text:
    A97A2141.
    TEMPLES v. THE STATE.
    (491 SE2d 444)
   Eldridge, Judge.

On January 28, 1997, Wesley Temples was indicted for the offenses of habitual violator, driving under the influence of alcohol (“DUI”), no proof of insurance, and failure to wear a seat belt. Temples waived a trial by jury and was tried by the trial court in a bench trial. Following a denial of his motion to suppress, Temples was found guilty. Temples now appeals the denial of his motion to suppress and the resulting convictions.

“In reviewing a trial court’s decision on a motion to suppress, its findings will not be disturbed if there is any evidence to support them; all relevant evidence of record, including evidence introduced at trial, as well as evidence introduced at the motion to suppress hearing, may be considered. Pless v. State, 218 Ga. App. 603 (462 SE2d 472) (1995); State v. Brodie, 216 Ga. App. 198 (453 SE2d 786) (1995).” Hill v. State, 224 Ga. App. 208 (480 SE2d 256) (1997).

In viewing the record before this Court, the evidence shows that on November 16, 1996, at about 11:30 p.m., Officer Jeffery Compton of the City of Columbus Police Department observed Temples operating a gold, 1983 Honda Accord on Apex Road near River Road. Officer Compton observed that Temples and the sole passenger, who was sitting in the front seat, were not wearing their seat belts. Officer Compton testified he was able to see into Temples’ vehicle as he passed because of either the light from the street lights or the headlights of the vehicle behind Temples’ vehicle. Officer Compton testified that he came within ten feet of Temples’ vehicle as he passed by, and his view of the interior of the vehicle was clear and unobstructed.

Based upon his observation, Officer Compton pulled the vehicle over to cite Temples for a seat belt violation pursuant to OCGA § 40-8-76.1. Officer Compton asked Temples for his driver’s license, and Temples answered immediately that his license had been revoked. Officer Compton detected an odor of alcohol on Temples’ breath and observed that his eyes were bloodshot and watery. Temples could not produce proof of insurance on the vehicle, and his demeanor was “very aggressive and nervous.” Officer Compton testified that Temples tested “positive” for the presence of ethyl alcohol on the alcosensor, which he had consented to take. Temples was then placed under arrest for driving under the influence of alcohol.

Officer Compton then checked the computer and learned that Temples had been declared a habitual violator. Officer Compton read Temples his implied consent warnings and took him to the Muscogee County Jail for an Intoxilyzer 5000 breath test. Officer Frank Dun-ford of the Muscogee County Sheriff’s Office performed the Intoxilyzer 5000 breath test on Temples. When Temples arrived at the county jail, Officer Dunford noticed that Temples’ speech was slurred, and he could smell alcohol on Temples’ breath. The intoxilyzer test indicated that Temples had a blood-alcohol concentration of .085 and .098. Both Officer Compton and Officer Dunford testified that, based on their observations of Temples and their experience as police officers, they believed that Temples was a less safe driver.

In his sole enumeration of error, Temples contends that the trial court erred in its failure to grant his motion to suppress. Specifically, Temples argues that, once a police officer makes a traffic stop based solely on a seat belt violation under OCGA § 40-8-76.1, any additional evidence gathered as a result of a reasonable inquiry and investigation pursuant to such stop cannot be used as probable cause to arrest the driver for a violation of any other Code section. We disagree.

OCGA § 40-8-76.1 (b) states that “[e]ach occupant of the front seat of a passenger vehicle shall, while such passenger vehicle is being operated on a public road, street, or highway of this state, be restrained by a seat safety belt. . . .” This Code section has been held to be constitutional and is a valid charge against a person driving without a seat belt. C. W. Matthews Contracting Co. v. Gover, 263 Ga. 108 (428 SE2d 796) (1993). The pertinent language of this Code section is found in subsection (f), which states that “[p]robable cause for violation of this Code section shall be based solely upon a law enforcement officer’s clear and unobstructed view of a person not restrained as required by this Code section. Noncompliance with the restraint requirements of this Code section shall not constitute probable cause for violation of any other Code section.” (Emphasis supplied.) OCGA § 40-8-76.1 (f). Based on Officer Compton’s testimony, probable cause existed to perform a traffic stop and give a citation or warning for failure to comply with OCGA § 40-8-76.1, failure to wear a seat belt.

When a police officer makes a traffic stop based on his having a clear view of the occupants of the front seat of a vehicle not wearing their seat belts, he is in the same situation as a police officer making a stop pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), except that the initial stop is based on probable cause, not just a reasonable and articulable suspicion that an individual is, or is about to be, engaged in criminal activity. While the probable cause for the initial stop cannot itself be used as probable cause for arrests based on violations of other Code sections, once a stop for a seat belt violation is made, the language of OCGA § 40-8-76.1 does not preclude an officer from conducting a reasonable inquiry and investigation to ensure both his safety and that of others. See Terry v. Ohio, supra at 20-27; State v. Armstrong, 223 Ga. App. 350 (477 SE2d 635) (1996). Clearly, the additional language of this Code section pertaining to probable cause was added for the purpose of prohibiting a search of a person or a vehicle based solely on the failure of an occupant of the front seat to wear a seat belt. However, the language was not intended to prevent an officer from making an arrest on additional offenses based upon separate probable cause ascertained through a reasonable inquiry and investigation following the initial stop. Obviously, an officer need not ignore the smell of alcohol emanating from the driver of a vehicle simply because the initial stop of the vehicle was for a seat belt violation.

Officer Compton’s investigation was not arbitrary or harassing. “A law enforcement officer coming upon the scene of suspected criminal activity or a traffic incident will conduct a general on-the-scene investigation and may detain temporarily anyone at the scene who tries to leave. Lankford v. State, 204 Ga. App. 405, 406-407 (2) (419 SE2d 498) (1992).” (Punctuation omitted.) State v. Pastorini, 222 Ga. App. 316, 317 (1) (474 SE2d 122) (1996). Immediately after the stop, Officer Compton asked Temples for his driver’s license and proof of insurance. “An officer conducting a routine traffic stop may request and examine a driver’s license and vehicle registration and run a computer check on the documents. See United States v. Guzman, 864 F2d 1512, 1519 (10th Cir. 1988). Accord Florida v. Royer, 460 U. S. 491, 501-502 (103 SC 1319, 75 LE2d 229) (1983) (airline ticket and driver’s license).” Rogers v. State, 206 Ga. App. 654, 657 (2) (426 SE2d 209) (1992). Temples immediately volunteered that his driver’s license was revoked and that there was no insurance on the vehicle. Temples’ “reply that he had no driver’s license [or proof of insurance] furnished the probable cause for the arrest for, at least, driving without a license in [his] possession [and no proof of insurance].” Brown v. State, 223 Ga. App. 364, 367 (477 SE2d 623) (1996).

Officer Compton testified that, during this inquiry, he detected an odor of alcohol on Temples’ breath and observed that his eyes were bloodshot and watery. Based on these observations, Officer Compton, with Temples’ consent, tested Temples on the alco-sensor, which showed a “positive” reading for the presence of ethyl alcohol. Under the totality of the circumstances, probable cause existed for Temples’ arrest for DUI. Cann-Hanson v. State, 223 Ga. App. 690 (478 SE2d 460) (1996); Lee v. State, 222 Ga. App. 389 (474 SE2d 281) (1996).

After Officer Compton placed Temples under arrest for DUI, Officer Compton did a computer check to verify Temples’ license status and confirmed that Temples’ driver’s license had been revoked and that Temples had been declared a habitual violator. See Brown v. State, supra at 367. As such, probable cause existed for Temples’ arrest as a habitual violator.

Therefore, the probable cause for Temples’ arrest for habitual violator, DUI, and no proof of insurance was not Temples’ violation of OCGA § 40-8-76.1, but was derived from the officer’s reasonable inquiry and investigation after the initial stop. The trial court did not err in denying Temples’ motion to suppress.

Judgment affirmed.

Ruffin, J., and Senior Appellate Judge Harold R. Banke concur.

Decided August 22, 1997.

John T Martin, for appellant.

J. Gray Conger, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.

       Prior to trial during the hearing of Temples’ motion to suppress, the State stipulated that probable cause for the initial stop was the driver’s failure to use his seat belt.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A97A1493, A97A1494.
    ANYTIME BONDING COMPANY v. STATE OF GEORGIA (two cases).
    (491 SE2d 399)
   Johnson, Judge.

These two cases, which present identical facts and legal issues, were considered together below and will likewise be treated together on appeal.

Anytime Bonding Company posted appearance bonds for Jacqueline Evans and Cornell Fisher after they were arrested on drug charges. When Evans and Fisher failed to appear at their arraignment, the court ordered the bonds forfeited. The court also ordered Anytime Bonding, Evans and Fisher to show cause at a hearing why final judgment should not be entered and execution issued upon the forfeited bonds. Anytime Bonding filed a written objection to the entry of final judgment, claiming it did not receive proper notice of the execution hearing. Finding that the notice requirements of OCGA § 17-6-70 had not been complied with, the court ordered “that the final judgment not be entered on the forfeited bond[s] and execution not be issued, and that Scire Facias not be ordered.”

A new arraignment date was scheduled, and notices of the arraignment were sent to Anytime Bonding, Evans and Fisher. Wfiien Evans and Fisher again failed to appear, the court issued new bond forfeiture notices and held a second hearing on the forfeitures. This time Anytime Bonding objected on the ground that the matter had previously been ruled upon and the action was therefore barred by the doctrine of res judicata. It also argued that the court violated OCGA § 17-6-71 (a) by waiting four days after the failure to appear before forfeiting the bonds and ordering an execution hearing. The trial court disagreed and entered final judgments in favor of the State of Georgia in the amounts of the bonds and ordered that execution be issued. Anytime Bonding appeals.

1. Anytime Bonding contends the January 1997 judgments are barred by the doctrine of res judicata. It claims that the court had already signed orders in October 1996 providing that final judgments should not be entered on the bonds, executions not be issued, and scire facias not be ordered. The earlier orders, it argues, resolved all issues regarding the “responsibility of the surety.”

Decided August 6, 1997

Reconsideration denied August 25, 1997

Saia & Richardson, Joseph J. Saia, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

The doctrine of res judicata does not apply in these cases. In general, a judgment sought to be used as a basis for the application of the doctrine of res judicata must be a final judgment. Reid v. Reid, 201 Ga. App. 530, 532-533 (411 SE2d 754) (1991); Saxon v. Covington, 178 Ga. App. 271, 272 (342 SE2d 754) (1986). The October orders were not final judgments. In fact, the orders specifically provide that final judgments should not be entered. Moreover, the court noted at the execution hearing in January 1997 that it signed the October 1996 orders so that Anytime Bonding would have time to locate Evans and Fisher. Thus, it is clear from the language of the prior orders and from the hearing transcript that the court intended to leave the cases open and did not intend the earlier orders to be final dispositions of the cases. And, inasmuch as bond forfeiture proceedings continue until final judgment pursuant to OCGA § 17-6-71 (b) is entered, the October orders did not mark the end of the proceedings. See Spring-U Bonding Co. v. State of Ga., 200 Ga. App. 533 (408 SE2d 831) (1991). Finally, the October orders did. not resolve all issues in the cases, only those involving notice to the surety regarding the first hearing and whether final judgments should be entered at that time. There was no error.

2. Anytime Bonding also contends that the final judgment must be reversed because the court violated OCGA § 17-6-71 (a) by not signing the forfeiture order on the same day the principal failed to appear. “The ‘end of the court day’ language at issue is ‘directory and not a limitation of (the trial court’s) authority,’ particularly where appellant was not harmed.” (Citation omitted.) Easy Out Bonding v. State of Ga., 224 Ga. App. 706, 707 (1) (481 SE2d 834) (1997). This enumeration presents no grounds for reversal.

Judgments affirmed.

Pope, P. J., and Blackburn, J., concur.


author: Judge Harold R. Banke.

text:
    A97A1923.
    YOUNG v. THE STATE.
    (491 SE2d 404)
   Judge Harold R. Banke.

Robert Lee Young, owner of a small area rug business, was charged with felony murder and aggravated assault of one of his employees. The jury convicted him of the lesser included offense of battery. In his single enumeration of error, Young argues that excluding testimony of the victim’s history of violence was error.

The evidence, viewed in the light most favorable to the verdict, revealed that the offense occurred in the break room of Young’s place of business. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996). Young and the victim were drinking and shooting pool, betting on their games. The victim, angered after an acquaintance advised Young on a particular shot, threw his pool cue on the table and responded with profanity. The victim then pushed the acquaintance, a woman, into the jukebox. After Young intervened, the victim mumbled, “I’ll cut your f:*ng guts out,” and reached for his back pocket. At that point, Young hit the victim just above the top of his right ear with his pool cue. After a short scuffle, the victim headed toward the door with his girl friend. As they were leaving, Young hit the victim’s chin. The victim went to bed with his girl friend around midnight and when she tried to wake him in the morning, he was dead.

Prior to trial, Young gave notice pursuant to Uniform Superior Court Rule 31.1 of his intention to present evidence of specific acts of violence by the victim. These included two incidents when the victim pulled a knife on unknown patrons of (1) The Pines and (2) the Riverside Bar, both in Polk County, Tennessee, in the fall of 1995. The trial court permitted testimony of the incident at The Pines. However, the trial court excluded testimony of an alleged incident at the victim’s house which occurred the same evening as the incident at The Pines. Held:

The trial court did not abuse its discretion in excluding the testimony. Syfrett v. State, 210 Ga. App. 185, 188 (5) (435 SE2d 470) (1993). Uniform Superior Court Rules 31.1 and 31.6 (B) require defendants to provide timely notice of intent to present acts of violence by the victim. Such notice must include the act of violence, the date, county and the name, address and telephone number of the other person involved. Uniform Superior Court Rule 31.6 (B). Considerations of fundamental fairness, assuring sufficient time to rebut the specified allegations, underlie such notice provisions. See Armstrong v. State, 265 Ga. 18, 19 (2) (453 SE2d 442) (1995); Chandler v. State, 261 Ga. 402, 408 (3) (c) (405 SE2d 669) (1991). Young’s total failure to provide notice of the incident at the victim’s house prevented the State from seeking evidence to rebut the testimony about the incident at trial. Under these circumstances, we cannot say the trial court’s exclusion of the evidence was error. Moreover, the abundant evidence relating to the victim’s violent propensities which was admitted convinces us that the excluded testimony was cumulative. Hathcock v. State, 214 Ga. App. 188, 192 (7) (447 SE2d 104) (1994).

Decided August 8, 1997

Reconsideration denied August 25, 1997

Mitchell & Mitchell, E. Neil Wester III, Gee G. Vaughn, for appellant.

Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur.


author: Eldridge, Judge.

text:
    A97A2084.
    HICKS v. THE STATE.
    (494 SE2d 342)
   Eldridge, Judge.

Appellant, Shawn Dewayne Hicks, was indicted in the Superior Court of Glynn County for possession of less than one ounce of marijuana; Hicks had a prior conviction for the same offense. He was tried by a jury and found guilty as charged. The trial court fined appellant $750 and sentenced him to twelve months imprisonment, to serve six months, with the balance probated. Hicks appeals, claiming the trial court erred in denying his plea in bar, filed and argued prior to trial, and his motion for directed verdict, made at the close of the State’s evidence, wherein appellant asserted the same grounds: that possession of marijuana, less than one ounce, is a misdemeanor crime, and he was being improperly prosecuted in the superior court for a felony offense pursuant to this Court’s holding in Williams v. State, 222 Ga. App. 698 (475 SE2d 667) (1996). We affirm appellant’s conviction and in so doing, clarify the holding of Williams in relation to appellant’s (a) prosecution, and (b) conviction.

1. (a) Williams arose from a prosecution in a state court for possession of marijuana, less than one ounce; the defendant, like appellant in the case sub judice, had a prior conviction for that offense. In Williams, the defendant claimed that a prosecution for possession of marijuana, less than one ounce, is a felony prosecution when the defendant has a prior conviction therefor; that only the punishment is “as a misdemeanor.” OCGA § 16-13-2 (b). Thus, the defendant argued, the state court in which she was prosecuted did not have subject matter jurisdiction over the felony offense, and her conviction could not stand. This Court, in interpreting the statute as it read at that time, agreed with the defendant and reversed her state court conviction on jurisdictional grounds only. Williams, supra at 699. Obviously, then, our decision in Williams addressed a purely subject matter jurisdictional issue.

In the instant case, appellant was tried in the Superior Court of Glynn County, which court has concurrent jurisdiction over felony and misdemeanor offenses. Ga. Const, of 1983, Art. VI, Sec. IV, Par. I; Clifton v. State, 53 Ga. 241 (1874); Bell v. State, 41 Ga. 589 (1871); Royster v. State, supra. As such, subject matter jurisdiction was proper in that court, regardless of whether appellant was prosecuted for a misdemeanor or felony offense, and the jurisdictional significance of our holding in Williams is without precedential value with regard to the prosecution of the case sub judice, because it is distinguishable on the law.

Likewise, the General Assembly’s 1997 amendment to OCGA § 16-13-2 (b) involved subject matter jurisdictional issues. Act 423 simply restored jurisdiction over cases involving possession of marijuana, less than one ounce, to the state courts, in light of our decision in Williams. As such, the enactment of Act 423 does not impact on appellant’s prosecution in superior court, since such court has subject matter jurisdiction to try misdemeanor or felony offenses. Royster, supra. Thus, appellant’s prosecution in the Superior Court of Glynn County for possession of marijuana, less than one ounce, was proper.

(b) Under this same claim of error, appellant maintains that although he was subject to misdemeanor punishment, the trial court’s denial of his plea in bar and motion for directed verdict subjected appellant “to felony ramifications regarding his civil rights because he is presently considered a convicted felon for this offense” pursuant to Williams. We disagree; under the facts of this case, appellant’s conviction was not for a felony offense.

“In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a); see also Choate v. State, 158 Ga. App. 8, 10 (279 SE2d 459) (1981) (Carley, J., concurring specially). “[I]t is equally axiomatic that subsequent legislation declaring the intent of a legislative body in enacting an earlier statute is entitled to great weight in statutory construction. Red Lion Broadcasting Co. v. F. C. C., 395 U. S. 367, 380-381 (89 SC 1794, 23 LE2d 371) (1969).” Jackson v. Delk, 257 Ga. 541, 543 (3) (361 SE2d 370) (1987).

In Act 423, the Legislature specifically expressed its intent, both past and future, with regard to OCGA § 16-13-2 (b): “[I]t is the intent of the-General Assembly to restore the law of this state to that which was generally understood to be the law prior to the decision of the Court of Appeals in Williams v. State, [supra], decided August 20, 1996, such that possession of one ounce or less of marijuana is a misdemeanor.” (Emphasis supplied.) The term “restore” means to bring back into existence; bring back to an original condition. See The American Heritage Dictionary, 3rd ed., p. 1538. Obviously, the General Assembly’s use of the term “restore,” as opposed to, e.g., “change” or “enact,” was deliberate and capable of but one reasonable interpretation. From the clear expression of legislative intent, as plainly stated in Act 423, the inescapable conclusion is that possession of marijuana, less than one ounce, was a misdemeanor offense prior to our decision in Williams and was “restored” to misdemeanor status after Williams by the enactment of Act 423.

The law as it exists at the time of the offense determines both the penalty that may be imposed and the conduct that is considered to be a crime. Barrett v. State, 183 Ga. App. 729, 732-733 (360 SE2d 400) (1987), overruled on other grounds, Gonzalez v. Abbott, 262 Ga. 671 (425 SE2d 272) (1993); State v. Williams, 172 Ga. App. 708, 709 (324 SE2d 557) (1984). In the case sub judice, appellant committed the offense of possession of marijuana, less than one ounce, prior to our decision in Williams. Since, prior to Williams, such offense was a misdemeanor offense, which status was “restored” by the enactment of Act 423, appellant’s conviction is for a misdemeanor offense. Accordingly, the trial court’s denial of appellant’s plea in bar and motion for directed verdict, if error at all, was harmless. “Both error and harm must be shown affirmatively by the record to authorize a reversal on appeal.” Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901) (1994).

Decided August 11, 1997

Reconsideration denied August 25, 1997.

James J. Lacy, for appellant.

Stephen D. Kelley, District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

2. Herein, appellant also challenges the sufficiency of the evidence supporting his conviction, contending that the marijuana could have belonged to the driver of the vehicle in which he was a passenger.

In the instant case the arresting officer, while on bicycle patrol, smelled the odor of marijuana as he rode by the car in which appellant was sitting; appellant was smoking what appeared to be a marijuana cigarette; when the officer made his presence known, appellant rolled up the passenger window which had been lowered several inches, locked the passenger’s door and the driver’s door, and proceeded to eat a quantity of green leafy material that he retrieved from the floorboard of the car; appellant exited the car when he had concluded his meal. A chemical analysis conducted on a small amount of leafy material recovered from the vehicle tested positive for marijuana. We find the evidence sufficient for a rational trier of fact to have determined that appellant was in possession of marijuana, less than one ounce. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. The trial court properly permitted Officer Mike Owen to testify as to the chemical tests he performed upon the suspected marijuana sample and the results thereof. Officer Owen had been trained to perform such tests by the Georgia Bureau of Investigation, Division of Forensic Sciences, and was certified by the GBI to perform such tests. The officer had testified in court more than a hundred times regarding the results of chemical tests he had conducted on suspected marijuana. Officer Owen had never misidentified a sample, and in the instant case, he conducted three tests on the suspected marijuana: the Duquenois-Levine test, the KN Reagent-9 test, and a microscopic test. There was no error. Smith v. State, 210 Ga. App. 451, 452 (436 SE2d 562) (1993).

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       Cf. United States v. Moreland, 258 U. S. 433 (42 SC 368, 66 LE 700) (1922), which holds that it is the punishment that may be imposed that characterizes a crime as either a misdemeanor or felony. Accord Ramsey v. Powell, 244 Ga. 745, 746 (262 SE2d 61) (1979); Lewis v. State, 243 Ga. 443, 445 (254 SE2d 830) (1979). The maximum punishment that may be imposed for those acts that are designated a crime under our Code is what distinguishes a felony crime from a misdemeanor crime. Royster v. State, 226 Ga. App. 737 (487 SE2d 491) (1997); State v. Temple, 189 Ga. App. 284, 285-286 (375 SE2d 300) (1988). Inquiry: if, under the provisions of OCGA § 16-13-2 (b), as it existed both prior to and after the enactment of House Bill 347, the maximum punishment that may be imposed Upon conviction for possession of marijuana, less than one ounce, is twelve months or less, how may such offense be characterized as a “felony”?

       House Bill 347, Act 423, unanimously passed the Georgia House of Representatives and the Georgia Senate, the caption of which Act specifically stated that the purpose of the bill was, inter alia, “to provide for state court jurisdiction over possession of one ounce or less of marijuana.” Ga. L. 1997, p. —, § — . The Act became effective upon approval by Governor Zell Miller on April 29, 1997.

       The incident which gave rise to appellant’s arrest and conviction occurred on May 3, 1996. Our decision in Williams, classifying a second conviction for possession of marijuana, less than one ounce, as a felony offense with misdemeanor consequences, was handed down on August 20, 1996. Act 423 went into effect April 29, 1997. Appellant was tried on May 13, 1997.

       It is unnecessary for a determination of the issues raised herein to address the felony or misdemeanant status of a defendant whose second conviction for possession of marijuana, less than one ounce, arises from an incident occurring between the date of our decision in Williams and the effective date of Act 423.


text:
    A97A2135.
    JACKSON et al. v. GEORGIA LOTTERY CORPORATION.
    (491 SE2d 408)
   Eldridge, Judge.

Plaintiffs George Jackson, George Walker, and Curtis Harris filed suit individually, and “on behalf of all other persons similarly situated,” against the Georgia Lottery Corporation (“GLC”), asking the Superior Court of Fulton County to declare as a matter of law that the GLC’s lottery games “Cash Three” and “Quick Cash” are illegal and unconstitutional, because these games go beyond the provisions for lottery games provided by constitutional amendment and by statute and, as operated, constitute illegal casino gambling. Plaintiffs also sought an injunction prohibiting the operation of these two games, and damages in the amount of all proceeds from the two games, since the proceeds were allegedly obtained through illegal gambling as proscribed by OCGA § 13-8-3.

The GLC filed a motion for summary judgment, claiming: (a) protection from a monetary judgment by virtue of sovereign immunity; and (b) the monetary damages sought by plaintiffs are precluded since, pursuant to statute, proceeds from the GLC’s lottery games are designated for the state’s educational fund, thereby making impossible the forfeiture of proceeds derived from the disputed games. The trial court granted the GLC’s motion, finding that: (a) plaintiffs’ claims were barred by the doctrine of sovereign immunity; and (b) even if plaintiffs’ claims had merit, the “impossibility” of obtaining requested monetary damages precluded recovery since, by law, proceeds from the “Cash Three” and “Quick Cash” games must go to the state’s educational fund. Held:

1. (a) The threshold consideration is whether, in the instant case, the Georgia Lottery Corporation is entitled to the protection afforded by the doctrine of sovereign immunity. In addressing this issue, we have no choice but to confront the split of authority apparent in decisions from our high court regarding what constitutes a state “agency,” so as to implicate the doctrine of sovereign immunity. See Miller v. Ga. Ports Auth., 266 Ga. 586 (470 SE2d 426) (1996), and Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40 (440 SE2d 195) (1994).

Our Legislature made very clear that the Georgia Lottery Corporation “shall be deemed to be an instrumentality of the state, and not a state agency, and a public corporation.” (Emphasis supplied.) OCGA § 50-27-4. In Thomas, our Supreme Court examined the issue of sovereign immunity from tort as it applies to a hospital authority and “distinguished] the state and its political subdivisions from instrumentalities created by the state to carry out various functions.” (Emphasis supplied.) Thomas, supra at 41. The court in Thomas determined that such an “instrumentality,” which is a “mere creature of the [s]tate, having distinct corporate entity,” is not protected by sovereign immunity. Id. at 42. “Since a hospital authority, though an instrumentality of government, is not, in any sense, an agency or department of the state, the nature of its function is irrelevant; it is not, by the language of the statute, entitled to the protection of sovereign immunity.” Id.

Notwithstanding, in Miller our Supreme Court determined that the Georgia Ports Authority (“Authority”) was to be afforded the protection of sovereign immunity from tort, although the Authority is not a department or agéncy of the state, but is, instead, simply a separate entity created by the state, much like the hospital authority in Thomas and the GLC in this case. See Scarlett v. Ga. Ports Auth., 223 Ga. 417, 418 (1) (156 SE2d 77) (1967). However in Miller, the issue was whether the Authority was a “state agency” for purposes of the notice provision of the Georgia Tort Claims Act, OCGA §§ 50-21-21 to 50-21-37 (1994). The court in Miller based its determination on the language of the Tort Claims Act, which Act, for purposes of tort liability, delineates those entities to which the defense of sovereign immunity is not available, but toward which entities certain procedural requirements, such as notice, must be followed in order to properly institute a tort claim. Specifically, under the relevant portion of the Tort Claims Act, OCGA § 50-21-22 (6), a “State government entity” is defined as “a state office, agency, authority, department, commission, board, division, instrumentality, or institution.” From this listing of entities to which the defense of sovereign immunity was not available, the Miller court determined that, were it not for the waiver established by the Act, perforce, sovereign immunity would apply to the listed entities: “Our earlier cases distinguishing between instrumentalities of the state and state agencies are not dispositive since both instrumentalities and agencies are included in the act’s definition of the state.” Miller, supra at 588. Thus, without overruling Thomas and the number of cases upon which Thomas relied for its narrow definition of what constitutes the “state” or a political division thereof for purposes of sovereign immunity from tort, the Miller court found that the doctrine of sovereign immunity applied to the Authority for the purpose of proceedings under the Tort Claims Act.

The logical progression of these two lines of cases leads to the unsettling conclusion that an entity may be a “state agency” entitled to sovereign immunity from torts in some types of cases, but not in others. However, we leave the cutting of that Gordian knot to our high court, and simply note, determinatively, that all parties agree this case sounds in contract and is not a tort claim. See also OCGA § 13-8-3; Talley v. Mathis, 265 Ga. 179 (453 SE2d 704) (1995). Thus, contrary to the position of the GLC in this case, we do not look to the Tort Claims Act for guidance as to GLC’s governmental status. The Tort Claims Act is a procedural vehicle which outlines the process, such as notice, that must be followed when filing a tort suit against certain governmentally created entities. The language of the Tort Claims Act is much broader than that of the Constitution which grants sovereign immunity only to “the state and all of its departments and agencies”; the Tort Claims Act statutorily extends such definitions to include “instrumentalities.” OCGA § 50-21-22 (6). However, the Act’s broad, inclusive definition of the types of governmentally created entities for which notice is required and toward which the doctrine of sovereign immunity will not be applied does not impact upon the narrow class of state agencies and departments entitled to the protection of sovereign immunity under the Constitution. The plain language of the Georgia Constitution of 1983 provides for the protections of sovereign immunity to extend only to the “state or its departments, agencies, officers, or employees,” and not to “instrumentalities” such as the GLC. Ga. Const, of 1983, Art. I, Sec. II, Par. IX (a). To the extent that a conflict may exist, the Act must give way to Constitutional provisions. See, e.g., Hiers v. City of Barwick, 262 Ga. 129 (2) (414 SE2d 647) (1992).

We further look to the plain language of the statute creating the GLC, OCGA § 50-27-4, which asserts that the GLC is not a state agency but an “instrumentality” of the state, and the line of cases, outside the Tort Claims Act, which have construed the status of an “instrumentality,” such as the GLC, and have determined that such entity is not entitled to the defense of sovereign immunity. See, e.g., Thomas, supra. Persuasive, also, are additional relevant characteristics that distinguish an “instrumentality” of the state from a state “agency” to which sovereign immunity should be extended: “Indeed, the [GLC] was established as a separate, self-sufficient entity, and the General Assembly is not required to appropriate any funds either to satisfy debts of the [GLC] or to pay any of the [GLC’s] costs of operation. [Cit.] Accordingly, any judgment against the [GLC] is not an obligation of the state, and extension of sovereign immunity to the [GLC] is not necessary to protect ‘the public purse.’ ” Miller, supra at 590 (Carley, J., dissenting).

Accordingly, after a review of the above constitutional and statutory provisions, as well as the applicable case law, we find that the Georgia Lottery Corporation is not a state “agency” entitled to the defense of sovereign immunity under the facts and law of the instant case. Thomas, supra. Thus, the trial court’s granting of summary judgment based upon the GLC’s defense of sovereign immunity was incorrect.

(b) The trial court also determined that even if “the plaintiffs’ claims have merit, recovery would be impossible where constitutional and statutory mandates [sic] that the proceeds from the games in question are to be directed to the state’s educational fund.” However, such ruling puts the cart before the horse.

Accepting for the moment that plaintiffs’ claims “have merit” and that “Cash Three” and “Quick Cash” are, as plaintiffs assert, illegal because they go beyond the scope of the lottery games for which the GLC’s constitutional and statutory mandates provide, then it matters not that the proceeds therefrom are designated for the state’s education fund. Any such money will have been obtained by the GLC through actions ultra vires, which are void, and the benefits of such unlawful acts may not be retained by the GLC. “There is no doubt but that equity will exercise jurisdiction to restrain acts or threatened acts of public officers which are ultra vires and beyond the scope of their authority, outside their jurisdiction, unlawful or without authority.” (Citations and punctuation omitted.) Head v. Browning, 215 Ga. 263, 267 (109 SE2d 798) (1959). Further, this result would obtain regardless of whether the benefits are statutorily designated to be transferred to the state education fund because the GLC may not retain and transfer benefits derived from an act ultra vires. “[W]here the officers of a corporation, though without authority to do so, do in fact execute a contract in behalf of the corporation, and the fruits of it are received, retained, and applied to corporate uses, the corporation will be liable thereon notwithstanding any want of authority in its officers.” Flatauer Fixture &c. Corp. v. Garcia & Assoc., 99 Ga. App. 685, 688 (109 SE2d 818) (1959). “That benefits may flow ... in carrying out an ultra vires contract. . . affords no reason for denying appropriate equitable relief to one who attacks the contract as being illegal, and whose rights will be infringed if its terms are given effect. [Cit.]” Norton v. City of Gainesville, 211 Ga. 387, 392 (86 SE2d 234) (1955); Coker v. Atlanta &c. R. Co., 123 Ga. 483 (4) (51 SE 481) (1905); see also Merchants Bank of Macon v. Central Bank of Ga., 1 Ga. 418 (1846). Thus, absent a determination as to the legality of the disputed games, themselves, the fact that pursuant to statute the benefits therefrom are earmarked for the state treasury provides no basis for the granting of summary judgment, and plaintiffs may have a chose in action as to the benefits that have been generated by the allegedly unlawful games.

In addition, pursuant to statute, “as nearly as practical” 45 percent of all monies taken in by the GLC is designated for prizes, and 35 percent of all monies taken in is to be termed “net proceeds” and is allocated for the state education fund. See OCGA § 50-27-13 (a) (2), (3) (b) (1). This leaves approximately 20 percent of all monies taken in by the GLC from its numerous lottery games that have no specific statutorily prescribed designation at all, except as open-ended “operating expenses”; these considerable, additional monies may be utilized to satisfy any judgment against the GLC, which corporation has the power “[t]o sue and be sued in contract and in tort[.]” OCGA § 50-27-9 (a) (1). Thus, the fact that only a portion of the GLC’s proceeds may be statutorily allocated for other purposes would not provide a basis for summary judgment because of the “impossibility” of a monetary recovery. The trial court’s granting of summary judgment on such basis was incorrect.

Nonetheless, the standard of review of the trial court’s grant of summary judgment is a de novo review of the evidence and law to determine whether there is any genuine issue of material fact as to the elements required to establish the cause of action as stated by plaintiffs in their complaint. Artlip v. Queler, 220 Ga. App. 775, 776-777 (470 SE2d 260) (1996). The GLC, in moving for summary judgment, must show that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the plaintiffs, warrant judgment as a matter of law. City of Thomasville v. Shank, 263 Ga. 624 (437 SE2d 306) (1993). In this case, the facts are not in dispute. The issue is the purely legal question of whether “Quick Cash” and “Cash Three” are, as plaintiffs assert, illegal games as a matter of law. Accordingly, we direct our attention to the constitutional and statutory provisions authorizing the operation of lottery games.

The constitutional amendment, Ga. L. 1991, p. 2035, § 1, revised Art. I, Sec. II, Par. VIII, of the Constitution of 1983 to provide that the General Assembly may enact legislation providing for the operation and regulation of a lottery by or on behalf-of the state and providing for the distribution of the proceeds thereof, which amendment was approved by a majority of qualified voters during the General Election on November 3, 1992. Thereafter, given the authority under the Constitution, the Legislature enacted the “Georgia Lottery for Education Act.” Ga. L. 1992, p. 3173, § 2; OCGA § 50-27-1 et seq. The Act created the GLC and delineated its powers. OCGA §§ 50-27-2 (2); 50-27-4; 50-27-9. The Act defined the scope of permissible games to be operated by the GLC; permitted the GLC’s governing board to adopt regulations, policies, and procedures regulating the conduct of lottery games, including the type of games to be played; and provided for the distribution of the proceeds. OCGA §§ 50-27-3; 50-27-10; 50-27-12. This was an authorized delegation of legislative power to the executive branch, i.e., the GLC.

Under the Act, permissible “lottery” games are broadly defined as “any game of chance approved by the board and operated pursuant to this chapter, including, but not limited to, instant tickets, on-line games, and games using mechanical or electronic devices but excluding pari-mutuel betting and casino gambling as defined in this Code section.” (Emphasis supplied.) OCGA § 50-27-3 (9). Under the referenced Code section, “Casino gambling means a location or business for the purpose of conducting illegal gambling activities, but excluding the sale and purchase of lottery tickets or shares as authorized by this chapter.” (Emphasis supplied.) Id. at (4).

Under these provisions, it is clear that the creation and operation of “Cash Three” and “Quick Cash” games are a lawful exercise of the GLC’s authority, and the games themselves, as implemented, do not violate the statutory definition of a lawful lottery game. Contrary to plaintiffs’ assertions, such games do not fall within the statutory definition of improper “casino gambling” as they constitute the purchase of lottery tickets, which is exempted therefrom under the statute; further, there is no contention before this Court that these disputed games are played in locations operated for the purpose of conducting illegal gambling activities.

Moreover, plaintiffs’ allegations that the GLC “acts as a ‘house’ or ‘bank’ which participates in the games, taking on all comers, paying all winners and collecting from all losers” does not demonstrate a constitutional or statutory violation. Plaintiffs’ description is apropos to the operations of any game of chance and would not cause “Cash Three” or “Quick Cash” to exceed the bounds of a lawful lottery game under the statutory definitions.

In sum, “Cash Three” and “Quick Cash” are proper under the law. If these games, as operated, go beyond the types of lottery games anticipated by the people when voting in favor thereof, they do not exceed the bounds of the constitutional power granted to the General Assembly to enact legislation for the operation of a lottery game. Further, these disputed games do not exceed the bounds of the subsequent legislation which created the GLC, broadly defined what constitutes a “lottery” game, and gave the GLC extensive power over the types of games to be played, as well as the conduct and implementation of those games. If the reins are to be pulled back on lottery games in this state, it is not within the power of this Court to do so as long as the law remains as it stands. Accordingly, we find from a review of the record in a light most favorable to plaintiffs that summary judgment was warranted as a matter of law, and the trial court’s granting of summary judgment, right for any reason, is affirmed.

2. The trial court specifically found that due notice regarding the hearing on the motion for summary judgment had been sent to all parties. Plaintiffs have failed to demonstrate otherwise. “The burden is on the party alleging error to show it affirmatively by the record.” Campbell v. Powell, 206 Ga. 768, 770 (58 SE2d 829) (1950). Further, there is no transcript of the April 9, 1997 hearing from which we could determine whether this issue was ever raised in the trial court. It is well-settled that this Court will not review errors raised for the first time on appeal. City of College Park v. Pichon, 217 Ga. App. 53, 55 (456 SE2d 686) (1995). Accordingly, as there is nothing before us to review, we are unable to address this enumeration of error. Kelly v. Pierce Roofing Co., 220 Ga. App. 391 (1) (469 SE2d 469) (1996).

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

Decided August 11, 1997

Reconsiderations denied August 25, 1997

William R. McCracken, Christopher G. Nicholson, for appellants.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, John B. Ballard, Jr., Senior Assistant Attorney General, Harold D. Melton, Assistant Attorney General, for appellee.

       Plaintiffs incorrectly styled their case as a class action when it had not been certified as such under the provisions of OCGA § 9-11-23.

       The state’s defense of sovereign immunity is waived only as to an action ex contractu for breach of a written contract, not as to an implied contract as presented in the allegations of the plaintiffs. See Dept. of Transp. v. Fru-Con Constr. Corp., 206 Ga. App. 821 (3) (426 SE2d 905) (1992). Thus, a determination as to sovereign immunity remains an issue. Ga. Const, of 1983, Art. I, Sec. II, Par. IX (a).

       See also Richmond County Hosp. Auth. v. McLain, 112 Ga. App. 209 (144 SE2d 565) (1965); Bradfield v. Hosp. Auth. of Muscogee County, 226 Ga. 575, 587 (176 SE2d 92) (1970); Toombs County v. O’Neal, 254 Ga. 390 (330 SE2d 95) (1985); Cox Enterprises v. Carroll City-County Hosp. Auth., 247 Ga. 39, 45 (273 SE2d 841) (1981); Intl. Longshoremen’s Assn. v. Ga. Ports Auth., 217 Ga. 712, 716 (1) (124 SE2d 733) (1962); Ga. Ports Auth. v. Arnall, 201 Ga. 713, 722 (41 SE2d 246) (1947).

       It is interesting to note, without deciding such, that the Legislature’s clear characterization of the Georgia Lottery Corporation as not a state agency would permit the GLC to function outside the Administrative Procedures Act, would permit the GLC to, perhaps, avoid the Open Records Act and Open Meetings provisions of our Code, and would ensure the GLC’s autonomy in decision-making, without repeated Legislative, i.e., public, oversight. However, one cannot help but inquire: Should such expressed freedom from governmental encumbrance also permit governmental protection, such as sovereign immunity, whenever State “agency” status becomes attractive?

       In this way the state may claim that “all” proceeds from the lottery go to the education fund.

       “Cash Three” was implemented August 10, 1993. To play, a player marks three numbers on a lottery ticket in one sequential order and/or in numerical combinations; players may play at $.50 or $1 at a time; drawings are daily. As of August 26, 1996, “Cash Three” proceeds totaled $1,649,722,331; approximately $580,261,136 of these proceeds have been transferred to the state education fund.

       “Quick Cash” was implemented on December 15, 1995. To play, a player selects from one to ten numbers on a lottery ticket which is then read by a computer at the time of selection; players may play between $1 and $100 at a time in $1 increments; every five minutes, ten winning numbers are randomly chosen by the computer and displayed on a video monitor connected to the computer terminal; the amount of prize money depends on the total of correctly selected numbers. As of August 26, 1996, the proceeds from “Quick Cash” totaled $53,740,450; from these proceeds, $18,813,186 have been transferred to the state education fund.

        Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991).


author: McMURRAY, Presiding Judge.

text:
    A97A1192.
    MERRIWEATHER v. THE STATE.
    (491 SE2d 467)
   McMURRAY, Presiding Judge.

Defendant filed this appeal challenging the denial of his motion to suppress after being convicted for possession of cocaine with intent to distribute. The evidence adduced at the motion to suppress hearing reveals the following: Officers David Barnes and Cliff Kelker of the Marietta Police Department observed defendant at about 10:00 p.m. on February 4, 1995, displaying an object to the driver of a car that was illegally stopped on a street known for illegal drug activity. Officer Kelker noticed that the object defendant was displaying was a paper towel and he watched the driver of the stopped car give defendant money. Both officers perceived that defendant was startled when their police cruiser appeared, they both watched defendant suddenly turn and walk away as they drove into sight, and they both saw the driver of the illegally parked car flee the moment defendant turned and walked away. The officers noticed that defendant had money in one hand and an object in the other and they both watched defendant put this object in his mouth as he turned from the driver of the parked car. Officer Kelker specifically noticed that this object was the paper towel defendant was displaying to the driver of the illegally parked car and he remembered watching as defendant “balled it up[,] tossed it in his mouth and began to walk away.”

The officers stopped defendant and Officer Barnes “asked him what he had in his mouth; [but defendant] made no reply.” Officer Barnes ordered defendant “to open his mouth, [and when defendant complied, Officer Barnes] saw a paper towel wrapped up. . . .” According to Officer Kelker, the officers then directed defendant “to spit out what he had in his mouth, [but] he wouldn’t spit it out, he was chewing on it, couldn’t talk. . . .” Officer Barnes responded by “affect[ing] a Heimlich Maneuver on [defendant], causing this item to come out of his mouth.” Officer Barnes explained that he executed this maneuver by moving “directly behind [defendant], [making] a fist with [his] other hand, [forcing his] fist upward underneath [defendant’s] ribs cage [and thereby] forcing [defendant] to spit the [contraband out of his mouth].” “Inside [the officers] found five rocks of crack cocaine.” Held:

1. Defendant contends “there was no particularized suspicion of criminal activity to justify [his] detention and arrest. . . .” We do not agree.

“ ‘ “ ‘(A) police officer is authorized to make a brief, investigatory detention of an individual where the intrusion can be justified by specific, articulable facts giving rise to a reasonable suspicion of criminal conduct. What is demanded of the police officer ... is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.’ (Citations and punctuation omitted.) (Cit.)” Foster v. State, 208 Ga. App. 699 (1) (431 SE2d 400) (1993).’ Wilson v. State, 210 Ga. App. 886 (437 SE2d 867).” Jones v. State, 216 Ga. App. 449, 450 (454 SE2d 631). In the case sub judice, Officer Barnes not only testified that he observed defendant standing at an intersection known for illegal drug activity, he testified that he observed defendant display something to the driver of an illegally stopped car and that he observed defendant abruptly turn and walk away when the officers’ police cruiser appeared. Officer Barnes also testified that he observed defendant holding money in his hand immediately after the suspected drug transaction and that he watched defendant place an object in. his mouth while turning away from the stopped vehicle. Officer Kelker testified that he perceived this object to be the paper towel he observed defendant displaying to the driver of the stopped car a few moments earlier and that he watched as defendant “balled it up[,] tossed it in his mouth and began to walk away.” This evidence, and Officer Barnes’ testimony that drug dealers often operate in the manner he observed defendant operating, authorizes reasonable suspicion that defendant was engaged in illegal drug activities and, thus, sustains Officers Barnes’ and Kelker’s brief stop and detention of defendant to determine the purpose of his nighttime activities in an area known for illegal drug transactions. See Goodman v. State, 210 Ga. App. 369, 371 (436 SE2d 85). Probable cause authorizing the search of defendant’s mouth and his arrest arose the moment Officer Barnes observed defendant in possession of suspected cocaine. See Copeland v. State, 213 Ga. App. 39, 40 (1), 41 (443 SE2d 869).

2. We reject defendant’s contention that Officers Barnes and Kelker were motivated by racial bias when they stopped him. The mere fact that defendant’s race and gender were different from the race and gender of the driver of the illegally parked car does not demand a finding that Officer Barnes’ and Officer Kelker’s reasons for stopping defendant were racially motivated. “An appellate court reviewing a trial court’s order concerning a motion to suppress evidence must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. Tate v. State, 264 Ga. 53, 54 (440 SE2d 646), citing Anderson v. State, 133 Ga. App. 45, 47 (209 SE2d 665).” State v. Banks, 223 Ga. App. 838, 839 (479 SE2d 168).

Decided August 25, 1997.

John R. Greco, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, W. Thomas Weathers III, Assistant District Attorneys, for appellee.

3. Defendant contends use of “a Heimlich Maneuver” to remove the suspected contraband from his mouth violated his Fourth Amendment right to be free from unreasonable searches and seizures. We do not agree. Although forceful extraction of contraband from a criminal suspect implicates the Fourth Amendment and should be avoided whenever possible, a criminal suspect does not have a right to destroy evidence and “the police are authorized to use reasonable but not excessive force in preventing the destruction or concealment of evidence.” State v. Young, 550 P2d 689, 691-692 (Wash. 1976). Since nothing in the record indicates that Officer Barnes’ use of “a Heimlich Maneuver” was so shocking to the conscience as to violate defendant’s Fourth Amendment rights, we find no error in the trial court’s order denying defendant’s motion to suppress. See Curry v. State, 217 Ga. App. 623, 624 (1) (458 SE2d 385), and cites.

Judgment affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.

       Officer Barnes described this area as “basically an open air drug market that occurs 24 hours a day, 7 days a week.”


text:
    A97A2106.
    GAY v. THE STATE.
    (491 SE2d 469)
   Eldridge, Judge.

Appellant Goldon Gay appeals a Cobb County jury’s verdict of guilty as to the offense of possession of cocaine with intent to distribute. The facts pertinent to the single issue raised on appeal are these:

Pursuant to appellant’s arrest on April 23, 1994, several items were seized: one alleged crack pipe made of metal, one alleged crack pipe made of glass, and 18 small ziplock plastic bags containing alleged cocaine residue. These items were sent to the State Crime Laboratory in order to test them for the presence of drugs.

In August 1994, 14 months prior to appellant’s October 1995 trial date, the State served appellant with a Certificate of Disclosure, attached to which was a crime lab report. The report showed that of the items seized and sent to the crime lab, only the glass- pipe was actually tested for the presence of drugs, which test showed positive for cocaine. However, the Certificate of Disclosure notified appellant that the State had specifically requested that the crime lab perform drug analysis on the other items, i.e., the metal pipe and the ziplock bags.

In September 1994, these items were analyzed by the crime lab pursuant to the State’s request and tested positive for cocaine. The State was notified orally of the test results. Thereafter, the State served appellant with a Supplemental Certificate of Disclosure that notified appellant of the results of the testing on these other items.

Appellant filed a motion in limine, contending that the State failed to serve appellant with a crime lab report containing the test results for the metal pipe and the ziplock bags pursuant to the requirements of OCGA § 17-7-211; thus, appellant argued, forensic testimony regarding the chemical tests conducted on these items should be excluded because of such statutory violation. The State maintained that the tests conducted upon the disputed items had not been reduced to writing and that no written crime lab report was available. The trial court denied appellant’s motion and permitted the crime lab chemist to testify at trial regarding the drug analysis she conducted on all of the seized items. Appellant claims as error the trial court’s ruling. Held:

Before this Court, appellant does not assert that a written crime lab report was ever prepared of the tests conducted on the disputed items, the metal pipe and the ziplock bags. Instead, appellant argues that he is “entitled to a written report,” even if such test results were not reduced to writing. However, “[OCGA] § 17-7-211 applies to scientific reports in writing and not oral reports of experts relaying the results of tests.” Perry v. State, 255 Ga. 490, 492 (3) (339 SE2d 922) (1986); Faircloth v. State, 253 Ga. 67 (2) (316 SE2d 457) (1984); Law v. State, 251 Ga. 525 (2) (307 SE2d 904) (1983). It is well settled that OCGA § 17-7-211 does not attempt to mandate the furnishing of a written scientific report that does not, in fact, exist, and such statute does not require the creation of a written scientific report where none exists. Givens v. State, 214 Ga. App. 774 (1) (449 SE2d 149) (1994); Curtis v. State, 183 Ga. App. 6, 8 (357 SE2d 849) (1987); McDaniel v. State, 169 Ga. App. 254 (3) (312 SE2d 363) (1983); Law v. State, 165 Ga. App. 687, 690 (3) (302 SE2d 570) (1983), aff’d 251 Ga. 525, 528 (2), supra; see also Rower v. State, 264 Ga. 323, 324-325 (5) (443 SE2d 839) (1994). Clearly, “[i]t is the duty of appellant to show error by the record and mere assertions of error in the brief do not suffice.” Williams v. State, 202 Ga. App. 485, 486 (414 SE2d 712) (1992); Harrell v. Louis Smith Mem. Hosp., 197 Ga. App. 189, 190 (397 SE2d 746) (1990). Since nothing in the record indicates that the drug tests conducted on the metal pipe and ziplock bags were ever reduced to writing, we can discern no violation of OCGA § 17-7-211 as to those items. Martin v. State, 214 Ga. App. 614, 619 (448 SE2d 471) (1994); Beck v. State, 196 Ga. App. 269 (396 SE2d 59) (1990); Herndon v. State, 187 Ga. App. 77 (369 SE2d 264) (1988). Accordingly, the trial court did not err in denying appellant’s motion in limine and in permitting the forensic chemist to testify regarding the analysis she conducted and the results thereof.

Decided August 25, 1997.

Mackinson & Katz,, Gail A. Mackinson, for appellant.

Thomas J. Charron, District Attorney, Bruce D. Hornbuckle, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

Ruffin, J., and Senior Appellate Judge Harold R. Banke concur.


author: Ruffin, Judge.

text:
    A97A1285.
    GIDEY v. THE STATE.
    (491 SE2d 406)
   Ruffin, Judge.

Jacob Gidey appeals from his conviction for driving under the influence of alcohol, driving with unlawful alcohol concentration, and failure to maintain lane. For reasons which follow, we affirm.

The record shows that DeKalb County police officer Steven Davis saw Gidey’s vehicle weaving on the interstate one morning at approximately 4:00 a.m. Officer Davis followed Gidey, noticed a continuing pattern of weaving, and eventually conducted a traffic stop. During the stop, Davis noticed that Gidey’s eyes were “red and watery” and detected a strong odor of alcohol on Gidey’s breath. At Davis’ request, Gidey exited the vehicle. Noting that Gidey appeared unsteady on his feet, Davis asked him to complete several field sobriety tests. According to Davis, Gidey was unable to accurately recite the alphabet, exhibited clues evidencing alcohol impairment in the horizontal gaze nystagmus test, and could not successfully perform the walk and turn test. Davis further testified that in his opinion, Gidey was under the influence of alcohol to the extent he was a less safe driver.

Davis arrested Gidey and transported him to the DeKalb County Police Station. At the station, intoximeter operator Gregory Waters tested Gidey’s breath twice on an Intoxilyzer 5000 machine. The first test showed Gidey’s alcohol level at .140, and the second test resulted in a .147 alcohol level.

The jury found Gidey guilty of driving under the influence of alcohol, driving with unlawful alcohol concentration, and failure to maintain lane. Immediately after the trial, Gidey was sentenced to 12 months of confinement, with 30 days in custody and the remainder on probation, 40 hours of community service, a single fine of $1,000 on the two alcohol counts, and a $1,000 fine for failure to maintain lane. The trial court subsequently denied Gidey’s motions for new trial and for reduction of sentence.

1. Gidey first argues that the trial court erred in admitting the results of the Intoxilyzer 5000 test because the State failed to meet the admissibility requirements of OCGA § 40-6-392 (a) (1) (A). We disagree.

Under OCGA § 40-6-392 (a) (1) (A), a breath test is valid if, among other things, it is “performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order. . . .” Section 40-6-392 (f) further provides that a properly prepared and executed inspection certificate for the breath-testing machine is admissible to satisfy this requirement.

Gidey claims that the State failed to present an adequate inspection certificate pursuant to OCGA § 40-6-392 (f) or otherwise establish that the electronic and operating components of the Intoxilyzer 5000 used in this case were in good working order. The record shows that the trial court excluded the inspection certificates offered by the State. The State’s other evidence, however, was sufficient to meet the requirements of OCGA § 40-6-392 (a) (1) (A).

Gregory Waters, the individual who conducted the breath tests, testified that he was trained and certified to operate the Intoxilyzer 5000 when he tested Gidey. Waters’ permit to operate the machine was introduced into evidence. According to Waters, the methods used to perform Gidey’s tests were approved by the Division of Forensic Sciences and the GBI. He conducted the tests using an Intoxilyzer 5000 machine that he had used before and has used since Gidey’s tests. Waters further testified that the machine functioned properly when he tested Gidey and did not appear to have any pieces or components missing. The machine also appeared to be in good working order, and the diagnostic tests the machine conducted on itself before the breath analysis revealed no problems. Waters admitted that he does not know what is under the machine’s “hood,” but testified that “there [was nothing] irregular about the machine that night[.]”

We find that the State sufficiently proved by competent circumstantial evidence that the breath tests were performed on a machine operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order. Bazemore v. State, 225 Ga. App. 741, 743-745 (2) (484 SE2d 673) (1997). As we have previously found, “substantial statutory compliance [with OCGA § 40-6-392 (a) (1) (A)] can be established by circumstantial evidence arising from the testimony of [the trained and certified individual] who operated the machine and performed the test.” Id. at 744. The trial court did not err in admitting the breath test results based upon Waters’ testimony. Id.

2. Citing again to OCGA § 40-6-392 (a) (1) (A), Gidey similarly claims that he was entitled to a directed verdict on the alcohol concentration charge because the State failed to show that the breath tests were performed on a machine operated with all its electronic and operating components properly attached and in good working order. As found in Division 1, however, the. State presented competent circumstantial evidence sufficient to make the showing required by OCGA § 40-6-392 (a) (1) (A). Gidey was not entitled to a directed verdict on this ground.

3. Finally, Gidey argues that the sentence imposed by the trial court is disproportionate and unduly harsh. The trial court sentenced Gidey to thirty days in custody, eleven months on probation, forty hours of community service, a single fine of $1,000 on the two alcohol counts, and a $1,000 fine for failure to maintain lane. We find no error.

The record shows that this was Gidey’s first offense for driving under the influence of alcohol. The statutory guidelines for sentencing a first offender under OCGA § 40-6-391 provide generally for (1) a fine of not less than $300 or more than $1,000; (2) a period of imprisonment of not less than ten days or more than twelve months, which may be suspended, stayed or probated; and (3) not less than forty hours of community service. OCGA § 40-6-391 (c) (1). The maximum punishment for failure to maintain lane is a fine up to $1,000 or confinement not to exceed 12 months, or both. OCGA §§ 17-10-3 (a); 40-6-1.

Gidey’s sentence falls within the range of statutorily prescribed punishment for his offenses. He argues on appeal, however, that his sentence is unduly harsh in comparison with the sentence normally imposed upon first offenders who elect to plead nolo contendere and that the trial court improperly punished him for exercising his right to trial by jury. This claim has no merit. We have recognized that a trial court does not engage in unconstitutional “vindictiveness” by imposing a harsher sentence following a jury trial than may have been imposed if the defendant had accepted a plea bargain. Allen v. State, 193 Ga. App. 670, 671-672 (388 SE2d 889) (1989). Rather, the trial court is “merely ‘following through’ on the inevitable and permissible ‘threat’ which is implicit in any plea bargain situation — that rejection of the plea bargain may diminish or destroy the very rationale for the imposition of a lenient sentence.” Id. at 671.

Decided August 8, 1997

Reconsideration denied August 26, 1997

Sidney L. Moore, Jr., for appellant.

. Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Joseph N. Walden III, Assistant Solicitors, for appellee.

Gidey’s sentence is not “ ‘grossly out of proportion to the severity of the crime.’ [Cit.]” Haygood v. State, 225 Ga. App. 81, 83 (2) (483 SE2d 302) (1997). Accordingly, we find no error in the trial court’s sentence.

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur.

       The sentencing guidelines established in OCGA § 40-6-391 (c) (1) govern penalties imposed on all DUI first offenders, including those who plead nolo contendere. OCGA § 40-6-391.1.


text:
    A96A0871.
    G. H. BASS & COMPANY v. FULTON COUNTY BOARD OF TAX ASSESSORS.
    (491 SE2d 640)
    Decided August 26, 1997.
   Johnson, Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga. 327 (486 SE2d 810) (1997), our decision in G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 222 Ga. App. 118 (1) (473 SE2d 253) (1996), is hereby vacated and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

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

Brenskelle & Perry, David P. Brenskelle, Brock E. Perry, for appellant.

W. Roy Mays III, for appellee.


author: Andrews, Chief Judge.

text:
    A97A1271.
    BENNETT v. THE STATE.
    (491 SE2d 481)
   Andrews, Chief Judge.

Bernard Bennett appeals his conviction of selling marijuana, contending that the trial court’s denial of his motion for new trial was error. That motion was premised on the court’s allowing the State to play an audio tape of the transaction which had not been previously provided to defense counsel, allowing the State to ask if the undercover officer led Bennett “into a life of crime,” and allowing into evidence through the informant of a statement by the undercover officer. We find no error and affirm.

1. Viewed with all inferences in favor of the jury’s verdict, the evidence was that on December 27, 1994, an undercover drug buy was conducted by a multi-jurisdictional drug task force, including Investigator Bolton, working undercover, and informant Mountain, who accompanied Bolton to a known drug area. Based on information previously received, Chief Hiebert had advised Bolton that Bennett was a target of the operation. Bolton, accompanied by Mountain, drove to the targeted area and spotted Bennett seated in a red Geo Tracker. Bolton, who was wearing a recording device, approached the driver’s side, but was directed by the driver to Bennett on the passenger’s side. Bolton spoke to Bennett and then Bennett produced a clear plastic bag containing marijuana. Bolton paid Bennett $40.

Although Bennett admitted being in the Tracker, he denied selling marijuana, contending that he had gotten out of the car and gone into a nearby house before the deal. The issue of which version of these events to believe was for the jury, which resolved the credibility issues in favor of the State. OCGA § 24-9-80. This Court will not weigh the evidence or determine witness credibility, but only determines the sufficiency of the evidence. Daras v. State, 201 Ga. App. 512 (1) (411 SE2d 367) (1991). The evidence here was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Bennett contends that the State’s failure to “submit” the audio tape to him before trial was error. When the audio tape was produced at trial, Bennett relied upon a letter written by his counsel which he apparently contends was a demand under OCGA § 17-6-1 et seq.

We note first that Bennett’s counsel did not dispute the State’s position that the defense was aware of the tape before trial, which would make any alleged error harmless. Lawson v. State, 224 Ga. App. 645, 648 (3) (c) (481 SE2d 856) (1997).

Decided August 26, 1997.

Watkins & Watkins, John D. Watkins, for appellant.

Richard A. Malone, District Attorney, Lance J. Hamilton, Assistant District Attorney, for appellee.

Additionally, as stated by the trial judge in ruling on this objection and affirmed by our review of the record, “there’s nothing in the file that required them to provide that information to you. I am familiar that you wrote a letter, but there is no actual demand made.” Bennett having failed to make the requisite demand under OCGA § 17-16-2 (a), there was no error in the State’s not providing it to him before trial. Hammitt v. State, 225 Ga. App. 21 (482 SE2d 437) (1997) (physical precedent); see Satterfield v. State, 256 Ga. 593, 597 (5) (351 SE2d 625) (1987) and Delay v. State, 213 Ga. App. 199, 200 (2) (444 SE2d 140) (1994) (both dealing with the comparable demand provisions of now repealed OCGA § 17-7-210).

3. During the direct testimony of Mountain, Bennett objected to Mountain’s repeating the instructions given to him by Chief Hiebert. No basis, however, was given for his objection and it is thereby waived. Perry v. State, 214 Ga. App. 444, 445 (1) (448 SE2d 74) (1994); see Turner v. W. E. Pruett Co., 202 Ga. App. 287 (1) (414 SE2d 248) (1991).

4. Finally, Bennett complains of the State’s asking Bolton, on redirect examination, if he had led Bennett “into a life of crime.” Bennett contends that this improperly placed his character in evidence. This inquiry, however, was made in response to Bennett’s cross-examination of Bolton, during which he attempted to show that Bennett had been entrapped by the officers.

We agree with the trial court that Bennett had opened the door to this line of questioning and cannot now complain. Ryan v. State, 188 Ga. App. 424 (373 SE2d 262) (1988); see Hill v. State, 223 Ga. App. 493, 494 (2) (478 SE2d 406) (1996).

Judgment affirmed.

Eldridge, J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A1396.
    CANAL INDEMNITY COMPANY v. CHASTAIN.
    (491 SE2d 474)
   Judge Harold R. Banke.

Leslie Chastain sustained injuries in an automobile collision with a pickup truck driven by Garrett Francis McLaughlin. Chastain initially sued McLaughlin, alleging that McLaughlin’s employer, Gibbo Enterprises, Inc. d/b/a Northside Used Cars (“Gibbo”), owned the truck and had given him express permission to use it. In this suit, Chastain did not name Gibbo or its insurer, Canal Indemnity Company (“Canal”) as parties. Although Chastain sent Canal a copy of the complaint by certified mail, McLaughlin never sought Canal’s assistance in his defense. See OCGA § 33-7-15 (c). After McLaughlin failed to answer the complaint, Chastain obtained a default judgment in the amount of $13,266.17, which included $794.17 in medical expenses, $2,382 for pain and suffering and $10,000 in punitive damages.

Chastain then commenced the instant case solely against Canal, alleging that because all her allegations against McLaughlin were admitted by default, Canal was obligated to satisfy the judgment. Both Chastain and Canal moved for summary judgment. Chastain characterized her claim as a direct action against a tortfeasor’s liability insurer to collect a judgment. See Bacon v. Liberty Mut. Ins. Co., 198 Ga. App. 436 (401 SE2d 625) (1991). Canal claimed that because its policyholder, Gibbo, sold the vehicle to McLaughlin three days before the accident, McLaughlin was not covered under the policy. It presented a bill of sale of the truck to McLaughlin dated three days before the collision and deposition testimony about the sale from Gibbo’s former vice president. Chastain then presented McLaughlin’s affidavit, attesting that the bill of sale and accompanying paperwork were forgeries and he never bought the truck at issue, but was driving it with express permission.

The trial court granted Chastain’s motion for summary judgment and denied Canal’s, finding that Chastain’s judgment against McLaughlin estopped Canal from raising the coverage issue. The trial court further held Canal’s failure to defend McLaughlin in the prior action foreclosed it from asserting any defenses in the instant case. Canal’s sole enumeration of error challenges the order granting summary judgment. Held:

An insurer’s duty to defend turns on the language of the insurance contract and the allegations in the complaint asserted against the insured. Bates v. Guaranty Nat. Ins. Co., 223 Ga. App. 11, 14 (2) (476 SE2d 797) (1996); Loftin v. United States Fire Ins. Co., 106 Ga. App. 287, 302 (127 SE2d 53) (1962) (duty to defend does not extend to suits outside coverage). Because the policy at issue is not a part of the record below, the trial court could not consider its terms, conditions, and coverage. Inasmuch as Chastain sought coverage under that policy, she bore the burden of including it in the record. OCGA § 24-4-1. In the absence of evidentiary support for its conclusion that Canal had a duty to defend McLaughlin, the trial court lacked a basis for granting summary judgment. Gentile v. Bower, 222 Ga. App. 736 (477 SE2d 130) (1996) (summary judgments are reviewed de novo).

In disposing of this case, the trial court assumed without benefit of the contract that Canal’s policy covered McLaughlin. Compare Ga. Farm &c. Co. v. Martin, 209 Ga. App. 237, 240 (4) (433 SE2d 315) (1993), rev’d on other grounds, 264 Ga. 347 (444 SE2d 739) (1994). In reaching this conclusion, the trial court apparently relied heavily on Canal’s failure to file a declaratory judgment action after commencement of the action against McLaughlin. However, we question whether the issue was ripe for judicial determination at that point when the complaint failed to mention insurance, the policyholder was not a named party, no demand for payment under Gibbo’s policy was made, and Canal had not denied the claim. Adams v. Atlanta Cas. Co., 225 Ga. App. 482, 485 (1) (484 SE2d 302) (1997); see Atlanta Cas. Co. v. Fountain, 262 Ga. 16, 18 (413 SE2d 450) (1992).

Nor can the issue of whether Canal was barred from litigating its defenses to coverage be determined from the record before us. “The longstanding general rule is that neither waiver nor estoppel can be used to create liability not created by an insurance contract and not assumed by the insurer under the terms of the policy.” Andrews v. Ga. Farm &c. Ins. Co., 226 Ga. App. 316, 317 (487 SE2d 3) (1997); see Annot., “Doctrine of Estoppel or Waiver as Available to Bring Within Coverage of Insurance Policy Risks Not Covered by its Terms,” 1 ALR3d 1139, 1144, § 2. Undoubtedly, the entry of the default judgment against McLaughlin would operate as an admission to the definite and certain allegations in the complaint, if Canal was McLaughlin’s privy. American States Ins. Co. v. Walker, 223 Ga. App. 194, 195 (1) (a), (b) (477 SE2d 360) (1996); see Public Nat. Ins. Co. v. Wheat, 100 Ga. App. 695, 701 (5) (112 SE2d 194) (1959) (insurer that elects not to defend its insured is bound in subsequent action by all issues previously litigated). But in the absence of a copy of the policy, we cannot determine whether there was privity of contract between McLaughlin and Canal or whether McLaughlin fit within the parameters of coverage. Davis v. Nat. Indemnity Co., 135 Ga. App. 793, 795 (2) (219 SE2d 32) (1975); see Walker, 223 Ga. App. at 195 (1) (b) (insurer has privity).

Further, in order to preclude relitigation, an “issue must also have been essential to the prior judgment.” (Emphasis in original.) Walker, 223 Ga. App. at 195 (1) (c); see Jenkins & Miller, Ga. Auto. Ins. Law (1994 ed.), § 14-2 (2) (insurer’s denial of coverage and refusal to defend leave policy defenses open for future litigation). From the face of the pleadings, it appears that the only allegations essential to the previous action were McLaughlin’s negligence, causation, and the amount of damages. The complaint in the initial action did not name Canal or Gibbo as parties or allege that McLaughlin was Canal’s insured. Nor did it aver that Gibbo’s policy contained a permissive use clause or that the vehicle at issue was covered by the policy. In fact, as noted, Chastain’s complaint never mentioned an insurance policy or insurance coverage. Walker, 223 Ga. App. at 195 (1) (a) (facts not well pleaded and forced inferences are not admitted by a default judgment). While these issues remain unresolved, we cannot say that Chastain was entitled to summary judgment as a matter of law.

Decided August 26, 1997.

Crim & Bassler, Terence D. Williams, for appellant.

Brack & Westee, Philip L. Westee, for appellee.

Mahone v. State Farm &c. Co., 188 Ga. App. 664 (373 SE2d 809) (1988) is distinguishable because the policy in that case was included in the record, enabling the court to analyze the parameters of coverage. That case turned in part on the fact that the policy did not specifically provide for coverage in the event of a transfer of ownership of the insured vehicle. Mahone, 188 Ga. App. at 666. Here, in the policy’s absence, we must reverse and remand for further fact finding.

Judgment reversed and case remanded.

Ruffin and Eldridge, JJ, concur.

       Gibbo declared bankruptcy after the cause of action arose.

       In the policy’s absence, we cannot ascertain whether Chastain could have properly named Canal as a party in the initial action. Bacon, 198 Ga. App. at 436 (when the policy permits, the injured party may join the tortfeasor’s insurer along with its insured in a direct action); Jenkins & Miller, Ga. Auto. Ins. Law, supra at § 6-1.

       Nor is there evidence that McLaughlin sought assistance in its defense or cooperated in his defense. OCGA § 33-7-15 (a); but see Starnes v. Cotton States Mut. Ins. Co., 194 Ga. App. 320, 322 (2) (390 SE2d 419) (1990).

        Martin provides no binding authority, but it too is distinguishable. Ga. Farm Bureau &c. Co. v. Martin, 214 Ga. App. 353 (448 SE2d 90) (1994). Although the policyholder was a party to the initial action and the insurer actively provided a defense on his behalf, in the injured party’s subsequent direct action against the insurer, the insurer argued that no coverage was available due to the lack of proper notice of the underlying action. The conclusion that the insurer waived its opportunity to litigate whether the tortfeasor was a permissive user turned on a rejection of that assertion. Martin, 209 Ga. App. at 240 (4).


author: Beasley, Judge.

text:
    A97A1427.
    CAMPBELL v. THE STATE.
    (491 SE2d 477)
   Beasley, Judge.

Marion Franklin Campbell was convicted of burglary (OCGA § 16-7-1), criminal attempt (OCGA § 16-4-1), and robbery (OCGA § 16-8-40). He enumerates as error the admission of an audio tape of a pretrial voice lineup, arguing that he did not consent to this use of his voice and that the lineup was impermissibly suggestive.

At about 5:00 a.m. on April 2, 1995, an intruder unlawfully entered a woman’s apartment, threatened her into submission, and unsuccessfully tried to rape her. She pleaded with him not to hurt her and offered all her cash for him to leave. He dragged her around her dark apartment until they found her purse, whereupon she gave him $200. Tearing out her phones, he placed her in the bathroom and left. The episode lasted about 15 minutes, during which time the intruder spoke often to the victim.

Immediately thereafter, the victim described the intruder to police as a white male about six feet tall, thin build, wearing a dark jacket, jeans, and work boots, and having a strong odor. She described his voice as slow and Southern. Because officers had encountered and talked with such a person in the vicinity the same night and had obtained his identity and recorded his tag number, they located a photo of him and showed it that same day to the victim with five photos of other white males. She quickly identified Campbell.

Four days later the police brought Campbell to the station for questioning and advised him of his Miranda rights. He signed a form consenting to the police recording him by audio and video machines while he made a statement. The victim had been trained and was experienced in recognizing voices, so the police dubbed a few sentences from the audio recording onto a new tape and recorded another five voices from white men with slow Southern accents who repeated the same few sentences. She readily identified Campbell’s voice as the voice of her attacker.

Campbell unsuccessfully moved to exclude the pretrial voice lineup on the grounds that it was impermissibly suggestive. At trial, the victim unequivocally pointed to Campbell as the perpetrator, and the pretrial voice lineup was also introduced. He moved for a new trial on the grounds that the lineup was impermissibly suggestive and, for the first time, that he had not consented to the use of his voice in the lineup. A new trial was denied.

1. Campbell does not identify any state constitutional grounds for the errors alleged on appeal, but cites only cases based on the federal constitution. See Redd v. State, 154 Ga. App. 373, 374 (2) (268 SE2d 423) (1980) (federal due process guarantee); Beasley v. State, 204 Ga. App. 214, 216 (1) (419 SE2d 92) (1992) (Fourth Amendment rights). We will therefore restrict our inquiry to the federal constitution. See Stephenson v. State, 206 Ga. App. 273 (424 SE2d 816) (1992) (court will not sua sponte consider state constitutional standards). Any independent rights Campbell has under the state constitution are waived.

2. Campbell contends the voice lineup was impermissibly suggestive. Under the due process guarantee of the federal constitution, an impermissibly suggestive pretrial lineup can deprive the defendant of a fair trial and invalidate an in-court identification. Simmons v. United States, 390 U. S. 377 (88 SC 967, 19 LE2d 1247) (1968). See Heyward v. State, 236 Ga. 526, 527 (224 SE2d 383) (1976). Simmons “set forth a two-part test to determine whether the procedure followed violated due process. The first inquiry is whether the procedure used was impermissibly suggestive. Only if it was, need the court consider the second question: whether there was a very substantial likelihood of irreparable misidentification.” (Citations and punctuation omitted.) Tate v. State, 153 Ga. App. 508, 509 (1) (265 SE2d 818) (1980).

(a) Because the purpose of objecting to pretrial identification is to exclude in-court identification, a defendant’s failure to object to the in-court identification can be fatal to the claim of prejudice. Where “in-court identification of appellant was not challenged, any error in admitting the out-of-court identification was harmless. [Cits.]” Evans v. State, 177 Ga. App. 820, 821 (1) (b) (341 SE2d 483) (1986).

Campbell did not object to the victim’s unequivocal visual identification of him in the courtroom. Thus, the admission of the pretrial voice lineup identification appears harmless. But because the voice lineup identification was based on sound rather than sight, it reinforced the validity of the in-court visual identification; we will therefore consider Campbell’s arguments.

(b) Campbell argues that the tape impermissibly suggested his voice because (i) in the introduction the police inform the victim that the voice of the suspect in custody is on the tape; (ii) the background noise surrounding the recording of his voice is noticeably different from the others; (iii) he is cut off while continuing to speak whereas the others stop after they have finished their statements; and (iv) the other five speakers speak in dull monotones, which suggests they were reading, whereas Campbell speaks with intonation and expression.

Telling the victim that the suspect’s voice is on the tape did not preclude her from determining that the voice of the man who came to her apartment was not on the tape. The supervising officer specifically testified and the court found that the victim understood she was only to determine whether the voice of her intruder was on the tape and if so, which one. This finding is not clearly erroneous. See Phillips v. State, 204 Ga. App. 698, 700-701 (1) (420 SE2d 316) (1992). Nevertheless, providing such information should not be done because it could influence the person being tested. At the least, it raises that question, and it affects the weight of the identification.

The background noise tape is not remarkably different amongst the voices. Each differs slightly from the others. Similarly, although Campbell’s voice is cut off at the end, another voice is cut off or stopped at the beginning and two others in the middle. There is no discernible pattern pointing to Campbell. The same is true of the intonations. Some are more animated than others, and Campbell’s is not remarkably different. And there is no evidence the police told the victim that the suspect was the only one who did not read his statement.

In Williams v. State, 163 Ga. App. 866 (295 SE2d 361) (1982), the appellant pointed to varying volume, manner of speech, and background noises to argue that his particular segment was singular and thus irreparably suggestive. We rejected this argument and explained “[t]hough there are certain differences in the volume and background noises, this indicates only that the voices were recorded at different times and different locations. Each of the identifying witnesses testified that he or she recognized the voice because of the peculiarities of the voice and not because the voice was singularly isolated by its setting. The jury was able to hear the tape played and judge for itself the likelihood of misidentification. This objection goes to the weight and credibility of the evidence [cits.], not to its admissibility.” Id. at 869 (3). The same obtains here.

All things considered, the evidence supports the court’s finding that the tape was not impermissibly suggestive. We need not even reach the second question.

(c) Even if the tape were suggestive, Campbell does not show it was so “impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons, supra, 390 U. S. at 384. “The factors to be considered . . . include the opportunity of the witness to view or hear the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” (Citations and punctuation omitted.) Jefferson v. State, 206 Ga. App. 544, 546 (2) (425 SE2d 915) (1992). See Neil v. Biggers, 409 U. S. 188, 199-200 (93 SC 375, 34 LE2d 401) (1972).

Just as the victim in Jefferson, the victim in this case, who was able to recognize voices, “was clearly focused on her assailant’s voice, had ample opportunity to hear him speak during the crime, and described his voice in detail. Her identification of his voice was unequivocal and made [within days] of the crime. Under all these circumstances, there was no substantial likelihood of irreparable misidentification. [Cits.]” Jefferson, supra, 206 Ga. App. at 546.

Even if there were some taint in the pretrial identification, “a witness’ in-court identification may be admitted if it has an independent origin.” (Citations and punctuation omitted.) Phillips, supra, 204 Ga. App. at 702 (2). Before the voice lineup, the victim had unequivocally identified Campbell in a photo lineup. She visually identified him again in the courtroom. Any error in admitting the voice lineup was harmless.

Furthermore, the victim’s identification of defendant fit police identification of Campbell as observed just before and just after the crimes were committed. Shortly past 1:00 a.m., an officer came upon Campbell in his parked car in a shopping center about half a mile from the victim’s apartment. He was alone, asleep, haggard, dirty, and smelling of alcohol. The officer obtained his identification and auto tag number. Close to 5:00 a.m., the officer saw the car parked a few hundred yards from the victim’s apartment. A white male was in it, but the officer did not see his face. When the officer drove by again shortly after 5:00 a.m., no one was in the car. At 5:25 a.m. at an under-speed limit six-minute driving distance from the victim’s apartment, the officer saw Campbell headed towards the highway. Eighteen minutes later the officer received the call regarding the victim’s ordeal.

3. Campbell contends he never consented to his voice being used in the voice lineup and therefore the lineup was inadmissible. He claims he consented only to the use of the content of his speech, not the manner in which he spoke.

(a) First, he does not identify the specific constitutional right violated by failing to obtain his consent. He cites Beasley, supra, 204 Ga. App. at 216 (1), which held that under the federal Fourth Amendment a urine sample was inadmissible for failure to obtain proper consent. But in United States v. Dionisio, 410 U. S. 1, 14 (93 SC 764, 35 LE2d 67) (1973), “the Supreme Court ruled that voice exemplars were not within the scope of the Fourth Amendment protections. ‘The physical characteristics of a person’s voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public. Like a man’s facial characteristics . . ., his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.’ [Cit.]” Reeves v. State, 139 Ga. App. 214, 215-216 (2) (228 SE2d 201) (1976).

Nor can a voice exemplar be a violation of the Sixth Amendment right against self-incrimination. “ ‘Requiring a suspect to give a voice exemplar for identification purposes does not violate his privilege against self-incrimination accorded by the United States . . . Constitution[ ]. [Cit.]’ [Cit.]” Jenkins v. State, 167 Ga. App. 840, 841 (1) (308 SE2d 14) (1983). Since the police can require a suspect to give a voice exemplar without violating his rights, Campbell’s alleged lack of consent is irrelevant.

Decided August 26, 1997.

Mitchell D. Durham, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Charles M. Norman, Nancy I. Jordan, Assistant District Attorneys, for appellee.

(b) Second, even if consent were required, Campbell’s grounds for objecting to the voice lineup both in his pretrial motion and at trial did not include the issue of lack of consent. It arose only in his motion for new trial, which was too late. “In order to preserve an objection upon a specific ground for appeal, the objection must be made at trial upon that specific ground. Norman v. State, 197 Ga. App. 333, 334 [(2)] (398 SE2d 395) (1990).” Smith v. State, 222 Ga. App. 366, 368 (3) (a) (474 SE2d 272) (1996). Objecting on specific grounds waives the grounds not asserted. McGee v. State, 205 Ga. App. 722, 727-728 (10) (423 SE2d 666) (1992) (court would not hear new grounds as to why audio tape should not be admitted).

(c) Aside from waiver, the argument fails on its merits. When Campbell consented to the audio recording of his statement, Campbell acknowledged in writing that he received the warning: “ANYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU IN A COURT OF LAW.” He claims this only gave the State permission to use the content of his statement, for impeachment purposes, and not the manner in which he spoke (his accent and voice inflections).

In Gadson v. State, 223 Ga. App. 342 (477 SE2d 598) (1996), defendant was arrested for assaulting a particular victim. His written consent allowing the State to draw his blood stated “ ‘[a]nything found by them can and may be used as evidence in any court of law.’ ” Id. at 345 (4). When the blood results were used in prosecutions involving other victims, he urged this exceeded the scope of his consent. We held this language was sufficiently broad to allow the State to use the blood results in other prosecutions, even without having explained such a possibility to defendant.

Similarly, Campbell’s general consent included the use of the audio recording of his statement in a voice lineup. Campbell’s citations to Beasley, supra, State v. Gerace, 210 Ga. App. 874 (437 SE2d 862) (1993), and Deckard v. State, 210 Ga. App. 421 (436 SE2d 536) (1993), are unavailing, for in each the police either told defendant the evidence was sought only for a specific purpose or affirmatively misled defendant as to the consequences of his not consenting.

Judgment affirmed.

McMurray, P. J, and Smith, J., concur.