in its inquiry that the questions could have been incriminating, then Begner could have properly asserted his privilege against self-incrimination if he determined that the questions might incriminate him.

We acknowledge that this case is distinguishable from those cases in which we have previously applied the Mallin standard in the sense that the trial judge here did not have the opportunity to make the determination on the inculpatory nature of the questions at the time Begner asserted the privilege. Begner had testified at an administrative hearing, not at a proceeding where the judge herself would have been present. In light of this, in order to follow the proper procedure, the judge in this case must have, and should have, made the determination at the subsequent hearing on the motion for contempt.

The United States Supreme Court’s language from Hoffman provides guidance on how to apply the proper standard: “To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” In making the determination, the trial judge “must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.” Although not binding on this Court, the language of the United States Court of Appeals, Sixth Circuit, in its analysis and application of Hoffman is instructive: “a real danger of prosecution . . . exists where questions, which appear on their face to call only for innocent answers, are dangerous in light of other facts already developed.”

The transcript of the hearing on the Commission’s motion for contempt indicates that the trial judge did not make the inquiries as required by Mallin. However, we cannot determine that the trial judge improperly held Begner in contempt, but only that she prematurely held him in contempt. To reiterate, the fact that Begner asserted the privilege would not create a prima facie case that he violated the trial court’s orders. Only once the inquiries were made, and the judge determined that there was no reasonable basis for Begner’s fear of prosecution, could Begner be properly held in contempt. Because no order can require someone to testify in a way that could be incriminating, the question of whether Begner validly asserted the privilege is critical in determining whether he was in contempt.

We therefore vacate the order finding Begner in contempt and remand this case to the trial judge to conduct a hearing in which the Commission discloses exactly which questions it intends to ask, and the trial judge conducts the proper inquiries to determine if the purported questions could be incriminating. If she determines that they could be incriminating, then the burden shifts to Begner to decide if the answers to the questions might be incriminating. If the answer is “yes,” then Begner may properly invoke his privilege against self-incrimination. If, however, the trial judge determines that the questions posed by the Commission could not be incriminating, then she may order Begner to answer the questions and may properly hold Begner in contempt should he refuse to answer them.

Decided July 2, 2001.

G. Brian Spears, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, for appellee.

For the purposes of remand, it is necessary to address one additional issue. Although not raised on appeal, Begner has previously declined to answer certain questions regarding the contribution on the basis of the attorney-client privilege. It is important to note that this would not be a valid assertion in this case for two reasons. First, the mere fact of employment between attorney and client is not protected from disclosure. Second, under the crime-fraud exception, the privilege may not be used to enable persons to carry out contemplated crimes against society, frauds or peijuries. If, as was allegedly the case here, the client used the attorney as the instrument by which he perpetrated a crime, the crime-fraud exception would preelude the attorney from invoking the attorney-client privilege in respect to testimony regarding the crime.

2. In light of our holding in Division 1, we do not find it necessary to address Begner’s second enumeration of error, i.e., that the Commission, by its own rules, was not permitted to initiate the type of self-initiated inquiries at which Begner was summoned to testify.

Judgment vacated and case remanded with direction.

Ruffin and Ellington, JJ, concur.

       U. S. Const., Amend. V.

       Ga. Const, of 1983, Art. I, Sec. I, Par. XVI.

       See Hoffman v. United States, 341 U. S. 479, 486 (71 SC 814, 95 LE 1118) (1951); Simpson v. Simpson, 233 Ga. 17, 19 (209 SE2d 611) (1974).

       131 Ga. App. 738 (206 SE2d 640) (1974) (physical precedent only).

       (Punctuation omitted.) Id. at 739.

       (Punctuation omitted.) Id.

       (Punctuation omitted; emphasis in original.) Id. at 740.

       Id. at 741; see also Mallin v. Mallin, 227 Ga. 833, 835 (2) (183 SE2d 377) (1971).

       See Prince & Paul v. Don Mitchell’s WLAQ, 127 Ga. App. 502, 503 (2) (194 SE2d 269) (1972); Tennesco, Inc. v. Berger, 144 Ga. App. 45, 47 (3) (240 SE2d 586) (1977); Chambers v. McDonald, 161 Ga. App. 380, 381 (1) (288 SE2d 641) (1982).

       Supra.

       See id. at 834-835 (1); see also Lawrence v. State, 257 Ga. 423, 424, n. 3 (360 SE2d 716) (1987); Bass v. Bass, 222 Ga. 378, 385 (3) (149 SE2d 818) (1966).

       (Punctuation omitted.) Mallin, supra at 834.

       Supra.

       (Citation and punctuation omitted.) Ohio v. Reiner, 532 U. S. 17 (121 SC 1252, 1254, 149 LE2d 158) (2001).

       See id.

       Arguably, the proceeding in this case is not a civil proceeding, but the Supreme Court of Georgia applied the Mallín standard in Lawrence v. State, supra, which was a criminal case. Thus, although the cases in which this Court has articulated the standard were all civil cases, the standard from Hoffman and Mallín should be applied in this case, regardless of the classification given this case, just as the Supreme Court of Georgia applied it in Lawrence.

       (Citation and punctuation omitted.) Tennesco, Inc., supra at 48; see also Jett v. State, 230 Ga. App. 655, 656 (2) (498 SE2d 274) (1998) (physical precedent only); Petty v. Chrysler Credit Corp., 169 Ga. App. 418 (312 SE2d 874) (1984); Chambers, supra at 381.

        Hoffman, supra at 486-487.

       (Punctuation omitted.) Id. at 487.

        In re Morganroth v. Fitzsimmons, 718 F2d 161, 167 (6th Cir. 1983).

       See OCGA §§ 24-9-21 (2); 24-9-24.

       See Cranford v. Cranford, 120 Ga. App. 470, 473 (2) (170 SE2d 844) (1969); Parrott v. State, 206 Ga. App. 829, 835-836 (6) (427 SE2d 276) (1992).

        See Marriott Corp. v. American Academy of Psychotherapists, 157 Ga. App. 497, 502 (3) (b) (277 SE2d 785) (1981).


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A01A0795.
    ROUNDTREE et al. v. CLOUD et al.
    (551 SE2d 770)
   Andrews, Presiding Judge.

Derrick Roundtree and his wife, Emérita Roundtree, appeal from the trial court’s grant of summary judgment to City of Macon Police Officers Cloud and Torres and their supervisor Chief Vasquez in Derrick Roundtree’s suit for injuries suffered when the van in which he was riding was struck by Theodore Thomas, who was fleeing from the officers.

Viewed with all inferences in favor of Roundtree, opponent of summary judgment, Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the evidence was that on October 10, 1997, off-duty Officers Cloud and Torres were working security at the Macon Mall when they were advised that Thomas had been spotted on mall premises driving a 1993 blue Buick Regal. Because of previous shoplifting offenses, an order banning Thomas was issued by the mall, making his presence there a criminal trespass.

Officer Cloud, in uniform and driving his Macon Police cruiser, saw a car matching the Buick’s description and stopped to investigate. As he did so, he saw Thomas approaching the car carrying bags from a department store in the mall. Thomas and several passengers got in the Buick. Although Cloud motioned for Thomas to remain parked, Thomas pulled out and drove away. Cloud activated his blue lights and siren and pursued the Buick. Cloud also notified Officer Torres, his backup officer, of the pursuit. Thomas pulled in front of Torres on the mall perimeter road, and Torres activated his lights and siren and joined the pursuit.

As the three cars left the mall parking lot and entered city streets, Officer Cloud switched his police radio from the mall channel to the police channel, spoke to the controller and advised that he and Torres were attempting to make a traffic stop. Torres, who was immediately behind Thomas’ car, suffered engine problems and pulled aside to allow Cloud to continue pursuit. The chase continued over several residential streets in Macon, with Officer Cloud remaining five to ten car lengths behind Thomas and Officer Torres, who had restarted his car, following Officer Cloud. Thomas ran two stop signs during the chase and was exceeding the speed limit, which was 25 mph. According to Officer Cloud, during the pursuit he saw few other cars and no pedestrians. Thomas was beginning to pull away from Officer Cloud when he ran a stop sign and ran into the van occupied by Mr. Roundtree.

Suit was filed against the City of Macon, Police Chief Vasquez and Officers Cloud and Torres, claiming the pursuing officers’ actions were negligent.

Decided July 2, 2001.

Reynolds & McArthur, Bradley J. Survant, for appellants.

James, Bates, Pope & Spivey, John T. Mitchell, Jr., Groover & Childs, Denmark Groover, Jr., Martin, Snow, Grant & Napier, Richard A. Epps, Jr., Jay C. Traynham, Barrickman, Allred & Young, Fredric S. Young, for appellees.

1. Roundtree contends that summary judgment in favor of Officers Cloud and Torres on the basis of official immunity as applied in Williams v. Solomon, 242 Ga. App. 807 (531 SE2d 734) (2000), was error because the trial court failed to give effect to OCGA § 40-6-6. This argument is premised on an apparent conflict between Williams, supra, and Lang v. Becham, 243 Ga. App. 132 (530 SE2d 746) (2000).

This perceived conflict, however, has been obverted by Cameron v. Lang, 274 Ga. 122 (549 SE2d 341) (2001). There, the Supreme Court found that, as a threshold issue before addressing proximate cause and OCGA § 40-6-6, a trial court must consider whether the officer is entitled to qualified immunity from personal liability in a lawsuit for damages.

Further, the Supreme Court found that

Nothing in the language of OCGA § 40-6-6 on emergency vehicles requires a court to address the issue of causation before dealing with the defendants’ immunity from liability. OCGA § 40-6-6 (d) (3) states explicitly that subsection (d) deals solely with issues of causation and duty and “shall not affect the existence or absence of immunity which shall be determined as otherwise provided by law.”

Cameron, supra at 124 (1).

Therefore, the trial court’s conclusion that Officers Cloud and Torres were entitled to qualified immunity precluding Roundtree’s suit was correct.

2. Similarly, Roundtree’s argument regarding the vicarious liability of Chief Vasquez is of no avail in light of Cameron, supra.

Judgment affirmed.

Eldridge and Miller, JJ., concur.

       Mrs. Roundtree’s claim is for loss of consortium.


author: Phipps, Judge.

text:
    A01A0810.
    OVERSTREET v. THE STATE.
    (551 SE2d 748)
   Phipps, Judge.

Thomas Overstreet was charged with two counts each of kidnapping and possession of a firearm during the commission of a crime and one count each of murder and armed robbery. A jury found him guilty of armed robbery and not guilty of the other charges. Over-street challenges the sufficiency of the evidence to support his conviction. He also claims that the trial court erred by denying his motion for severance, allowing into evidence statements by his co-defendant, denying three motions for mistrial, allowing the jury to change forepersons during deliberations, allowing the jury to continue deliberations after announcing they were deadlocked and asking the jury the status of its deliberations. Finding the evidence was sufficient to support Overstreet’s conviction and finding no reversible error, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Viewed in that light, the evidence showed that on May 19, 1994, Overstreet and Larry went to Ballard Truck & Tire Company on Old Savannah Road in Augusta. Soloman Walker and his employer, Ronald Ray, were working there at the time.

Walker testified that Overstreet and Larry walked past him and began talking to Ray about purchasing tires. When Ray told them the price of the tires, Overstreet reached into his pocket, took out two $20 bills and asked Larry if he had any money. Overstreet then pulled a silver gun, pointed it at Ray and said, “I’ll take what you got.” When Walker went over to Ray, Larry pulled a black gun on him, told him to get on the floor and demanded whatever cash he had. After Walker gave him the $2 or $3 from his pocket, Larry searched him for more but found none. Larry then forced him to the back of the store where he told him to lie facedown on the floor. Walker complied and while on the ground heard Overstreet asking Ray for his keys. Judging from the voices, Walker estimated that Overstreet and Ray must have been close to him at the time. When Walker heard gunshots a few minutes later, he jumped up and ran out of the store. As he ran, he could see Overstreet on Old Savannah Road and heard Larry calling for Overstreet not to leave him.

Walker brought Mike Ballard back to the store where they discovered Ray and Larry lying on the ground. Ray was dead, and Larry was bleeding from his stomach. A silver .25 millimeter semiautomatic pistol was found beside Ray, and a black .9 millimeter semi-automatic pistol was found near Larry. The investigators never found another gun that could be connected to Overstreet.

That same day, Walker gave a statement to police. In one part of his statement, Walker basically said that Overstreet could not have run as far as he had if he had been at the store when the gunshots were fired. He stated that the gun Larry had pulled on him was on the floor near Larry when he and Ballard reached the store.

Larry testified that he was shot three times and later underwent surgery. Richmond County Sheriffs Department Investigators Bunton and Pinkston interviewed Larry the day after the incident. They first obtained permission from his doctor who informed them that he was lucid. The investigators advised Larry of his Miranda rights and asked if he wanted to talk to them. Larry initially said, “no,” but when advised of the charges against him, changed his mind and agreed to the interview. The interview was taped and played to the jury at trial.

During the interview, Larry told the investigators that he and someone else went to look at tires and that while he was looking, Walker and Ray came running toward him. Although Larry never saw the gun, he guessed that his companion must have pulled a gun on them and that they were running from him. He said that Walker tried to grab him, so he pulled out his gun. Walker and Ray then both dropped to their knees, and Ray began shooting at him. At that point, Larry said, he fell to the ground and shot back. While this was happening, his companion was running across the street.

Several days later, Larry gave another taped statement to the investigators in which he told them that his companion at the tire store pulled his gun out first and then he pulled out his gun. He refused to tell them much else about the incident. At trial, Larry testified that he never saw Overstreet with a gun during the incident.

Within an hour of the shooting, investigators identified Over-street as a suspect. He turned himself in two days later.

1. Overstreet challenges the sufficiency of the evidence supporting his conviction for the armed robbery of Walker.

He claims that his conviction was based solely on Walker’s testimony and that the jury discounted most of Walker’s testimony in reaching its verdict on the other counts. But “[a] jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it.” The jury was authorized to believe Walker’s testimony that Overstreet was there while he was being robbed by Larry and that he fled from the scene thereafter. The jury may have refused to convict Overstreet for possession of a firearm during the commission of a crime because the investigators never located the gun he allegedly used. Even if the jury refused to convict because they disbelieved part of Walker’s testimony, that would not affect the jury’s reliance on the remainder of his testimony.

Overstreet claims that he could not be found guilty as a party to the crime of armed robbery because the jury acquitted him of the kidnapping and possession of a firearm charges relating to Walker. In essence, Overstreet argues that the verdicts are inconsistent. His argument fails because the inconsistent verdict rule in criminal cases has been abolished.

Finally, Overstreet argues that the evidence does not support his conviction as a party to the crime of armed robbery. Based on Walker’s testimony, the jury was authorized to conclude that Over-street was in Walker’s immediate presence when the robbery occurred. Although mere presence at the scene of a crime is insufficient to convict one as a party to the crime, “presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” Here, the jury was authorized to infer from Overstreet’s physical position during the robbery and his flight from the scene shortly thereafter that he was a participant in the crime.

2. Overstreet challenges the trial court’s denial of his motions for severance. He claims that the overwhelming evidence against Larry also was considered against him, resulting in his conviction.

A trial judge has discretion to grant severance based on the particular facts of the case and should do so whenever it appears necessary to guarantee the defendant a fair trial. When exercising its discretion, the trial court should consider such factors as

1. Will the number of defendants create confusion of the evidence and law applicable to each individual defendant? 2. Is there a danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court? 3. Are the defenses of the defendants antagonistic to each other or to each other’s rights?

If a defendant can show that failure to sever will prejudice him under one or more of these factors, his motion probably should be granted. But an appellate court will not find that the denial of a motion for severance is an abuse of discretion unless it appears that the defendant suffered prejudice that amounted to a denial of due process.

We do not find that Overstreet’s conviction more likely resulted from the evidence against Larry than from the evidence against him or that a spillover of the evidence against Larry prejudiced his right to a fair trial. By its verdict, the jury demonstrated clearly its ability to distinguish between the evidence against Overstreet and the evidence against Larry. We find no abuse of discretion.

3. Overstreet claims that the trial court erred by not charging the jury to consider the evidence and the application of the law as to each defendant individually.

The Supreme Court of Georgia has recognized that “it is the ‘better practice’ for a trial court to give a separate instruction which details the jury’s duty to consider each charge in the indictment against each defendant separately and which reminds the jury that the guilt of one defendant does not require the return of a guilty verdict against the other defendant.” To determine whether the failure to give such an instruction was harmful error, we must consider the charge as a whole.

Here, the trial court repeatedly referred to the defendants jointly, never informed the jury that it needed to make a separate determination of guilty or not guilty for each defendant and apparently presented the jury with a single verdict form consisting of an indictment only against Overstreet. The court did give an extensive charge on parties to a crime, including specific instructions that the jury would not be authorized to find a person guilty based on mere presence at the scene of a crime or mere association with other persons involved in the commission of the crime unless the evidence showed beyond a reasonable doubt that such person committed the alleged crime, participated in the alleged crime or aided and abetted in the actual perpetration of the crime. The court also made one separate reference to Larry when instructing on the lesser included offense of voluntary manslaughter.

We find that the charge as a whole did not sufficiently distinguish the defendants or make it clear to the jury that it was authorized to convict one defendant and acquit the other. “[W]hen an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless. [Cits.]” Although we do not approve the charge given by the court, we find that it was harmless in this case. The jury demonstrated its ability to distinguish the actions of each defendant and to convict one defendant of certain charges while acquitting the other of those same charges. Larry was convicted of all six counts of the indictment; Overstreet was convicted of only one count — armed robbery. We therefore find that the jury was not misled or confused by the deficient instructions.

4. Overstreet claims that the trial court erred by admitting Larry’s pretrial statements into evidence. He argues that because of his medical condition, Larry did not actually give a statement but merely responded to the investigator’s leading questions, thereby implicating Overstreet.

At the Jackson-Denno hearing, Bunton testified that during the interview Larry seemed to be in control of his mental faculties, was responsive to the questions asked and gave coherent responses. Before the interview, Bunton had asked Larry’s nurse if he had been given any medication that would affect his memory or his ability to speak with them. Bunton testified that the nurse assured him that Larry was lucid and would understand questions posed to him. After hearing the evidence and argument from counsel for all parties, the trial court found by a preponderance of the evidence that Larry’s statements were freely and voluntarily given and that he had been advised of his constitutional rights.

A trial court’s findings as to factual determinations and credibility relating to the admission of a statement will be upheld on appeal unless clearly erroneous. Based on our review of the Jackson-Denno hearing transcript, we find that the trial court did not err in finding the statements admissible.

5. Overstreet claims that the trial court erred by not granting his motion for mistrial following a poll of the jurors. During the poll, the twelfth juror stated that the verdict was her verdict in the jury room and that it was freely and voluntarily given, but that it was not still her verdict. At that point, the court instructed the jurors to return to the jury room and continue their deliberations. Larry’s counsel made a motion for mistrial, which was joined by Overstreet.

In Larry v. State, the Supreme Court of Georgia addressed this same issue and decided it adversely to Overstreet. We therefore find no error.

6. Overstreet argues that the trial court erred by denying his motion for mistrial when the twelfth juror and another juror asked to be excused from further consideration of the case after the initial verdict was rendered. After denying the jurors’ request, the court gave the jury an Allen-type charge and sent it back to deliberate.

This issue was also decided adversely to Overstreet in Larry v. State

7. Overstreet contends that the trial court erred by allowing the jury to change forepersons during deliberations.

In Larry v. State, the court held that allowing the jury to change forepersons during trial does not constitute reversible error where the defendant fails to articulate any harm from the substitution. Overstreet argues that he was harmed by the change because shortly thereafter the jury came back with a verdict that he claims was forced on certain members of the jury, as shown by the initial poll of the jurors in which one juror stated that the announced verdict was not her verdict.

The jury later returned with a unanimous verdict, and a subsequent poll of the jurors confirmed that the verdict was freely and voluntarily made by each of them. “The earlier voiced reservations of the two jurors did not prevent the final verdict from being free and voluntary and unanimous.” Thus, we find no harm to Overstreet by allowing the substitution.

8. Overstreet claims that the trial court erred by not declaring a mistrial when the jury announced that it was hopelessly deadlocked. Instead, the court responded to a question from the jury and allowed them to deliberate further.

This issue was decided adversely to Overstreet in Larry v. State.

9. Overstreet contends that the trial court erred by submitting the following questions to the jury: “Has the jury reached a verdict on the defendant Marquett Larry on all counts? Is the verdict unanimous? Has the jury reached a verdict on the defendant Thomas Edward Overstreet on all counts? Is the verdict unanimous?” After allowing defense counsel to review the questions in open court, with the defendants present, the court sent the questions to the jury approximately 40 minutes after they had announced that they were hopelessly deadlocked.

Decided July 2, 2001.

Ellis R. Garnett, for appellant.

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

After the jury has a case under consideration and indicates that it is unable to agree on a verdict, the trial court may inquire into the jury’s numerical division. The court here did not go even that far — it merely asked if a unanimous verdict had been reached as to each defendant. We find no error.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       His co-defendant, Marquett Larry, was charged with the same crimes and was convicted on all counts. Larry’s appeal to the Supreme Court of Georgia was decided in February 1996. Larry v. State, 266 Ga. 284 (466 SE2d 850) (1996). Overstreet’s motion for out-of-time appeal was granted in August 1999.

        Newman v. State, 233 Ga. App. 794 (1) (504 SE2d 476) (1998).

       The trial court conducted a Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), hearing before admitting Larry’s statements.

       The tape and transcript were redacted to remove any reference to Overstreet.

       (Citation omitted.) Drake v. State, 238 Ga. App. 584, 586 (1) (519 SE2d 692) (1999).

       Id.; see also Allen v. State, 203 Ga. App. 359, 360 (1) (416 SE2d 869) (1992).

        Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986); Allen, 203 Ga. App. at 360.

       (Citation and punctuation omitted.) Cummings v. State, 227 Ga. App. 564, 566 (489 SE2d 370) (1997).

       Id.

        Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975).

       Id.

       Id.

        Owen v. State, 266 Ga. 312, 314 (2) (467 SE2d 325) (1996).

       Compare Crawford v. State, 148 Ga. App. 523, 526 (251 SE2d 602) (1978).

        Nicholson v. State, 265 Ga. 711, 714 (3) (462 SE2d 144) (1995).

       Id.

       Compare id.; Wilkerson v. State, 244 Ga. App. 307 (535 SE2d 505) (2000); Nunez v. State, 237 Ga. App. 808, 810 (2) (516 SE2d 357) (1999).

        Barton v. State, 79 Ga. App. 380, 387-388 (2) (53 SE2d 707) (1949).

        LaRue v. State, 171 Ga. App. 371, 372 (319 SE2d 468) (1984).

       See id. at 372-373.

       266 Ga. at 287-288 (5).

        Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896).

       266 Ga. at 287-288 (5).

       Id. at 287 (4).

       (Citation omitted.) Id. at 287 (5).

       Id. at 287-288 (5).

        Gibson v. State, 272 Ga. 801, 802-803 (2) (537 SE2d 72) (2000).


author: Smith, Presiding Judge.

text:
    A01A0814.
    HOLLY v. SOUTH et al.
    (553 SE2d 159)
   Smith, Presiding Judge.

Jennifer Holly appeals from the trial court’s grant of the defendants’ motion to dismiss on the ground of res judicata her suit alleging intentional infliction of emotional distress. We find that the doctrine of res judicata does not apply, because the claim of intentional infliction of emotional distress against these defendants in Holly’s prior federal litigation was not dismissed on its merits. We therefore reverse the judgment below.

The record shows that Holly filed an action in the United States District Court for the Middle District of Georgia, Columbus Division, against her employer, Williams Beauty Salon, William South, and Edward McNeil, alleging gender discrimination and sexual harassment under Title VII of the Civil Rights Act of 1964, 42 USC § 2000e et seq. The complaint also included pendent state claims for intentional infliction of emotional distress and tortious assault and battery. The defendants filed a motion to dismiss the Title VII claims or, in the alternative, for summary judgment. They argued that Holly’s Title VII claims should be dismissed, because she had failed to file her complaint in timely fashion after receiving a “right to sue” letter from the Equal Employment Opportunity Commission. The district court, in a “Memorandum and Order on Defendants’ Motion for Summary Judgment” granted the motion for summary judgment, notwithstanding its explicit recognition that the motion was “not directed at the substantive allegations, but rather at the timeliness of her complaint.”

The ruling was affirmed on appeal to the Eleventh Circuit Court of Appeals, which noted that the district court’s judgment was supported on the alternative ground that Holly did not name the proper defendant and did not oppose the judgment on that ground on appeal. The Eleventh Circuit also noted in its opinion that the defendants’ “summary judgment motion was not directed at the substantive allegations of Holly’s complaint” and that her “complaint also alleged pendant [sic] state tort claims against the individual defendants,” which Holly had also abandoned in her Eleventh Circuit appeal because the district court did not address the dismissal of these claims.

Holly then filed a complaint in the State Court of Muscogee County against the two individual defendants, South and McNeil, alleging intentional infliction of emotional distress and tortious interference with her employment relationship. The defendants answered and again filed a motion to dismiss or, in the alternative, for summary judgment. In their motion, the defendants argued that Holly’s suit was barred by the doctrine of res judicata because of the grant of summary judgment in the prior federal action, which was “binding upon the parties as to all issues raised or which could have been raised.” In the alternative, the defendants argued that no genuine issue existed as to any material fact and they were entitled to summary judgment in their favor.

In an order that initially granted summary judgment to the defendants on the issue of tortious interference with employment and denied summary judgment on the issue of intentional infliction of emotional distress, the trial court went on to examine carefully the res judicata issue, eventually mooting its just-announced decisions by concluding that Holly’s state claims were barred by the prior federal action even though the judgment in that action did not reach the merits of the state claims. The trial court explicitly agreed with Holly that the federal district court did not reach the merits of her state claims. Nevertheless, relying on this court’s decision in Chrison v. H & H Interiors, 232 Ga. App. 45, 49 (1) (a) (500 SE2d 41) (1998), the trial court concluded that federal law, rather than Georgia law, controls the determination of whether the dismissal there was on the merits. The court also recognized that even if the doctrine of res judicata is not applied, the court must be convinced that the doctrine’s underlying purposes are advanced rather than defeated by declining to apply the doctrine. Pope v. City of Atlanta, 240 Ga. 177, 180 (1) (240 SE2d 241) (1977). Citing Fowler v. Vineyard, 261 Ga. 454, 458 (3) (405 SE2d 678) (1991), the trial court found that the primary purpose of res judicata is to promote judicial economy in claims for affirmative relief and that judicial economy would not be advanced by permitting Holly to pursue claims she had “abandoned” in federal court. The trial court then granted “the defendants’ motion to dismiss [Holly’s] claims for intentional infliction of emotional distress and tortious interference with her employment relationship.”

Holly contends this ruling was erroneous, and we agree. No question exists that the state tort claims were not decided on their merits in the federal court action. Both the district court and the Eleventh Circuit recognized that fact in their respective orders. Although the district court granted summary judgment, it is plain that with the dismissal of the Title VII claims, no pendent state jurisdiction existed in federal court. It is clear under Georgia law that when an order granting summary judgment in a prior suit is relied on for res judicata purposes, the court considering application of the doctrine must examine the underlying basis of the summary judgment. If the judgment actually was an adjudication on the merits, res judicata should be applied; but if the court’s examination shows that the summary judgment actually was not an adjudication on the merits, res judicata should not be applied. Robinson v. Starr, 197 Ga. App. 440, 441 (1) (398 SE2d 714) (1990).

We are instructed by Chrison, supra, and by the doctrine of full faith and credit to apply federal law to determine whether the previous decision was actually on the merits. We cannot conclude that it was. Designating the order as the grant of summary judgment was simply an error, at least as to the pendent state claims. Contrary to appellees’ contention, under federal law Holly’s state claims could not have been raised in the federal action and ruled upon there once the Title VII claims had been dismissed, because no basis existed for the federal court to exercise jurisdiction over the pendent state claims.

Decided July 2, 2001.

Maxine Hardy, for appellant.

Warren S. Shulman, for appellees.

The only way the district court could dismiss [Holly’s] suit with prejudice was if the court exercised its pendent jurisdiction, for a court that relinquishes jurisdiction cannot render a judgment that has preclusive effect other than on the merits of its relinquishing jurisdiction. [Cit.] ... A dismissal based on the district court’s relinquishing its pendent jurisdiction deprives any ruling that [it] may have made on the merits of a relinquished claim of preclusive effect. [Cit.]

Disher v. Information Resources, 873 F2d 136, 139-140 (7th Cir. 1989).

Since under federal law the prior adjudication of Holly’s state claims could not have been on the merits, the trial court erred in applying the doctrine of res judicata to grant the defendants’ motion to dismiss in the state court action.

Judgment reversed.

Barnes and Phipps, JJ, concur.

       The defendants also alleged that Holly had sued the wrong entity because at the time Holly was employed there, the shop was owned by Venture North, Inc.

       The trial court initially found that Holly’s claim for tortious interference with her employment relationship could not survive summary judgment because it lacked two essential elements: that the defendants were strangers to the employment relationship and that she suffered damages as a result of the interference. Holly appears to accept this reasoning regarding her claim for tortious interference with her employment relationship, since she appeals only from the trial court’s application of the bar of res judicata to her claim for intentional infliction of emotional distress.


text:
    A01A0820.
    MULVEY v. THE STATE.
    (551 SE2d 761)
   Smith, Presiding Judge.

James Chandler Mulvey and Danny Alonzo Anderson were indicted by a Gwinnett County grand jury on one count of trafficking in cocaine. Mulvey was tried separately and convicted by a jury. His motion for new trial was denied, and he appeals. Finding no error, we affirm.

1. Mulvey raises the general grounds, contending that the State failed to show the total weight of the cocaine seized. But the forensic chemist who analyzed the cocaine testified that it weighed 212.3 grams with 81 percent purity. While Mulvey contends that the packaging material may have been included in this weight, thus causing the weight of the cocaine to exceed the limit established by OCGA § 16-13-31 (a) (1) (B), no such evidence was adduced at trial. In fact, the forensic chemist testified that she removed the cocaine from its packaging to test it “and also to weigh it.”

Mulvey also contends the evidence demanded a directed verdict of acquittal on the basis of entrapment. Mulvey testified that he was “weakened . . . mentally” from caring for his elderly mother and “fell victim” when a confidential informant repeatedly “worried” him about finding a dealer who would sell her a substantial quantity of cocaine. But the confidential informant testified that Mulvey had paged her several times and when she returned the call he was “looking for some cocaine.” When she told him she did not have any because “there was a drought,” he told her that he might “be able to hook it up” with “somebody that was dealing in weight.” Mulvey did not purchase directly from this individual because he “did not sell to him in small quantities.” A few days later he called her back, asked her how much cocaine she wanted, and arranged the transaction. And Mulvey acknowledged that he was not threatened or bribed and that he “wanted this deal to go down” because he was to receive a quarter-ounce of the drug for his efforts in facilitating the transaction.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was convicted.

(Citations and punctuation omitted.) Slaughter v. State, 217 Ga. App. 449, 450 (1) (a) (459 SE2d 168) (1995). In this case the jury was authorized to reject the evidence presented by Mulvey in light of the countervailing testimony presented by the State, and his enumerations based on the general grounds are without merit. Id.

2. Mulvey complains of the method used for preparing the trial calendar and calling cases for trial in the Gwinnett Circuit, citing Cuzzort v. State, 271 Ga. 464 (519 SE2d 687) (1999), and Wooten v. State, 244 Ga. App. 101 (533 SE2d 441) (2000), rev’d, State v. Wooten, 273 Ga. 529 (543 SE2d 721) (2001). Mulvey contends that the assistant district attorney called this case for trial out of order and was without authority independently to calendar and call cases for trial.

In Cuzzort, the Supreme Court conducted an interlocutory review of the Lookout Mountain Judicial Circuit’s method of allowing the district attorney to set the calendar and assign cases to a particular judge. The Court concluded that the district attorney’s “ ‘choosing the judge to whom an action is to be assigned’ ” was improper, id. at 464-465 (2), and that the system also improperly allowed “the district attorney to call cases out of the order listed on the criminal trial calendar.” Id. at 465 (3).

In State v. Wooten, supra, the Supreme Court reversed this court’s holding in Wooten v. State, supra. The Supreme Court concluded that even though the Lookout Mountain Circuit’s method of allowing the district attorney to draw up a calendar and assign cases was erroneous, it was not an error of constitutional magnitude. State v. Wooten, supra, 273 Ga. at 532 (2). Moreover, in light of the considerable discretion reposed in the district attorney by law and the intervening actions of trial court and jury, the error did not require reversal of Wooten’s conviction because it was “highly improbable that the error in the circuit’s assignment system contributed to the jury’s verdict of guilty.” Id. at 533 (3).

Here, in response to Mulvey’s objection, the trial court read into the record and attached to the transcript as Court Exhibit 1 an order entered on March 2, 2000, approximately six weeks before the trial of this case. The order amended the standing order of the Gwinnett Judicial Circuit for the preparation and calling of criminal trial calendars. This order expressly states that it was entered in response to Cuzzort, supra, and orders the district attorney

to prepare criminal trial calendars which shall be reflective of and consistent with the then-pending criminal docket of each judicial division of the Gwinnett Superior Court. The cases thereon shall be called in the order in which they stand on each division’s docket, unless the defendant is in jail or otherwise in the sound discretion of the Court. . . . No case shall be postponed or removed from the calendar except by leave of the Court.

The trial court further noted for the record that the calendar had been called in open court and that every case was addressed and accounted for in the order in which it appeared on the calendar. Scanning the calendar itself, the trial court noted that the cases “are accounted for or continued for good cause shown, have been approved as continued or subject to a plea to be taken or a motion to suppress. . . . [T]he Mulvey case is in order to be reached.” The court also pointed out that Mulvey’s case had been “called for trial last month . . . and it was continued for good cause shown at the request of the defense over objection of the State, and it was announced to be ready for trial this particular week.” Under these circumstances, Mulvey has failed to show any violation of the rule established in Cuzzort, supra, and this enumeration of error is without merit.

3. Mulvey also enumerates as error the trial court’s sua sponte examination of a potential juror for bias and her ultimate excusal for cause. During jury selection, the trial court recognized Juror No. 28 as an individual who had posted bond for her son on a drug offense. The son was a fugitive for several years but eventually was apprehended and pled guilty. Anticipating that she “might feel uncomfortable about serving,” the trial court questioned her out of the presence of the jury pool and allowed Mulvey’s counsel to question her. The juror stated, “I just don’t feel up to it,” and elaborated, “I just don’t — don’t feel like I could be fair” and that she “couldn’t go against” the defendant, because her son was in custody. Questioned by Mulvey’s counsel, she. indicated that her experience would prevent her from listening to the evidence and the law in the case and would prevent her from reaching a verdict. Saying that it was “well satisfied this lady . . . has good cause to have reservations,” the trial court excused her for cause.

“The trial court may, on its own motion, and in the exercise of sound discretion, excuse an incompetent juror at any time before evidence is given.” Norris v. State, 250 Ga. 38, 39 (1) (295 SE2d 321) (1982); see also Nichols v. State, 186 Ga. App. 314, 315 (1) (367 SE2d 266) (1988). “In determining whether a juror can impartially decide a case in accordance with the evidence presented during the trial, the trial court is given the utmost discretion and will not be reversed absent a manifest abuse of that discretion.” (Citation omitted.) Scott v. State, 219 Ga. App. 906, 907 (1) (467 SE2d 348) (1996). Moreover, “[a] trial judge should err on the side of caution by dismissing, rather than trying to rehabilitate, biased jurors.” Walls v. Kim, 250 Ga. App. 259, 260 (549 SE2d 797) (2001). The juror’s testimony that she was biased in favor of one of the parties on account of her personal experiences justified a challenge for cause. Nichols, supra at 314-315; see also OCGA § 15-12-164. The trial court did not abuse its discretion in doing so.

4. In two enumerations of error, Mulvey complains of the testimony of an undercover police officer regarding the drug transaction and Mulvey’s conduct in connection with it. First, Mulvey contends the officer impermissibly stated his opinion that Mulvey was worried about the officer’s unexpected presence at the scene of the transaction because “he really wanted the deal to take place and he was just concerned that the person that was bringing the cocaine would — you know, would feel uncomfortable and turn around and walk off, you know.” But “[e]vidence is harmless where admissible evidence of the same fact is before the jury.” (Citations and punctuation omitted.) Maher v. State, 216 Ga. App. 666, 667 (1) (455 SE2d 377) (1995). The officer had already given similar testimony, saying, “I think he was concerned that maybe some type of violence or something would take place or either the guy just may be uncomfortable and didn’t want to do the deal.” He had also given the facts from which he drew his conclusions, including Mulvey’s protests that “ T don’t know this guy’ ” and that he did not know if he should call the supplier or not, “because he’s not going to like the fact that I was there.” “The questions and answers that followed the overruling of defendant’s objection were not substantially different. Consequently, any error in permitting the state to question the witness on this topic was harmless.” (Citations and punctuation omitted.) Richardson v. State, 233 Ga. App. 233, 238 (3) (504 SE2d 65) (1998).

Second, Mulvey contends the trial court erred in allowing the officer to testify, “Í think he pretty much arranged it and said, T know where you can get drugs if you want some.’ ” This, he contends, amounted to speculation. But Mulvey again ignores the testimony elicited before this statement and the context in which it occurred. The officer had already testified in detail regarding his qualifications as a police officer, the typical investigation methods and work of a drug enforcement officer, and his involvement in the transaction in question here. He testified at length to his conversations and interaction with Mulvey from the time he and the confidential informant arrived at Mulvey’s apartment. During this testimony, in response to an objection from Mulvey, the trial court stated that the officer had “laid a foundation, Counsel, in his line of work. The jury can weigh that, whatever weight and credit they see fit to give it.” Mulvey has not enumerated this ruling as error. “Matters not enumerated as error will not be considered on appeal.” (Citations and punctuation omitted.) Smith v. State, 224 Ga. App. 819, 821 (3) (481 SE2d 896) (1997).

At the time of the response Mulvey enumerates as error, the State was examining the officer regarding the participants in the transaction and “what their role is in sort of the drug hierarchy.” The officer described the manner in which such a drug transaction is usually conducted and the usual participants and their typical roles. He went on to testify specifically: “When I walked into the apartment, you know, I wanted drugs and Mr. Mulvey knew the people to call. . . . He called Mr. Anderson. Mr. Anderson brought the drugs over.” An audio surveillance tape of the entire conversation was then identified, admitted into evidence, and played for the jury. The officer was an active participant in the drug transaction in question and conversed with Mulvey before and during the transaction. His testimony regarding whether Mulvey arranged the transaction was not speculation but was based upon his personal observations and communications with Mulvey as well as his training and experience as a drug enforcement officer. See Felder v. State, 270 Ga. 641, 645 (7) (514 SE2d 416) (1999).

Decided July 2, 2001.

Darel C. Mitchell, for appellant.

Daniel J. Porter, District Attorney, Shampa Banerji, Assistant District Attorney, for appellee.

While Mulvey argues on appeal that this testimony also went to the ultimate issue in the case and usurped the province of the jury, he did not state this as a basis for his objection at trial. Although he did state this basis for an earlier objection to other testimony, he did not enumerate that testimony as error. “Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.” (Citations and punctuation omitted.) Williams v. State, 234 Ga. App. 191, 195 (6) (506 SE2d 237) (1998).

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       Mulvey also does not enumerate this testimony as error, although he interposed an objection at trial.


author: Eldridge, Judge.

text:
    A01A1015.
    ROBERSON v. OCWEN FEDERAL BANK FSB.
    (553 SE2d 162)
   Eldridge, Judge.

This a pro se appeal from the grant of summary judgment on an admitted credit card debt, which was not in dispute. We affirm.

On September 1, 1989, Madia W. Roberson applied for and received a First Union National Bank MasterCard credit card. As of October 10,1998, Roberson owed interest and principal of $12,779.58 as shown on her last statement, which remained unpaid. On October 19, 1999, Ocwen Federal Bank, assignee of this account, sued Roberson for the unpaid balance, interest, and attorney fees. In her amended answer, defendant admitted to owing this debt. When the plaintiff brought its motion for summary judgment, Roberson introduced no evidence in opposition, not even her own affidavit. All that the defendant did was file a motion to strike the affidavit of plaintiff’s vice president, because she alleged that his signature was a stamp and that the affiant could not testify to these facts of his own knowledge. The trial court denied the motion to strike and granted summary judgment.

1. Defendant’s first enumeration of error is that the trial court erred in granting summary judgment.

(a) Defendant admitted that she entered into the credit card agreement and that she owed the money plus interest. Plaintiff, through its vice president, explained that the original written and executed credit card agreement was no longer available for introduction into evidence, because in the passage of over ten years and the assignment of the account, the original written agreement had been destroyed; the content of the original agreement was established through the unexecuted form as identical in terms to the missing original agreement. Such blank form credit card agreement and the testimony regarding the original agreement constituted admissible secondary evidence, because it was relevant; the existence of the original was established as an executed written agreement; reasonable diligence was exercised to find the original; the absence of the original was accounted for; and the blank form was established as the same as the executed destroyed agreement. OCGA §§ 24-5-1 through 24-5-4; Clark v. State, 271 Ga. 6, 11 (6) (515 SE2d 155) (1999); White v. Dilworth, 178 Ga. App. 226, 227 (2) (342 SE2d 709) (1986). In this case, plaintiff explained that, through the passage of time, this old agreement had been destroyed, which satisfies the requirement that the agreement be adequately accounted for by the plaintiff prior to the introduction of secondary evidence. Clark v. State, supra at 11; White v. Dilworth, supra at 227. A party can prove by testimony and other secondary evidence the existence and terms of a written executed contract when the loss or destruction of the original written contract has been sufficiently accounted for to establish the contract and the reason for its unavailability after the exercise of diligence to produce it. Gen. Ins. Svcs. v. Marcola, 231 Ga. App. 144, 148 (5) (b) (497 SE2d 679) (1998); Equifax Svcs. v. Examination Mgmt. Svcs., 216 Ga. App. 35, 38 (1) (453 SE2d 488) (1994). The balance due on an account may be testified to by a witness without the introduction of the supporting documents as secondary evidence; however, in this case the last statement and demand for payment to the defendant was introduced into evidence as an exhibit to the affidavit as a business record exception to the hearsay rule. Professional Ins. Svcs. v. Sizemore Elec. Co., 188 Ga. App. 463, 464 (1) (373 SE2d 276) (1988). However, although the defendant objected to the admission of the affidavit in support of plaintiff’s motion for summary judgment, no objection to the admission of the affidavit and form credit card agreement was made before the trial court on the best evidence grounds. Failure to raise such objection waives such issue. Id. at 463.

(b) Plaintiff proved the written executed agreement, terms of the agreement, the balance due, the interest, and attorney fees; defendant admitted the agreement and the amounts due. Further, defendant failed to come forward with any evidence to create a material issue of fact either as to liability or damages. See Adamson Co. v. Owens-Illinois Dev. Corp., 168 Ga. App. 654, 657 (309 SE2d 913) (1983). Plaintiff is entitled to summary judgment from the entire evidence record. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2. Defendant contends that the trial court erred in denying her motion to strike the affidavit in support of plaintiff’s motion for summary judgment. We do not agree.

Defendant filed a motion to strike the affidavit under OCGA § 9-11-12 (f). Motions to strike seek to purge from the pleadings or affidavit only insufficient defenses or matter that is redundant, immaterial, impertinent, or scandalous. Guthrie v. Bank South, Douglas, 195 Ga. App. 123, 125-126 (4) (393 SE2d 60) (1990) (physical precedent only); Northwestern &c. Ins. Co. v. McGivern, 132 Ga. App. 297, 301-304 (3) (208 SE2d 258) (1974).

Affidavits must conform to OCGA § 9-11-56 (e), which is a codification of the common law requirements as to affidavits. McPherson v. McPherson, 238 Ga. 271, 272 (1) (232 SE2d 552) (1977). A complete affidavit must satisfy three essential elements: (a) a written oath embodying the facts as sworn to by the affiant; (b) the signature of the affiant; and (c) the attestation by an officer authorized to administer the oath that the affidavit was actually sworn by the affiant before the officer. Glenn v. MARTA, 158 Ga. App. 98, 99 (279 SE2d 481) (1981). Affidavits that fail to comply or to contain the essential elements must be disregarded by the trial court, and only such portions as comply are considered. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 645-646 (3) (171 SE2d 782) (1969). Only such portion of an affidavit that sets forth facts that are admissible in. evidence can be considered. Oglesby v. Farmers Mut. Exchange, 128 Ga. App. 387, 389 (6) (196 SE2d 674) (1973). A motion to strike the affidavit in support of a motion for summary judgment, if properly and timely made, is a proper vehicle to attack the affidavit; however, it should specifically object to the material that is inadmissible, because the trial court must consider the admissible portions of the affidavit. Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 439-440 (4) (280 SE2d 842) (1981); Ford v. Ga. Power Co., 151 Ga. App. 748 (2) (A) (261 SE2d 474) (1979); Vaughn & Co. v. Saul, 143 Ga. App. 74, 78 (3) (237 SE2d 622) (1977).

An affidavit must be sworn to in person before a notary public or other officer empowered to administer oaths for the affidavit to be valid and have the affiant’s signature attached. Sambor v. Kelley, 271 Ga. 133, 134 (1) (518 SE2d 120) (1999); Schmidt v. Feldman, 230 Ga. App. 500, 501 (1) (497 SE2d 23) (1998); Redmond v. Shook, 218 Ga. App. 477-478 (1) (462 SE2d 172) (1995). To attack an affidavit on improper execution grounds, there must be evidence either from the witness or notary or from the face of the affidavit showing that the execution was not made in the notary’s physical presence. Sambor v. Kelley, supra at 133; Schmidt v. Feldman, supra at 501; Redmond v. Shook, supra at 477. However, in this case, the trial court made a factual determination that the affidavit filed had, in fact, been properly executed by Arthur J. Castner before a notary public. Since factual determinations made by the trial court as trier of fact can be reversed only if there is no evidence to support such finding, then this Court must affirm the trial court, because the affidavit appears to be signed rather than merely stamped as contended by the defendant without evidence to support such allegation. Thus, there was some evidence to support such determination of fact, and absent legal error we will not interfere with the trial court’s determination. Wilkinson v. Udinsky, 242 Ga. App. 464 (1) (530 SE2d 215) (2000).

Decided July 2, 2001.

Madia Roberson, pro se.

Also defendant contends that Castner lacked personal knowledge upon which to base the affidavit. The affiant must have personal knowledge for the affidavit to have probative value. OCGA § 9-11-56 (e); Worley v. Pierce, 211 Ga. App. 863, 865 (2) (440 SE2d 749) (1994); Morris-Bancroft Paper Co. v. Coleman, 188 Ga. App. 809, 810-811 (374 SE2d 544) (1988). Generally, the mere statement of the affiant that the testimony given comes from personal knowledge is sufficient. Whitaker v. Trust Co. &c., 167 Ga. App. 360, 361 (2) (306 SE2d 329) (1983). However, as in this case, the affiant clearly demonstrated personal knowledge rooted in the content of the affidavit. Edwards v. Campbell Taggart Baking Cos., 219 Ga. App. 806, 808 (2) (466 SE2d 911) (1996).

As vice president of the plaintiff, Castner testified that he was familiar with the books and records of the bank and, from such records, demonstrated a basis to have personal knowledge that the original agreement was unavailable, because it had been destroyed in the distant past; that there had been a written contract; that the terms of such contract were identical to the form agreement attached; that the last statement was sent; that the balance remained unpaid; and that interest and attorney fees were due and payable. The trial court found that the affiant had demonstrated personal knowledge and denied the motion.

“A trial court’s decision overruling an objection to tendered evidence is a matter resting within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion.” Clauss v. Plantation Equity Group, 236 Ga. App. 522, 523 (1) (512 SE2d 10) (1999).

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

Frederick J. Hanna & Associates, Elizabeth C. Whealler, for appellee.


text:
    A01A1169.
    SPANN v. THE STATE.
    (551 SE2d 755)
   Eldridge, Judge.

A Dougherty County jury convicted defendant Gregory Spann of one count of criminal damage to property in the second degree and one count of battery. OCGA § 16-7-23 (a) (l). The superior court sentenced him as a recidivist to concurrent sentences of five years and twelve months confinement to serve, respectively. Defendant appeals, contending that the evidence was insufficient to support his conviction for criminal damage to property in the second degree for lack of competent evidence valuing damages as in excess of $500. We disagree and affirm.

Reviewed in the light most favorable to the verdict, Singleton v. State, 231 Ga. App. 694 (1) (500 SE2d 411) (1998), the evidence shows that in the late afternoon of October 26,1998, in the residence he shared with his girlfriend, the defendant and his victim argued over money while playing, cards. The victim left the residence thinking the issue closed, returning after dark when he received a call telling him that his car, a purple Oldsmobile 98, had been vandalized. After seeing the damage to his vehicle, the victim called the police.

At trial, the investigating officer estimated the value of the damage done as in excess of $500, his testimony indicating that a cinder block had been thrown through the rear window of the victim’s car; that the driver’s side window had been broken out in its entirety; that the passenger’s side window had been significantly chipped; that the passenger’s door had been dented and its paint scratched; and that one of the front tires had been cut. Police photographs of the damage introduced by the State visually depicted the extent of such damage.

Through counsel’s closing argument, the defendant admitted the damage done. In other testimony, the victim indicated that he had purchased replacement windows for approximately $32; that he could obtain replacement tires for $20 each; and that he had not had the car repaired.

Under OCGA § 16-7-23, the value of damage to the property of another may be established by several means. A lay witness may give opinion testimony as to such value, subject to stating the factual predicate on which the opinion is based or otherwise showing that he or she had the opportunity to form a reliable opinion. Yarber v. State, 144 Ga. App. 781 (242 SE2d 372) (1978); In the Interest of A. F., 236 Ga. App. 60 (1) (510 SE2d 910) (1999). The cost of an item may be sufficient to show the value of damage to everyday items if supported by other evidence showing the before and after condition of the item. Id. Compare Pate v. State, 158 Ga. App. 395, 396 (2) (280 SE2d 414) (1981) (cost or purchase price evidence alone insufficient to show damage). “Evidence of the cost to repair an item may also suffice. [Cits.]” In the Interest of A. F., supra.

Decided July 2, 2001.

John P. Cannon, for appellant.

Herein, evidence of damage as in excess of $500 was established by the opinion testimony of the investigating police officer testifying as a lay witness and the photographs he took at the scene. The latter, depicting in graphic detail extensive damage to the victim’s car, fully corroborated the officer’s estimate of the value of the damage done to the victim’s vehicle.

On appeal, the evidence must be viewed to uphold the verdict; the appellant is no longer presumed innocent; and the evidence is reviewed for sufficiency alone, the court neither weighing the evidence nor determining witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737) (1990). Further, to support a verdict, “circumstantial evidence must exclude only reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. [Cits.]” Smith v. State, 257 Ga. 381, 382 (359 SE2d 662) (1987). Whether circumstances are sufficient to exclude every reasonable hypothesis except that of the accused’s guilt is a jury question. Brown v. State, 245 Ga. App. 706, 708 (1) (538 SE2d 788) (2000). Only in the event the evidence is unsupportable as a matter of law may a jury’s verdict be disturbed, whether the evidence be circumstantial or otherwise. Id.

We decline to disturb the jury’s verdict in this case. The evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of criminal damage to property in the second degree as alleged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

Kenneth B. Hodges III, District Attorney, Leisa Meadows, Assistant District Attorney, for appellee.

       OCGA § 16-7-23 (a) (1) provides: “A person commits the offense of criminal damage to property in the second degree when he . . . [intentionally damages any property of another person without his [or her] consent and the damage thereto exceeds $500.”


text:
    A01A1508.
    TAYLOR v. POWERTEL, INC.
    (551 SE2d 765)
   Eldridge, Judge.

Bruce Taylor, a Savannah, Chatham County, Georgia, subscriber, sued his digital phone service provider, Powertel, Inc., a corporation principally based in Jacksonville, Duval County, Florida, for conversion for the inclusion of amounts attributable to taxes from Jacksonville, Duval County, on his monthly cellular phone bill. The trial court granted summary judgment as to his claim for punitive damages and tried his claim for conversion before a jury. At the close of plaintiff’s case, Powertel moved for a directed verdict for the claim of conversion, which the trial court granted. Plaintiff appeals these rulings of the trial court. We affirm, because this action should have been an action for money had and received and not for the conversion of money for the following reasons.

In October 1997, plaintiff contracted with Powertel for cellular phone service in Chatham County, Georgia. On receipt of his first bill, plaintiff saw what he believed to be excess taxes included within the total service bill. Plaintiff immediately complained to Powertel’s customer service, demanding an explanation of these taxes and an adjustment of his account. The Powertel customer service representative told the plaintiff that the “[t]axes are what they are” and that he would have to pay the taxes as part of the total bill. Plaintiff paid the first bill, but the second bill contained similar high taxes. Therefore, plaintiff called again and was told that he must pay such charges as part of the bill. After receiving four bills with the high tax charges and receiving the same response from Powertel, plaintiff terminated the cellular phone service. In November 1998, Powertel reimbursed plaintiff the amount of the total bill that he paid for the taxes of $215.79 on his four phone bills, but he refused to accept the amount.

1. Plaintiff contends that the trial court erred in granting summary judgment as to his claim for punitive damages. We do not agree.

(a) Punitive damages under OCGA §§ 51-12-5.1 and 13-6-10 are not recoverable for breach of contract actions. Trust Co. Bank v. C & S Trust Co., 260 Ga. 124, 126 (1) (390 SE2d 589) (1990); Bennett v. Assoc. Food Stores, 118 Ga. App. 711, 716 (2) (165 SE2d 581) (1968). However, if the breach of contract would also constitute a breach of a public duty as an intentional tort or such entire want of care which would raise the presumption of conscious indifference to consequences, then punitive damages may be recovered as tort, not contract, damages. Walton Elec. Membership Corp. v. Snyder, 270 Ga. 62, 63-64 (2) (508 SE2d 167) (1998); Wynn v. Arias, 242 Ga. App. 712, 718 (4) (531 SE2d 126) (2000); see also Buckley v. Turner Heritage Homes, 248 Ga. App. 793, 796 (4) (547 SE2d 373) (2001).

(b) Actions for trover or for conversion are intentional torts and as such come within OCGA § 51-12-5.1 (b). See Grant v. Newsome, 201 Ga. App. 710 (1) (411 SE2d 796) (1991); Sisk v. Carney, 121 Ga. App. 560, 564 (5) (174 SE2d 456) (1970). Therefore, punitive damages are recoverable where such torts can be proven and the statutory requirements have been satisfied for such damages. OCGA § 51-12-5.1.

(c) Defendant’s evidence showed that through computer error all Powertel customers were charged for such Duval County taxes; that all taxes collected were paid to the respective governmental entities; and that Powertel attempted to reimburse the plaintiff, but plaintiff refused the check for $215.79. Plaintiff’s only evidence as to culpable conduct was that other Powertel customers were similarly erroneously charged the taxes and that there was a delay of several months in making such reimbursement; such rebuttal evidence failed to show that at trial there could be proof to authorize such damages by clear and convincing evidence that the defendant’s conduct was wilful, malicious, fraudulent, wanton, oppressive, or evidenced that want of care which could be presumed to be consciously indifferent to the consequences. McDaniel v. Elliott, 269 Ga. 262, 263 (1) (497 SE2d 786) (1998); Bartja v. Nat. Union Fire Ins. Co. &c., 218 Ga. App. 815, 818 (4) (463 SE2d 358) (1995). For punitive damages to be recoverable as damages, there must exist some evidence of culpable tortious conduct, and such culpable conduct must be of such nature to justify the imposition of punitive damages to penalize, punish, or deter such conduct. Unified Svcs. v. Home Ins. Co., 218 Ga. App. 85, 87-89 (4) (460 SE2d 545) (1995). The culpable conduct must be more than negligence, even gross negligence. Coker v. Cutler, 208 Ga. App. 651, 652 (431 SE2d 443) (1993). In this cáse, plaintiff failed to come forward with some evidence that would indicate that at trial he could meet the intermediate standard of proof by clear and convincing evidence, creating a jury issue, because defendant, in support of its motion, demonstrated the complete absence of evidence of such culpability in the record. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In reviewing the grant of summary judgment on punitive damages, this Court must first determine if there existed any facts creating a jury question as to the culpable nature of the tortious conduct for the imposition of punitive damages. Second, this Court must determine whether the evidence in the record on the motion indicates that at trial there could be presented evidence to satisfy the intermediate standard of proof by clear and convincing evidence. “[I]t is our appellate responsibility to determine whether there is any evidence to support the [trial court’s determination that the evidence of aggravated conduct failed to be] clear and convincing. In this regard, it remains the rule that something more than the mere commission of a tort is always required for punitive damages.” (Citations and punctuation omitted.) Kodadek v. Lieberman, 247 Ga. App. 606, 610 (2) (545 SE2d 25) (2001). As in this case, where the record indicates that at trial, the plaintiff would not be able to establish by clear and convincing evidence culpable tortious conduct, authorizing the imposition of punitive damages, summary judgment was appropriate on such issue of damages. Id.; see also OCGA § 51-12-5.1; Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248, 255 (3), n. 2 (461 SE2d 877) (1995), aff’d in part and rev’d in part, Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226 (476 SE2d 565) (1996).

2. Plaintiff contends that the trial court erred in directing a verdict on his claim for conversion. We do not agree. “To make out a prima facie case, in an action for damages for conversion of personal property, the plaintiff must show title to the property, possession by the defendant, demand for possession, and refusal to surrender the property, or an actual conversion prior to the filing of the suit.” Atlantic Coast Line R. Co. v. McRee, 12 Ga. App. 137 (76 SE 1057) (1913). Any distinct act of dominion and control wrongfully asserted over another’s personal property, in denial of his right or inconsistent with his right, is a conversion of such property. Lovinger v. Hix Green Buick Co., 110 Ga. App. 698, 699 (1) (140 SE2d 83) (1964). However, when someone comes into lawful possession of personal property, in the absence of a demand for its return and a refusal to return the personal property, there is no conversion. McDaniel v. White, 140 Ga. App. 118, 119 (2) (230 SE2d 500) (1976). Since an action for conversion is a suit for money damages for the personal property converted, then such suit constitutes the election of money damages rather than recovery of the personal property in a trover action. OCGA §§ 44-12-151; 44-12-152; 51-10-1; Livingston v. Epsten-Roberts Co., 50 Ga. App. 25, 27-29 (1) (177 SE 79) (1934). “The statutory trover action in Georgia embraces the common law actions of trover, detinue, and replevin. In all of these, right of immediate possession means a right to possession existing at the time the suit is instituted.” Jones v. Brown, 108 Ga. App. 776, 780 (2) (134 SE2d 440) (1963). However, the plaintiff has failed to prove that he had the immediate right of possession of specific property, a sum certain in a specific and identifiable sum of money.

Tangible personalty or specific intangible property may be the subject for an action for conversion, but as fungible intangible personal property, money, generally, is not subject to a civil action for trover with an election for damages for its conversion. See generally Jennette v. Nat. Community Dev. Svcs., 239 Ga. App. 221, 225 (4) (520 SE2d 231) (1999); William Goldberg & Co. v. Cohen, 219 Ga. App. 628, 639-641 (7) (466 SE2d 872) (1995); Jones v. Turner Broadcasting System, 193 Ga. App. 768, 769 (389 SE2d 9) (1989).

While money constitutes personal property, money is intangible personalty that is fungible, because it belongs to a class of property which cannot be differentiated by specific identification unless there has been created a specific fund that has been set aside from other money. Thus, there can be no conversion action for money damages for money, because generally, money is not subject to a civil action for conversion. Branch v. Alliance Syndicate, 220 Ga. App. 561, 564 (2) (469 SE2d 807) (1996). There exists an exception for the conversion of money; such money must comprise a specific, separate, identifiable fund to support an action for conversion. See Grant v. Newsome, 201 Ga. App. 710 (1) (411 SE2d 796) (1991); Carter v. Hornsby, 68 Ga. App. 424, 427-428 (23 SE2d 95) (1942). “[A]n action for conversion will not lie for the recovery of money [; however, there exists an] exception to the general rule, that is, where the allegedly converted money is specific and identifiable such as insurance premiums earmarked for remittance to the insured. Unified Svcs. v. Home Ins. Co., [supra at 89 (4) (c)].” Branch, supra at 564.

In this case, the plaintiff has failed to show that the portion of the total telephone bill specifically attributable to taxes comes within this exception and that these sums constituted an identifiable fund belonging to him to which he had an immediate right of possession. Branch, supra. Therefore, plaintiff has failed to show that his claim for reimbursement of money paid for taxes as part of his monthly bill is the kind of personalty that he could sue for the loss of in an action for conversion and that he has a right of possession in specific money. Id. In short, plaintiff should have sued for money had and received as money owed to him, not conversion of a specific fund of money to which he had an immediate right of possession.

Under the common law doctrine of money had and received, recovery is authorized against one who holds unspecified sums of money of another which he ought in equity and good conscience to refund. OCGA § 23-2-32 (b); Decatur Fed. Sav. &c. Assn. v. Gibson, 268 Ga. 362, 363 (1) (489 SE2d 820) (1997); Gulf Life Ins. Co. v. Fol som, 256 Ga. 400, 402 (349 SE2d 368) (1986); Wyatt v. Hertz Claim Mgmt. Corp., 236 Ga. App. 292-293 (1) (511 SE2d 630) (1999); Intl. Indem. Co. v. Bakco Acceptance, 172 Ga. App. 28, 32 (2) (322 SE2d 78) (1984); Barton & Ludwig, Inc. v. Thompson, 170 Ga. App. 187, 188 (316 SE2d 786) (1984). Such action is a legal action based upon equitable principles for implied assumpsit as a substitute for suit in equity. J. C. Penney Co. v. West, 140 Ga. App. 110, 111-112 (2) (230 SE2d 66) (1976); C & S Nat. Bank v. Youngblood, 135 Ga. App. 638, 639 (219 SE2d 172) (1975); James Talcott, Inc. v. Roy D. Warren Commercial, 120 Ga. App. 544, 545-546 (1) (171 SE2d 907) (1969). An action for money had and received sounds in assumpsit and grows out of privity of contract, express or implied; but absent an actual contractual relationship, the law will imply a quasi contractual relationship to support the action. Fain v. Neal, 97 Ga. App. 497, 498-499 (103 SE2d 437) (1958); Stein Steel &c. Co. v. K & L Enterprises, 97 Ga. App. 71, 73 (102 SE2d 99) (1958). The elements of such action are: a person has received money of the other that in equity and good conscious he should not be permitted to keep; demand for repayment has been made; and the demand was refused. See Fain v. Neal, supra at 497-499.

Decided July 2, 2001.

Savage, Turner, Pinson & Karsman, Brent J. Savage, Robert B. Turner, C. Dorian Britt, for appellant.

Arnall, Golden & Gregory, Scott E. Taylor, Aaron M. Danzig, for appellee.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur. Andrews, P. J., disqualified.

        Reis v. Ralls, 250 Ga. 721, 723 (1) (301 SE2d 40) (1983) (OCGA § 11-9-106, UCC security interest in intangibles, i.e., money); Tax Assessors of Gordon County v. Chitwood, 235 Ga. 147, 152 (218 SE2d 759) (1975) (classes of property for taxation, intangibles. Ga. Const, of 1983, Art. VII, Sec. I, Par. Ill (b) (1)).


text:
    A01A0154.
    LATIMORE v. DEPARTMENT OF TRANSPORTATION.
    (552 SE2d 439)
   Phipps, Judge.

Jessie Latimore filed a negligence suit against Alton Norris and the Georgia Department of Transportation (DOT). He claimed that on September 30, 1996, as he attempted to walk across a street, Norris, a DOT employee, backed a DOT vehicle into him. Norris was subsequently dismissed from the lawsuit, and after a trial, the jury returned a verdict in DOT’s favor. Latimore appeals, contending that the trial court erred in admitting impeachment evidence and in responding to a question from the jury. Finding no error, we affirm.

1. Latimore contends that the trial judge erred in admitting impeachment evidence against his treating physician, arguing that at the time the impeachment attempt was made, the evidence was not probative of any material issue. Control of the nature and scope of cross-examination of a witness is a matter within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.

After the court qualified him as an expert “in treating traumatic injuries such as traumatic myositis and arthritis,” the physician testified as to Latimore’s condition, treatment, medical records, and medical expenses. He stated that he had diagnosed Latimore as having traumatic myositis and aggravation to his arthritis. On cross-examination, when DOT asked the physician whether his medical license had ever been suspended or placed on probation, the physician answered that it had not. DOT then sought to impeach him by introducing certified copies of documents related to proceedings before the Composite State Board of Medical Examiners showing that the physician’s license had been suspended and placed on probation. Latimore argues that the court had already qualified the physician as an expert without objection from DOT, and thus any issue of whether his license had been suspended or placed on probation was not probative of or material to the issues of the alleged negligence or damages.

While a witness may not be impeached because of a discrepancy as to a wholly immaterial matter, a witness may be impeached on a collateral issue which is indirectly material to the issue in the case. A review of the documents introduced by DOT reveals that each concerned the physician’s medical treatment of patients and that one of the documents included assertions that in treating four patients with myositis and/or arthritis, the physician had “failed to perform appropriate testing and evaluation,” and “failed to maintain medical records adequate to furnish documentary evidence of the course of the patient’s medical evaluation, treatment and response.” Here, the impeachment evidence that contradicted the physician’s testimony examined weaknesses in the physician’s credentials and competency, thus challenging his credibility and opinion as to Latimore’s condition and the damages sought, clearly material, matters in this case. We conclude that the trial court did not abuse its discretion in admitting the impeachment evidence.

Decided July 3, 2001.

Clifton Boone, for appellant.

Thurbert E. Baker, Attorney General, Allyson G. Krause, Assistant Attorney General, for appellee.

2. Latimore contends that the trial judge erred in his response to a question from the jury. During deliberations, the jury returned with the question, “If we can’t agree that Mr. Norris was negligent in operating the car, can we find for Mr. Latimore?” The judge replied, “The answer is no. You have to find him negligent in order for Mr. Latimore to recover. That’s — that’s a requirement. Did that answer your question?” The jury foreperson answered, ‘Yes, Your Honor.”

Latimore asserts that the question evidenced that some jurors thought that Norris was negligent, while others did not. Citing OCGA § 9-10-7, he urges that the court’s answer gave the jury the impression that it was required to find against him. He argues that the court’s response gave “the distinct impression that the only outcome of not being unanimous on the issue of negligence is that Jessie Latimore will be barred from recovery” and overshadowed the jurors’ right to remain in their respective positions, which would have forced the court to declare a mistrial.

But Latimore did not complain at trial about any alleged intimation of opinion by the court; he merely objected to the “exchange between — the Court, the question and the answer.” Because he did not state distinctly the grounds for his objection, this alleged error was not preserved for review.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

        Weaver v. Ross, 192 Ga. App. 568, 569 (1) (386 SE2d 43) (1989).

        Morris v. State Farm &c. Ins. Co., 203 Ga. App. 839, 842 (9) (418 SE2d 119) (1992); Hudson Properties v. C & S Nat. Bank, 168 Ga. App. 331, 333 (3) (308 SE2d 708) (1983).

       Compare King v. State, 273 Ga. 258, 273 (30) (539 SE2d 783) (2000) (questioning defense expert about pending complaint against him for having sex with a patient and his failure for health reasons to appear at hearings on the complaint was improper impeachment, where the complaint bore no relation to the scientific issues about which the expert testified).

       “It is error for any judge, during the progress of any case, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error, the decision in the case shall be reversed, and a new trial shall be granted in the court below with such directions as the Supreme Court or the Court of Appeals may lawfully give.”

       OCGA § 5-5-24 (a); Tice v. Cole, 246 Ga. App. 135, 138 (2) (537 SE2d 713) (2000).