author: Carley, Presiding Judge.

text:
    A92A1622.
    KIRKLAND v. THE STATE.
    (424 SE2d 638)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of possession of a controlled substance, driving after having been declared an habitual violator, driving under the influence, driving without insurance, and two counts of causing serious injury by vehicle. He appeals from the ffeidgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant moved to dismiss the indictment on the ground that it “was based solely on hearsay evidence. . . .” This motion to dismiss the indictment was properly denied. Felker v. State, 252 Ga. 351, 366 (2a) (314 SE2d 621) (1984). “It is not contended that there was no evidence introduced before the grand jury. ... It has never been the practice in this State to go into an investigation to test the sufficiency of the evidence before the grand jury.” Powers v. State, 172 Ga. 1 (3) (157 SE 195) (1931). “A motion to quash an indictment because of insufficient evidence will not be entertained by the court, the question being one of fact for the [grand] jury.” Cox v. State, 3 Ga. App. 609, 610 (3) (60 SE 283) (1908).

2. In one of the two counts charging appellant with causing serious injury by vehicle, it was alleged that appellant’s act of driving under the influence had rendered the victim’s left foot useless. In the other count, it was alleged that appellant’s act of driving under the influence had rendered useless the right foot of the same victim.

Although appellant could be prosecuted on both of these counts, he could not be convicted and sentenced on both. The single instance of appellant’s conduct in driving under the influence was “used up” in proving one of the counts and could not be used again as the predicate for a conviction and sentence on the other. See Mitchell v. State, 187 Ga. App. 40, 44 (4) (369 SE2d 487) (1988); Davis v. State, 186 Ga. App. 491, 492 (2) (367 SE2d 884) (1988). Compare Knight v. State, 190 Ga. App. 87, 88 (2) (378 SE2d 373) (1989); Talley v. State, 164 Ga. App. 150, 153 (7) (296 SE2d 173) (1982), aff'd 251 Ga. 42 (302 SE2d 355) (1983). “There being error, this case must be remanded to the trial court for expunction from the record of the conviction and sentence on either [the] [c]ount [alleging the victim’s left foot had been rendered useless by appellant’s conduct in driving under the influence] or [the] [c]ount [alleging the victim’s right foot had been rendered useless by that same conduct].” Davis v. State, supra at 493 (2).

3. In one of his enumerations of error, appellant urges that “[a] substantive hearing on the facts of each incident was required before similar transaction evidence could be admitted.” However, the record shows that a hearing was held in the instant case. At that hearing, counsel for the State informed the court of the existence of appellant’s prior convictions in neighboring counties for driving after having been declared an habitual violator and for driving under the influence. See Houston v. State, 187 Ga. App. 335, 337 (2) (370 SE2d 178) (1988); Hall v. State, 181 Ga. App. 92, 93 (lc) (351 SE2d 236) (1986).

At trial, appellant did not object to the admission of the evidence on the ground that the State had failed to demonstrate sufficient similarity. Hunter v. State, 202 Ga. App. 195, 196 (3) (413 SE2d 526) (1991). Compare Stephens v. State, 261 Ga. 467 (6) (405 SE2d 483) (1991). Moreover, it appears that, standing alone, the face of the prior indictments would be sufficient to demonstrate similarity to those crimes for which appellant was being tried. See Moore v. State, 202 Ga. App. 476, 479 (2b) (414 SE2d 705) (1992); Banks v. State, 201 Ga. App. 266, 267 (1) (410 SE2d 818) (1991). Unlike assault or robbery or other crimes against the person or property of a victim and which can be committed under varying factual circumstances, the crimes of driving after having been declared an habitual violator and driving under the influence are essentially committed under the same factual circumstances. The type of vehicle driven or the degree or source of intoxication may vary, but it is the simple act of driving while having the status of an habitual violator or while under the influence that establishes the commission of those crimes. A prior act of driving while having that status or while in that condition would, regardless of any slight variance of circumstances, be relevant to prove bent of mind or course of conduct. See Blane v. State, 195 Ga. App. 504 (1) (393 SE2d 759) (1990); Simon v. State, 182 Ga. App. 210 (1) (355 SE2d 120) (1987).

4. Appellant enumerates as error the trial court’s failure to sustain objections to several questions propounded by counsel for the State to prospective jurors on voir dire.

“ ‘The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. The control of the pursuit of such determination is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review.’ [Cit.]” Frazier v. State, 138 Ga. App. 640, 643 (2c) (227 SE2d 284) (1976). The questions propounded in the instant case were calculated to determine whether the prospective jurors might harbor some prejudice against the State, and those questions could in no way have harmed appellant. See Griffeth v. State, 154 Ga. App. 643 (1) (269 SE2d 501) (1980).

5. The trial court did not err in allowing the investigating officer to remain in the courtroom after the rule of sequestration had been invoked. Edwards v. State, 171 Ga. App. 264, 265 (319 SE2d 101) (1984). Likewise, the trial court did not err in allowing the victim, who had been sequestered, to remain in the courtroom after she had given her testimony. Watts v. State, 200 Ga. App. 54, 56 (6) (406 SE2d 562) (1991).

6. Over appellant’s objection, the trial court admitted photographs taken of the victim while she was hospitalized.

The seriousness of the victim’s injuries was a relevant inquiry, here is no merit in appellant’s contention that the photographs were ^admissible as being merely cumulative of the oral testimony regarding the extent of the victim’s injuries. “[Demonstrative evidence in the form of [photographs] can scarcely be deemed to be only cumulative of [witnesses’] merely oral testimony. [Cit.]” Brinson v. State, 201 Ga. App. 80, 81 (1) (410 SE2d 50) (1991).

The photographs do not evince any “further mutilation” of the victim, but merely the non-intrusive medical response, such as the placement of casts and bandages, to such mutilation as had been inflicted by appellant. Compare Heard v. State, 257 Ga. 1, 2 (2a) (354 SE2d 115) (1987). In any event, there is no contention that the photographs could easily have been cropped to mask all but the injuries sustained in the collision, and appellant did not so move. Compare Heard v. State, supra at (2a). Instead, appellant moved to exclude the photographs in their entirety. There was no error in admitting the photographs over this broad objection. “Upon the tender of demonstrative or documentary evidence, ‘ “part of which is admissible and part inadmissible, and the objection is to the evidence as a whole, it is not error to admit it all.” (Cits.)’ [Cit.] Accordingly, even assuming that certain items in the photographs may not have been shown to be directly relevant to appellant’s instant prosecution, it was not error to fail to sustain the objection to the admission of the photographs in their entirety.” Castellon v. State, 200 Ga. App. 478, 479 (1) (408 SE2d 493) (1991).

7. The trial court did not err in allowing a physician to testify that, in his opinion, the victim faced the increased likelihood of developing arthritis as the result of the trauma suffered in the collision. Central Truckaway System v. Harrigan, 79 Ga. App. 117, 126 (5) (53 SE2d 186) (1949).

8. At the time of the collision, appellant was driving an automobile which had been leased to his mother. At trial, the trial court correctly overruled appellant’s objection to testimony by the lessor regarding the terms and conditions upon which the automobile had been leased to appellant’s mother. This testimony was relevant to establish whether appellant was an authorized driver of the leased automobile so as to have insurance coverage under the lessor’s policy. Whether appellant had insurance coverage under the lessor’s policy was obviously relevant to that count of the indictment charging him with having no insurance. “Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court, and if an item of evidence has a tendency to help establish a fact in issue, that is sufficient to make it relevant and admissible. [Cit.] Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. [Cit.]” Lewis v. State, 158 Ga. App. 586, 587 (1) (281 SE2d 331) (1981).

9. Over appellant’s hearsay objection, a witness was properly allowed to testify as to statements made by the victim’s five-year-olffi child at the scene immediately after the collision. The words spoken by the child were admissible as part of the res gestae and were not inadmissible simply because of his young age. Grant v. State, 124 Ga. 757, 759 (4) (53 SE 334) (1906).

10. During its direct examination of a nurse, the State sought admission of a record which had been made by the nurse herself. Appellant objected to the admission of the record, on the ground “that the best and highest evidence would be [the nurse’s] testimony on this subject. . . . [S]he can testify to the record herself.” The trial court did not err in overruling this objection. “That the person making a written statement is in court does not render the written statement made by him inadmissible. [Cit.]” Creel v. State, 216 Ga. 233, 235 (3a) (115 SE2d 552) (1960).

Appellant’s further contention on appeal that the trial court erred in allowing the record to go out with the jury was not preserved for review. “Appellant’s continuing objection against admission of this evidence did not reach the question of its going out with the jury. Here, the court properly permitted [the record] to go to the jury room in the absence of a proper objection. [Cits.]” Sanders v. State, 246 Ga. 42, 43 (2) (268 SE2d 628) (1980).

11. The passenger in appellant’s vehicle was called as a witness for the State. When this witness testified that she had suffered “minor brain damage” in the collision, appellant objected on the ground that such testimony related to “another crime . . . another serious injury by motor vehicle crime that is not a crime charged [in the instant case].” This objection was properly overruled. “ ‘The [S]tate is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. [Cit.] This is true even if the defendant’s character is incidentally placed in issue.’ [Cits.]” Garrett v. State, 188 Ga. App. 176 (1) (372 SE2d 506) (1988). “ ‘[I]f the separate crime was committed as a part of the same transaction as that for which the accused is being tried, and forms a part of the res gestae’ it is admissible. . . . [Cit.]” Presley v. State, 177 Ga. App. 611, 613 (2a) (340 SE2d 253) (1986).

12. The evidence showed that, at the time of the collision, appellant had 3, 4-methlylenedioxyamphetamine in his system and also had a quantity of that Schedule I controlled substance in his possession. At trial, the State proffered testimony by two expert witnesses that, in their knowledge and experience, the drug was a hallucinogenic which also caused certain physical effects in those who used it. Appellant objected to the introduction of this testimony on the ground that it related to properties of the drug which had not been ''disclosed by the State in the scientific report provided to him pursuant to his OCGA § 17-7-211 motion. The trial court correctly overruled appellant’s objection. The expert witnesses were not testifying as to any undisclosed scientific test results of appellant’s own bodily fluids. Compare Durden v. State, 187 Ga. App. 154, 155 (1) (369 SE2d 764) (1988), aff'd, 258 Ga. 720 (375 SE2d 610) (1988). They were merely testifying, as experts, on the characteristics of the drug that the disclosed scientific test results had shown to be present in appellant’s system. Accordingly, their testimony was clearly admissible because it “did not originate in the [Sjtate’s investigation and preparation for trial, and merely constituted a portion of the body of scientific experience, training, and knowledge which [each witness] brought to the stand in his capacity as an expert, i.e., his expert qualifications.” State v. Mulkey, 252 Ga. 201, 203 (2) (312 SE2d 601) (1984).

13. Appellant enumerates as error the denial of his motion for a directed verdict of acquittal on the charge of driving without insurance. However, the evidence showed that appellant was operating a leased vehicle without insurance coverage under the lessor’s policy. Appellant was further shown to be an habitual violator who could not legally operate any vehicle and who, thus, presumably had no personal policy of automobile insurance. The investigating officer testified that he had been unable to “obtain any documents or proof of insurance or indication that appellant had insurance. ...” “In taking a common sense approach to this matter, [we conclude that] the jury was authorized to infer in the absence of evidence to the contrary that [appellant had no insurance] on the date of the offense.” Nash v. State, 179 Ga. App. 702, 706 (6) (347 SE2d 651) (1986).

14. The State sought to introduce an habitual violator “package” of certified records of the Department of Safety. This “package” contained not only the official notice of the revocation of appellant’s license, but also appellant’s entire driving record. Appellant conceded the admissibility of the revocation notification, but objected to the remainder of the “package” as constituting “extraneous” material. The trial court’s refusal to sustain this objection to all but the revocation notification is enumerated as error.

The State’s reliance upon Milner v. State, 191 Ga. App. 726, 727 (4) (382 SE2d 666) (1989) as authority for the proposition that the entirety of the “package” was admissible is misplaced. Milner, supra at 727 (4) merely holds that “this court has repeatedly found no reversible error in the admission of the complete driving record despite [the inclusion therein] of such irrelevant other traffic offenses. [Cit.]” (Emphasis supplied.) As the cases cited in Milner clearly demonstrate, this court has repeatedly found error in the admission of the complete driving record, but has nevertheless found that error to be harmless under the circumstances presented in those cases. “[I]t isN notice of one’s status as a non-licensed habitual violator, not the driving record underlying that status, that is an ‘essential element’ of [OCGA § 40-5-58] (c). Therefore, contrary to the [S]tate’s assertions, appellant’s entire driving record was ‘immaterial’ to appellant’s prosecution under [OCGA § 40-5-58] (c).” Hester v. State, 159 Ga. App. 642, 644 (2) (284 SE2d 659) (1981). It follows that the trial court erred in failing to sustain appellant’s objection to the admission of all but the revocation notification contained in the habitual violator “package.” The issue thus becomes whether, under the circumstances of the instant case, this error mandates reversal or was harmless.

As to appellant’s convictions for driving after having been declared an habitual violator and driving under the influence are concerned, the error was harmless. Independent evidence of appellant’s prior convictions for those offenses was otherwise admitted as similar transactions. See Division 3. Head v. State, 246 Ga. 360, 363 (7) (271 SE2d 452) (1980); Hester v. State, supra at 644 (2). Accordingly, the listing of those prior offenses in the “package” was merely cumulative of that independently admitted similar transaction evidence. Moreover, the record demonstrates that there was overwhelming evidence of appellant’s guilt of driving after having been declared an habitual violator and of driving under the influence. Key v. State, 166 Ga. App. 546, 547 (305 SE2d 20) (1983); Hester v. State, supra at 644 (2); Beasley v. State, 157 Ga. App. 94, 95 (276 SE2d 144) (1981).

Appellant’s conviction for causing serious injury by vehicle was predicated upon his act of driving under the influence. Since the error in admitting the entirety of the “package” was harmless as to appellant’s underlying conviction for driving under the influence, it follows that the error was likewise harmless as to his conviction for causing serious injury by vehicle.

Insofar as appellant’s convictions for possession of a controlled substance and driving without insurance are concerned, “[w]e fail to see how [appellant] could have been prejudiced by the admission of the entire driving record.” Noles v. State, 164 Ga. App. 191, 193 (2) (296 SE2d 768) (1982). Appellant’s prior driving record could have no prejudicial bearing on his conviction for the non-traffic-related drug possession offense. Moreover, the evidence as to appellant’s guilt of that offense was overwhelming. Although driving without insurance is a traffic offense, there appears to be nothing in appellant’s prior driving record which could have had a prejudicial bearing on his conviction for this offense and appellant suggests nothing. Accordingly, “[t]he irrelevant matter on the printout was thus superfluous and could not have contributed to the verdict. [Cits.]” Noles v. State, supra at 193 (2).

Accordingly, “[w]e do the same here[,]” as we did in Milner, stipra at 727 (4), and find no reversible error in the trial court’s failure to sustain appellant’s valid objection to the admission of the entirety of the habitual violator “package.” However, we would caution that our holding should not be construed as authority for the State to seek to introduce and for the trial courts of this state to admit such irrelevant evidence. We will not hesitate to reverse convictions where the admission of a defendant’s entire driving record is prejudicial and not clearly harmless.

15. The trial court did not err in refusing appellant’s request to charge on the “voluntariness” of his consent to a scientific testing of his bodily fluids. Pursuant to OCGA § 40-5-55, appellant had already voluntarily consented to the testing, as a matter of law, through his act of operating a motor vehicle in this state and the only relevant inquiry was “whether the officer told [appellant] of his implied consent rights in a timely fashion ([cits.]), and whether [appellant] revoked the implied consent. [Cit.j” State v. Highsmith, 190 Ga. App. 838, 839 (380 SE2d 272) (1989).

16. It is clear that a separate conviction for driving under the influence can merge into a conviction for first degree vehicular homicide and, for the same reason, appellant’s separate conviction for driving under the influence must be deemed to have merged into his conviction for causing serious injury by vehicle. See Duncan v. State, 183 Ga. App. 368, 370 (5) (358 SE2d 910) (1987).

17. Appellant enumerates as error the trial court’s refusal to charge on reckless conduct as a lesser included offense of driving under the influence.

Appellant’s only conduct at issue is his operation of a vehicle. By virtue of its codification in Article 15 of Title 40, reckless driving is as “serious [a] traffic offense” as driving under the influence. However, as defined in OCGA § 40-6-390 (a), reckless driving requires proof of a specific act which evidences a “reckless disregard for the safety of persons or property. . . .” See Whiteley v. State, 188 Ga. App. 129, 132 (5) (372 SE2d 296) (1988). Driving under the influence, on the other hand, requires no proof of such a specific act, but proof of a general intoxicated condition. Moss v. State, 194 Ga. App. 181, 182 (390 SE2d 268) (1990). Considering that the elements are different and that both reckless driving and driving under the influence are equally “serious traffic offenses,” it would appear that they are entirely separate and distinct crimes and that neither can ever be considered a lesser included offense of the other, as either a matter of law or of fact.

However, we need not determine in the instant case whether reckless driving can ever be considered a lesser included offense of driving under the influence. Either reckless driving or driving under the influence can be the predicate offense for a conviction for causing serious injury by vehicle. OCGA § 40-6-394. Accordingly, it is ultimately immaterial whether reckless driving can be a lesser included offense of driving under the influence and should have been charged in the instant case. Even if such a charge had been given and a verdict of guilty of reckless driving had been returned, appellant would be entitled to no relief other than that already afforded him under our holding in Division 16. Under the facts of this case, a separate conviction for reckless driving would merge into the conviction for causing serious injury by vehicle. Since a failure to charge on reckless driving as a lesser included offense of driving under the influence would not affect the conviction for the greater offense of causing serious injury by vehicle, the issue is moot.

18. In one instance during its original charge, the trial court inadvertently referred to “the accident” rather than to “the incident.” The trial court recalled the jury and gave a recharge to correct this slip of the tongue. On appeal, appellant urges that the trial court erred in failing also to recharge the jury on his defense of “accident” under OCGA § 16-2-2.

The purpose of the recharge was not to repeat an instruction previously given in the original charge. The purpose was to correct an erroneous slip of the tongue made in the original charge. Accordingly, the jury was not given the same charge twice. Instead, the jury wp" given the correct charge once. Compare Brannon v. State, 163 Ga. App. 340, 341 (2) (295 SE2d 110) (1982). The recharge did not relate to a point favorable to the State. It corrected a slip of the tongue made in the context of a charge on a neutral evidentiary issue. See Taylor v. State, 195 Ga. App. 314, 315 (2) (393 SE2d 690) (1990). Compare Brannon v. State, supra at 341 (2). “[T]he recharge taken alone would not have left an erroneous impression in the minds of the jury as to . . . appellant[’s defense of accident]. No erroneous impression was left in this case.” Atwell v. State, 204 Ga. App. 187, 189 (4) (419 SE2d 77) (1992). See also Dyer v. State, 167 Ga. App. 310, 311 (3) (306 SE2d 313) (1983).

19. The judgments of conviction and sentences for driving under the influence and for one of the two counts of causing serious injury by vehicle are reversed. The judgments of conviction and sentences for possession of a controlled substance, driving after having been declared an habitual violator, driving without insurance, and for the other of the two counts of causing serious injury by vehicle are affirmed.

Decided October 28, 1992.

William T. Hankins III, for appellant.

David McDade, District Attorney, Aaron S. Weinstein, William H. McClain, Assistant District Attorneys, for appellee.

Judgments affirmed in part and reversed in part.

Pope and Johnson, JJ., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A92A1006.
    SHARPE v. THE STATE.
    (424 SE2d 332)
   Andrews, Judge.

Sharpe, convicted of rape, aggravated sodomy, and kidnapping, appeals, contending that the court’s allowance of the victim’s in-court identification of him was error.

Prior to trial, Sharpe filed his motion in limine, seeking to prohibit the victim from identifying him in court on the sole ground that “[a]ny in court identification . . . will be tainted by the identification which resulted from the one-on-one ‘show up’ which was impermissibly suggestive.” No authority was cited in the motion and there was no request to exclude evidence of the out-of-court identification. Here, Sharpe relies on Stovall v. Denno, 388 U. S. 293 (87 SC 1967, 18 LE2d 1199) (1967), and its progeny, contending that the show-up as violative of his due process rights.

The evidence was that the victim, sleeping at her mother’s house, Answered the door at 10:30 a.m. Sharpe was there, inquiring about an apartment for rent in the complex which was run by the victim’s stepfather. She let him in to use the telephone to call her stepfather, which he did. She then directed him toward the apartment and he left. Later, Sharpe returned, again asking to use the phone. The victim, still in her night clothes and robe, let him in. He asked for a drink of water and, as she turned to get it, he grabbed her from behind, put a pocketknife to her throat, and committed the acts alleged. He was in her apartment for 30 minutes or so the second time. Sharpe then forced her to leave the apartment with him and drive him away in her car. They drove around for a while, at which point the victim pulled into a market and asked Sharpe to get out, which he did.

Decided October 29, 1992.

McRae & English, W. Boyd English, for appellant.

H. Donnie Dixon, Jr., District Attorney, John A. Rumker, Assistant District Attorney, for appellee.

The victim and her family then contacted police and a lookout was posted for a man wearing blue jeans and a turquoise shirt. About 15 minutes later, an officer spotted Sharpe, who was wearing that attire, and stopped to investigate. Upon patting him down, the officer found a pocketknife. A detective arrived and the two officers asked Sharpe if he would go out to the hospital where the victim was being examined and see if she could identify him. He agreed.

He was placed in the back of the patrol car and driven to the door of the emergency room. When the victim saw him, within a half hour of having left him at the market, she immediately identified him. The procedure used here fully comported with the due process requirements of Stovall. Baines v. State, 201 Ga. App. 354, 357 (4) (411 SE2d 95) (1991); McCounly v. State, 191 Ga. App. 266, 267 (2) (381 SE2d 552) (1989).

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.


author: Andrews, Judge. Beasley, Judge,

text:
    A92A1357.
    POWELL v. THE STATE.
    (424 SE2d 333)
   Andrews, Judge.

Powell was convicted by a jury of trafficking in cocaine and of two counts of obstructing an officer. On appeal, he claims the prosecutor made improper comments to the jury during closing argument, and that the trial court erred in refusing to grant his motion for a mistrial on this ground.

During closing argument the prosecutor argued that Powell’s testimony at trial was not believable, and added: “The State submits you shouldn’t be surprised that he didn’t get up here yesterday and confess. If he wanted to confess, he could have done it a long time ago. Because he didn’t confess, we’re trying this case.” Powell objected and moved for a mistrial on the basis that such argument implied the defendant should have confessed, but did not, and that his testimony at trial was a lie.

On appeal, Powell argues first that these comments were an improper statement of the prosecutor’s personal belief in Powell’s guilt. It is improper for a prosecutor to argue his personal belief in the defendant’s guilt, but he may properly argue that such guilt is a conclusion which should be drawn from the proven facts. Manning v. State, 123 Ga. App. 844 (182 SE2d 690) (1971). We find no statement of the prosecutor’s personal belief in these comments. Moreover, no objection on this basis was made in the trial court, so this argument was not preserved for appellate review. Morton v. State, 168 Ga. App. 18, 19 (308 SE2d 41) (1983).

Secondly, Powell contends these remarks were an impermissible comment on his right to remain silent at the time of his arrest. We assume for purposes of this appeal that the defendant’s objection at trial was sufficient to preserve this ground for review. “In Doyle v. Ohio, 426 U. S. 610 (96 SC 2240, 49 LE2d 91) (1976), the Supreme Court held that since Miranda warnings may induce a defendant’s post-arrest silence by implicitly assuring him that his silence would not be used against him, it would be fundamentally unfair and a violation of due process to allow the defendant’s silence to be used to impeach him at trial.” Bennett v. State, 254 Ga. 162, 165-166 (326 SE2d 438) (1985). However, the government may comment on defendant’s silence prior to the time of his arrest, or after arrest, but before Miranda warnings are given. Jenkins v. Anderson, 447 U. S. 231 (100 SC 2124, 65 LE2d 86) (1980); Fletcher v. Weir, 455 U. S. 603 (102 SC 1309, 71 LE2d 490) (1982). Here, in an effort to bolster the State’s attack on the defendant’s credibility, the prosecutor’s comments about the defendant’s failure to confess refer in part to the defendant’s pre-trial silence. Nevertheless, no Doyle violation has been established in this case. Since Doyle does not apply to cases in which the defendant has not received any Miranda warnings, and the present record contains no evidence of such warnings, “we cannot determine from the record before us whether the silence used by the State to [attack the defendant’s credibility] occurred before or after Miranda warnings were given.” (Citations and punctuation omitted.) Mattox v. State, 196 Ga. App. 64 (395 SE2d 288) (1990). The burden is on the defendant to show that the Miranda warnings were given prior to the post-arrest silence used by the State for impeachment purposes. Id. at 65. Where the defendant fails to show asserted error affirmatively by the record, there is no cause for reversal.

Judgment affirmed.

Birdsong, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur without reaching the question with respect to silence at arrest, which question the court resolves on federal constitutional grounds. The question is not properly before us, because appellant did not object on any ground based on his silence at arrest. His objection below related to his trial testimony. Pruitt v. State, 176 Ga. App. 317, 321 (3) (335 SE2d 724) (1985). The trial court had no opportunity to consider the contention now made, so it cannot be charged with any error in connection with it.

Decided October 29, 1992.

Hawk, Hawk & Lyons, Charles H. Lyons III, for appellant.

Michael C. Eubanks, District Attorney, Daniel W. Hamilton, Richard E. Thomas, Assistant District Attorneys, for appellee.


author: Birdsong, Presiding Judge.

text:
    A92A1376.
    BOWLING et al. v. GOBER.
    (424 SE2d 335)
   Birdsong, Presiding Judge.

This is an interlocutory review of the state court’s order denying the motion for summary judgment of appellant Hooters of Memorial Drive, Inc. (Hooters).

Appellee leased a car for his daughter’s use. A truck driven by appellant/defendant Mark Alan Bowling crossed the highway center-line colliding with the leased car. Bowling had allegedly been drinking at Hooters. Thereafter, appellee filed suit against appellants for property damage to the vehicle. His amended complaint contains a prayer for recovery of compensatory damages for the full value of the automobile and for associated punitive damages, litigation expenses, and attorney fees.

Before filing the lawsuit, appellee received a settlement check from appellant Bowling’s insurance company (Allstate) for $4,687.50 for the property damage to the leased vehicle. The check was payable jointly to Bowling and the vehicle lessor. Appellee attests that, although this payment was accepted from the insurance company, he executed no release of any claim against any party because of the collision, executed no covenant not to sue, and did not accept a settlement offer from either appellant Bowling or appellant Hooters. Appellee further attests he was not fully compensated for vehicle damages, as he had to pay an additional $230.70 out-of-pocket expense to the lessor in addition to endorsing the joint check for $4,687.50 to lessor. This evidence of record is uncontroverted.

The record reflects that the Allstate appraiser calculated his “initial valuation of the car” as $6,250, and after deducting the salvage value of $1,562.50, pursuant to appellee’s request that he be allowed to keep the wreckage as evidence in a forthcoming lawsuit, tendered appellee the $4,687.50 check. A “Total Loss and Salvage Report,” attached as an exhibit to the appraiser’s affidavit, reflects that the initial appraisal amount was determined by taking an average retail figure of $6,025, deducting $250 as mileage factor, leaving a net of $5,775 to which $475 was added for vehicle accessories, thereby resulting in a valuation of $6,250. A $60 car condition deduction apparently was waived following negotiations with appellee. This same report reveals in paragraph 2 that the estimated salvage value of the vehicle is either $350 or $250; however, a “Diary Activity” entry on the same form reflects that appellee was informed that an amount equal to 25 percent of the appraised value of the vehicle (25 percent of $6,250) normally was received for salvage. Thus, appellant Bowling was offered and accepted the sum of $4,687.50. It is uncontroverted that the collision damage resulted in the car being declared a total loss; the vehicle was “totaled.”

The trial court converted Hooters’ motion to dismiss into a motion for summary judgment, and denied the motion. Held:

1. Examination of both the original and the amended complaint of appellee reveals a lack of compliance with the notice requirement of the CPA regarding any alleged tortious interference of contract (see generally OCGA §§ 9-2-3; 51-1-1; 51-1-6; 51-1-8; compare Union Camp Corp. v. Southern Bulk Indus., 193 Ga. App. 90 (386 SE2d 866) with City of Albany v. Oxford Constr. Co., 221 Ga. 872 (148 SE2d 324)) by destruction of appellee’s right to exercise an option to purchase at the conclusion of the lease. At the time of the trial court’s order denying summary judgment, subject complaint did not provide sufficient notice of such a tort within the meaning of Bazemore v. Burnet, 117 Ga. App. 849, 852 (161 SE2d 924). Accordingly, the trial court erred in basing, at least in part, the denial of summary judgment on any type of tortious interference with a contract right to exercise an option to purchase. Thus, we must determine whether genuine issues of material fact remained as to the claim of damage for tortious destruction of the car.

2. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843).

3. Appellants assert they have met their burden pursuant to Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474), thus requiring grant of summary judgment, because appellee obtained full satisfaction of his automobile damage claim from the insurance company. If full satisfaction has been obtained, the law will not allow double recovery. OCGA § 9-2-4; compare Overstreet v. Ga. Farm &c. Ins. Co., 182 Ga. App. 415 (355 SE2d 744) (physical precedent only).

As a general rule “[Recovery for damages to an automobile may be based on the difference in the value before the injury and the value afterwards; alternatively, it may be based on the reasonable value of necessary repairs together with hire value of the vehicle while incapable of use and the value of permanent impairment, provided the aggregate amount of those items does not exceed the value of the automobile before the accident, with interest.” Knight v. Stevens Logging, 173 Ga. App. 359, 360 (1) (326 SE2d 494). Value for purposes of this rule means “fair market value.” Battle v. Strother, 171 Ga. App. 418, 421 (5) (319 SE2d 887); Southern Crate &c. Co. v. McDowell, 163 Ga. App. 153, 155 (3) (293 SE2d 541); Rutledge v. Glass, 125 Ga. App. 549, 550 (2) (188 SE2d 261); Cobb & Eldridge, Ga. Law of Damages, Motor Vehicles, § 30-2, and cases cited at p. 524, n. 1. When a vehicle is destroyed to the extent that it cannot be repaired economically, the “fair market value” after the accident would be the salvage value, provided there exists evidence of physical damage to the vehicle sufficient to establish the vehicle was not so repairable. Cobb & Eldridge, supra at § 30-2, p. 523.

Pretermitting the question whether appellee could claim any necessary out-of-pocket lease expenses, which were separate and distinct expense items unrelated to any vehicle repair or replacement costs, but which would arise as a consequence of the collision causing a cessation to the rights and duties flowing from the automobile lease contract between appellant Bowling and the apparent true owner/lessor of the vehicle (compare OCGA § 51-12-7 as interpreted in Denton v. Con-Way &c. Express, 261 Ga. 41 (402 SE2d 269) with Firestone &c. Co. v. Jackson Transp. Co., 126 Ga. App. 471 (191 SE2d 110) and Lamb v. Landers, 67 Ga. App. 588 (4) (21 SE2d 321)) is whether a genuine question of material fact exists regarding the alleged full settlement under the general rule as stated in Knight, supra.

Examination of the affidavit and Total Loss Salvage Report attached thereto, found in the supplemental record, reveals that a genuine issue of material fact exists for the jury’s determination whether appellee has received full satisfaction of his claim so as to be precluded from recovery under the doctrine prohibiting double recovery. First, the insurance adjuster avers that the sum of $6,250 was his “initial valuation of the car.” The salvage report reflects that the vehicle had an “average retail” of $6,025 from which was deducted a $250 mileage factor and added a $475 accessories factor, and that an apparent $60 deduction for car condition was not taken due to negotiation. Nowhere in the affidavit or the report is an express statement made that the resulting “initial valuation” was, in fact, the “market value” of the car before the collision. Any inferences from the evidence must be drawn in favor of appellee who is opposing the motion for summary judgment. Moore, supra. The reasonable inference to be drawn from this evidence is that the figure of $6,250 was not a final and reasonable “fair market value” calculation, but was only an “initial valuation” of the car based in part on insurance industry mileage factors and unexplained accessory allowances. Accordingly, we find a jury issue exists as to the fair market value of the car before the collision. Secondly, the front page of the salvage report lists the “estimated salvage value” of the vehicle as either “$350” or “$250,” but in the “Diary Activity” section of the report it appears that salvage value was determined merely by informing appellee that the insurance company normally receives 25 percent on salvage. Thus, we find that the salvage value purportedly relied upon as the “fair market value” of the totaled vehicle after collision was based on the taking of an arbitrary 25 percent of the $6,250 “initial valuation” figure. Not only is this alleged salvage valuation questionable because the “initial valuation” figure itself is questionable, but also an unexplained contradiction exists (see Gentile v. Miller &c., Inc., 257 Ga. 583 (361 SE2d 383)), between the $250 or $350 salvage figure on the front page of the report and the $1,562.50 salvage report figure shown on the second page of the report and claimed as the salvage value in the adjuster’s affidavit. It was the $1,562.50 salvage value calculation that was treated by the insurance company as the salvage value of the vehicle after loss and deducted from the “initial valuation” figure of $6,250 resulting in the tender of the $4,686.50 check jointly to appellee and lessor. Appellants have never maintained that appellee executed a release adequate to preclude the maintenance of this suit. Rather, they consistently contended appellee had received full satisfaction. The evidence in the record before us is uncontroverted that appellee did not execute a release or any other binding document not to sue appellants merely by accepting and cashing in 1989 the check tendered by the insurance company, and that he did not accept the check as “full compensation” of his damages. “ ‘[I]f there is no release, and the payment is not made and accepted as “full compensation” it is only a pro tanto payment, for if the cause of action has not been surrendered, only full compensation will extinguish it.” Gilmore v. Fulton-DeKalb Hosp. Auth., 132 Ga. App. 879, 880 (209 SE2d 676). Appellants have failed to meet their burden under Lau’s Corp., supra, and a genuine issue of material fact exists as to the issues of “fair market value” (both before and after the collision) and “full compensation.” The correct ruling of a trial court will not be reversed regardless of the reason therefor. National Consultants v. Burt, 186 Ga. App. 27, 33 (2) (366 SE2d 344).

Decided October 29, 1992.

Judgment affirmed in part and reversed in part.

Beasley and Andrews, JJ., concur.

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Sydney P. Wright, Long, Weinberg, Ansley & Wheeler, Ronald R. Coleman, Jr., for appellants.

Butler, Wooten, Overby & Cheeley, Robert D. Cheeley, Patrick A. Dawson, Neely & Player, Ronald D. Reemsnyder, Andrew C. Ausband, Cashin & Morton, John C. Porter, Jr., Dennis, Corry, Porter & Thornton, R. Clay Porter, Robert G. Ballard, for appellee.


text:
    A92A1462, A92A1555.
    GREEN v. THE STATE (two cases).
    (424 SE2d 646)
   Birdsong, Presiding Judge.

Mark Allen Green a/k/a Mark Alan Green a/k/a Mark Allan Green a/k/a Mark Allen a/k/a Mark A. Green a/k/a Mark Allen Booking appeals the order of final disposition of the trial court as to his conviction of aggravated assault and sentence. Appellant was convicted of committing aggravated assault by shooting the victim with a deadly weapon, to-wit: a pistol. He enumerates three errors. Held:

1. By order of this court of May 20, 1992, Case Nos. A92A1462 and A92A1555 were duly consolidated under the caption of Case No. A92A1462.

2. Appellant asserts the trial court erred in admitting in evidence a bullet retrieved from the victim during surgery. Appellant contends the bullet was inadmissible because an adequate chain of custody had not been established.

The victim testified without objection that, on October 25, 1991, he was shot by appellant twice, and that one bullet lodged near his buttocks. After being dismissed from Grady Hospital, the victim subsequently had the bullet removed at West Paces Ferry Hospital. A physician gave him the bullet extracted from his body. The victim, who is not familiar with guns, positively identified the bullet in the container, both objects being marked as State’s Exhibit No. 1, as the bullet “that struck [him] and was lodged in [his] right buttocks.” He also identified the bullet as the one that was taken from his body at the hospital. The victim knew the bullet came out of his hip, as it was the one given him by the physician at the hospital. Although the victim did not retain custody of the bullet from the time it was given to him until the time of trial, as he gave the bullet to a detective about a week after he received it, during the week he had the bullet it was in his custody at all times. A detective testified, without objection, that the victim had given him State’s Exhibit No. 1 (the bullet and container). The detective also was the property officer and he placed the bullet and container in the local police property room. The property room is secure. The bullet remained in the property room until the day of trial. The bullet does not appear to have been tampered with in any manner since given him by the victim. The bullet appears to be a .38 caliber bullet. The gun used in the shooting was never found. State’s Exhibit No. 1, in addition to the bullet at issue, included a plastic container with a label attached. The State, outside the presence of the jury, without contradiction or objection from appellant stated: “The container . . . appears to be a hospital type — actually, a urine specimen jar, as far as I can tell, with a label still on it indicating Brown Colnith A. as the name and the word bullet on there and the date of the 11-9-90.” Our independent examination of the photograph of State’s Exhibit No. 1 attached to this record, and of the actual exhibit itself, reveals no inaccuracy by the State in its characterization of the exhibit.

Appellant subsequently objected to the admissibility of the bullet on the sole ground that an inadequate chain of custody had been established for its admissibility.

(a) We find that, considering the manner in which the bullet was packaged and the circumstances surrounding the victim’s familiarity with State’s Exhibit No. 1, the exhibit was a distinct physical object which could be identified by the victim, his lack of familiarity with guns notwithstanding, upon mere observation. Accordingly, chain of custody did not have to be established for its admissibility. Wood v. State, 159 Ga. App. 221, 222 (2) (283 SE2d 79).

(b) Moreover, had a chain of custody been required, the State made an adequate' showing thereof to provide a sufficient foundation for the admission in evidence of the bullet and its container. Considering the testimony of the victim and the detective in its totality, coupled with our examination of the container in which the bullet was enclosed when given to the detective by the victim, we are satisfied that the State has shown with reasonable certainty that the bullet is the same as that surgically removed from defendant’s body and that there has been no tampering or substitution thereof. See generally Williams v. State, 199 Ga. App. 122 (404 SE2d 296). Nor was it necessary to establish chain of custody that all persons who handled the bullet testify, particularly when, as in this case, appellant raised no timely and specific objection at trial that the evidence had been tampered with or substituted prior to its admission in evidence. Id. at 123 (2).

(c) Furthermore, the gun used in the shooting was never found; thus, the bullet was not introduced as a prerequisite to the admission of expert ballistic testimony attempting to link the bullet to the gun, or to link both the bullet and gun to appellant. Compare Gribble v. State, 248 Ga. 567, 569 (2) (284 SE2d 277). The victim testified without objection that the bullet was the one taken from his body. The detective testified without objection that the bullet appeared to be of .38 caliber. “All evidence is admitted as a matter of course unless a valid ground of objection is interposed.” (Citations and punctuation omitted.) Smarr v. State, 199 Ga. App. 572, 573 (2) (405 SE2d 561). Introduction of the bullet would merely provide cumulative evidence as to those matters testified to by the State’s witnesses. Thus, assuming arguendo, a chain of custody was required for the bullet’s admission and that an adequate chain of custody had not been established, nevertheless as the bullet merely would have been cumulative of other testimony received in evidence without objection, its admission would not constitute reversible error. “[E]vidence is harmless where admissible evidence of the same fact is before the jury.” Young v. State, 191 Ga. App. 651, 653 (2) (382 SE2d 642).

3. Appellant asserts the evidence was insufficient to prove appellant’s guilt beyond a reasonable doubt. We disagree.

The victim testified he was confronted by appellant, who was accompanied by a friend, who accused him of stealing a VCR. The confrontation ended and the victim went to visit one of his friends. On returning to his apartment, the victim was again confronted by appellant about the VCR. The victim walked away and turned around. At that time, appellant turned, and the victim testified, “I knew he just shot me twice.” Appellant was 10-15 feet away when he shot the victim. The victim was in shock and at that moment did not see the gun; he just felt the bullets enter his body. No one would help him get up. When he got up under his own power, appellant was coming toward him with the gun still in his hand. The victim tried to get the gun, but was too weak; as he was falling, the victim let go of the gun, and appellant “just ran away.” One bullet went through the victim’s left leg and one lodged in his buttocks.

In addition to identifying appellant as his assailant, the victim also testified as to appellant’s flight from the scene following the shooting. Although a jury may no longer be and was not given a “flight” charge, “[t]he fact that a suspect flees the scene of a crime points to the question of guilt in a circumstantial manner.” Renner v. State, 260 Ga. 515, 517 (3b) (397 SE2d 683). Flight is circumstantial evidence of consciousness of guilt; the weight to be given such evidence is for the jury to decide.

Although not adequately enumerated as error (Partain v. State, 139 Ga. App. 325 (6) (228 SE2d 292)), appellant argues that because the jury foreman reported, after announcement of the verdict and polling of the jury, that two jurors did not like the evidence presented by the prosecution, and that they believed there was not enough evidence, this established the jury’s confusion over the quality of the State’s evidence. Suffice it to say, the jury previously had been polled and all jurors affirmatively responded that the announced verdict of guilty was their verdict both in the jury room and at the time of polling. Additionally, after the remarks by the foreman, the trial judge conducted a specific inquiry into the matter. He determined on the record that no juror desired to change the verdict and that all jurors stood by the verdict as announced. The general remarks of the foreman as to his perception of the deliberation room concerns of two unidentified jurors, regarding evidence sufficiency, would not, standing alone, render the verdict invalid. Moreover, as defense counsel did not object or move for further deliberation after the jurors’ responses, he waived any objection whether their verdict was unanimous. Hanson v. State, 258 Ga. 564, 568 (4a) (372 SE2d 436).

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of aggravated assault of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

4. Appellant asserts that his defense counsel at trial was inadequate. Specifically, he contends this inadequacy occurred during the sentencing phase of trial when counsel failed to object to matters offered in aggravation by the State, as to which no timely notice had been provided to the defense. See generally OCGA § 17-10-2 (a) and (d).

Following sentencing, appellant requested the appointment of an appellate counsel. His defense counsel at trial was appointed as appellate counsel. The trial court’s order of final disposition was filed November 5, 1991. Appellant, on some date not identified in the record, hired other counsel to represent him on appeal. This counsel, his current appellate counsel, filed a timely motion for new trial on November 19, 1991. This motion averred three grounds for new trial: (1) defendant should be acquitted and discharged due to the State’s failure to prove guilt beyond a reasonable doubt; (2) although the State proved defendant’s guilt beyond a reasonable doubt, the evidence was sufficiently close to warrant the trial judge to exercise his discretion to grant defendant a retrial; and (3) the trial court committed an error of law warranting a new trial. The issue of inadequacy of original defense counsel was not reasonably raised in this motion. On December 4, 1991, appellant’s original defense counsel filed a timely notice of appeal. On February 28, 1992, the order of the trial court denying the motion for new trial was filed. On March 20, 1992, appellant’s current appellate counsel also filed a notice of appeal from the judgment of conviction entered on November 5, 1991, and by implication from the order, filed on February 28, 1992, denying the motion for new trial of November 19, 1991. The record before us reveals that at no time did appellate counsel file an amended motion for new trial or otherwise raise the issue of adequacy of counsel before the trial court or timely request a hearing on the issue. Rather, appellate counsel has attempted to raise the issue of inadequacy of original counsel, for deficiencies allegedly occurring during the sentencing phase of trial, for the first time on appeal.

Decided October 29, 1992.

Franklin, Moran & Boyle, Curtis L. Hubbard, Jr., for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Wm. Morgan Akins, Leonora Grant, Assistant District Attorneys, for appellee.

As appellant had the opportunity to raise the issue of inadequacy of his original defense counsel when his retained appellate counsel filed the motion for new trial, but failed to do so, he has waived the issue on appeal. Dawson v. State, 258 Ga. 380 (2) (369 SE2d 897); Washington v. State, 193 Ga. App. 823 (389 SE2d 407). Appellant also failed to file a request for a hearing as to the issue of inadequacy. Dawson, supra.

Murray v. State, 261 Ga. 824 (3) (413 SE2d 453) is distinguishable. In the case at bar, although the original defense counsel apparently had not been relieved of his duties toward appellant, newly retained counsel for appellant assumed the duty of representing appellant before the trial court in preparation for appeal, as evidenced by his timely filing of the motion for new trial. Thus, at this point, appellant had adequate opportunity to raise the issue of inadequacy of his original counsel and to request a hearing, which he failed to do. Accordingly, we find Dawson, supra, controlling and the issue of inadequacy not preserved on appeal.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A1492.
    ROGERS et al. v. CORONET INSURANCE COMPANY et al.
    (424 SE2d 338)
   Birdsong, Presiding Judge.

Appellants appeal the order of the trial court granting appellee/ defendant Dr. Manard, D.C. the right to open his default, granting his motion to dismiss and motion for summary judgment, and finding his motion to compel discovery moot. Pursuant to OCGA § 9-11-54 (b), the order contained the determination and direction for final judgment.

In December 1989, appellants were in an automobile collision; appellant Rogers was driving, and appellant Vaughn and T. Niles (a minor who is represented b/n/f and guardian, S. Niles) were passengers. Appellants demanded no-fault benefits from Rogers’ insurance policy, underwritten by appellees Coronet Insurance Company and Insurance Services Underwriters, Inc. Appellee Manard is a licensed chiropractor employed by Howell Industrial Clinic, which operates the Center for Independent Medical Examination. As such, Dr. Manard performed independent chiropractic examinations upon appellants, pursuant to a request by the insurance company of appellant Trenton Rogers against whom appellants had filed personal injury protection (PIP) claims. Dr. Manard performed separate, independent chiropractic examinations on each appellant without consulting their x-rays or other medical records in the possession of appellants’ chiropractor. Dr. Manard subsequently submitted reports to the insurance company concluding inter alia that while appellants were in pain they would not benefit from further treatment. The insurance company allegedly stopped PIP claim payments to appellants after receiving this report.

Appellants brought suit against Dr. Manard, the insurance company, and the insurance underwriters; attached to the original complaint is the affidavit of appellants’ chiropractor. On the summons, appellants’ counsel characterized the suit as being in “contract” and “medical malpractice.” Appellee Manard filed his answer 35 days after service of summons and complaint, averring therein the affirmative defense of failure to state a claim upon which relief can be granted, and contemporaneously filed a motion to dismiss the original complaint. At this time appellee Manard, being unaware of the default, did not pay costs. Subsequently, appellants filed an amended complaint with an affidavit of their chiropractor attached; the amended complaint has the effect of making more definite the averments pertaining to the original claim and includes a new count of tortious interference with contract. Appellee Manard responded by filing a motion for summary judgment. The record reflects appellee was not aware of the default until approximately two months thereafter when appellants moved to strike his answer following the filing of the summary judgment motion. Appellee Manard moved to open default the day after learning of the motion to strike. Held:

1. Factual assertions in briefs not supported by evidence of record cannot be considered on appellate review. Behar v. Aero Med Intl., 185 Ga. App. 845, 847 (366 SE2d 223). Further, a brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record. Cotton States &c. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 SE2d 33). Any argument or assertion, founded upon a particular portion of the evidence, must be supported by a reference to the page or pages in the transcript where the evidence may be found. Court of Appeals Rule 15 (c) (3) (ii). It is not the function of this court to cull the record on behalf of a party in search of error. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (8) (389 SE2d 251), citing Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (386 SE2d 709). We will apply these well-settled rules of appellate procedure to this appeal.

2. On appeal the test to determine whether the trial court erred in opening default is not whether this court would have granted or denied the motion had it been ruling thereon at the trial level. OCGA § 9-11-55 (b) allows prejudgment default to be opened on one of three grounds if four conditions are met. See generally Powell v. Eskins, 193 Ga. App. 144, 145 (387 SE2d 389). “ ‘(T)he question of whether to open a default on one of the three grounds . . . rests within the discretion of the trial judge.’ ” Id.

“ ‘ “The rule permitting opening of default is remedial in nature and should be liberally applied (cit.), for default judgment is a drastic sanction that should be invoked only in extreme situations. (Cits.) Whenever possible cases should be decided on their merits for default judgment is not favored in law. . . . Generally, a default should be set aside where the defendant acts with reasonable promptness and alleges a meritorious defense.” ’ ” (Emphasis supplied.) Evans v. Willis, 203 Ga. App. 699, 700 (418 SE2d 73). In determining whether a situation is extreme, among the factors which may be considered, but which will not standing alone authorize the opening of default pursuant to OCGA § 9-11-55 (b), are: whether and how the opposing party will be prejudiced by opening the default (Powell, supra); whether the opposing party elected not to raise the default issue until after the time under OCGA § 9-11-55 (a) had expired for the defaulting party to open default as a matter of right (Evans, supra); and whether the defaulting party acted promptly to open the default upon learning no answer had been either filed or timely filed (Cole v. Lucas, 201 Ga. App. 423, 424 (411 SE2d 284)). Further, any additional delay occasioned by a failure to file promptly for opening default upon its discovery can be considered in determining whether defendants’ neglect was excusable. Id. at 424.

Thus it appears, “ ‘[t]he facts in each case are different and (the court) must look at each in the light of the facts peculiar to that particular case.’ ” Id. at 424. In this instance, evidence of record establishes counsel for appellees was unaware at the time he filed his answer that it had been filed 35 days after service. Appellee Manard had erroneously informed his counsel, apparently relying on an unexplained pencil notation appearing on his copy of the summons that process had been served on November 10, 1991, when in fact he had been served on November 5, 1991. Appellants did not raise the issue of default until February 1992, and appellees’ counsel filed a motion to open default and paid costs the day after he became aware of the default. Further, notwithstanding trial court inquiry, appellants failed to establish any specific claim of prejudice that would inure from the opening of default. Compare Whitley v. Bank South, 185 Ga. App. 896 (2) (366 SE2d 182).

The motion asserted “excusable neglect” and satisfied the four conditions of OCGA § 9-11-55 (b). (In this regard, we find unpersuasive appellants’ argument that appellees could not be ready to proceed with trial merely because a motion to dismiss and motion for summary judgment were pending, which the record reveals were scheduled for hearing, with appellants’ acquiescence, immediately following resolution of the * motion to open default.) The trial court found the existence of “excusable neglect” and granted the motion to open default. Under the existing circumstances, the record will not support a finding of abuse of discretion by the trial court. The enumeration is without merit.

3. Appellants assert the triál court erred in granting appellee Manard’s motion to dismiss. We disagree.

The original and amended complaints on their face both failed to state a claim on which relief can be granted based upon professional malpractice. “[Tjhere can be no liability for malpractice [on the part of a chiropractor] in the absence of [a doctor]-patient relationship. ‘(T)here are three essential elements imposing liability upon which recovery is bottomed: (1) The duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained.’ [Cits.] Tn such cases, called “classic medical malpractice actions” . . . , doctor-patient privity is essential because it is this “relation . . . which is a result of a consensual transaction” that establishes the legal duty to conform to a standard of conduct.’ ” Peace v. Weisman, 186 Ga. App. 697, 698 (1) (368 SE2d 319). Moreover, the allegations in the complaints that appellee Manard “kept telling [appellants] that they were not in pain and no further chiropractic treatment was necessary to treat their injuries” would not per se give rise to a doctor-patient relationship nor otherwise establish special circumstances under which appellants could reasonably rely on such declarations as being uttered in the course of professional treatment. “There is nothing to suggest that [the transmittal of such admission seeking declarations] was inconsistent with the limited relationship between appellants and [appellee Manard].” Clough v. Lively, 193 Ga. App. 286, 288 (387 SE2d 573). Further, the complaint contains no averments that appellants relied upon these declarations as constituting a professional diagnosis to their physical detriment. “ ‘ “No matter how innocent the plaintiff may be, he is not entitled to recover unless the defendant did something that (he) should not have done, or failed to do something that (he) should have done pursuant to the duty owed the plaintiff.” (Cit.)’ [Cit.]” Cechman v. Travis, 202 Ga. App. 255, 257 (2) (414 SE2d 282). “In the absence of a physician-patient relationship, the appellee’s only duty to [appellants] was to conduct the examination in such a manner as not to injure [them]” during the course thereof. Peace, supra at 699 (2). The averments contained in the original complaint and amended complaint establishes that no doctor-patient relationship existed between appellants and appellee Manard, and no averment is made that appellants were physically injured during the course of the examination. Accordingly, the original complaint failed to state any claim whatsoever upon which relief could be granted; and the amended complaint, which averred only a professional malpractice claim and a tortious interference claim, failed to state any professional malpractice claim upon which relief could be granted.

Appellants’ reliance on Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (special relationship between private mental health hospital and a patient) is misplaced, as that case is factually distinguishable and not controlling. Although under certain limited circumstances there exists a tort based on negligent preparation or furnishing of false information (see generally Badische Corp. v. Caylor, 257 Ga. 131 (356 SE2d 198)), the circumstances averred in the complaints give notice of and support for no such claim. The liability arising from such a tort is limited to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly, and “professional liability for negligence . . . extends to those persons, or the limited class of persons who the professional is actually aware will rely upon the information he prepared.” Id. at 133. As the averments in the complaints reveal the report in question was prepared at the behest of and furnished to appellee insurance company, the complaints fail to state any claim of simple negligence on behalf of appellants sounding in a Badische-type tort.

We further find the original complaint meets Code pleading notice requirements as to medical malpractice claims (see generally Bazemore v. Burnet, 117 Ga. App. 849, 852 (161 SE2d 924)) and attempts to aver only a claim of professional malpractice; and, that the amended complaint gives notice of and attempts to aver only claims of professional malpractice and tortious interference of contract. That is, the complaints on their face fail either to give notice of or to aver a claim of simple negligence against appellee Manard as asserted by appellant. Recognizing that “ ‘[professional] malpractice exists only where the act or omission by (a) professional requires the exercise of expert [professional] judgment’ ” (Lamb v. Candler Gen. Hosp., 262 Ga. 70, 71 (413 SE2d 720)), we find that the various acts and omissions averred in the original and amended complaint attempting to establish negligence on the part of appellee Manard each involves a situation requiring the exercise of chiropractic judgment. Particularly, the determination of the nature, scope, and length of a chiropractic examination, and of the information required before an adequate professional evaluation and report of a patient’s condition could be rendered are matters requiring the exercise of such professional judgment. Thus, the averment of failure to render a complete and thorough examination and report is the attempted averment of a professional malpractice claim, rather than a claim of simple negligence. Compare Lamb, supra.

Additionally, the trial court correctly concluded that as to the professional malpractice claims, a valid affidavit was required to be filed with the complaint in accordance with the requirements of OCGA § 9-11-9.1 (a). See Kneip v. Southern Engineering Co., 260 Ga. 409, 410 (3) (395 SE2d 809). The affidavits submitted with the original complaint were insufficient to meet the requirements of OCGA § 9-11-9.1 (a). Examination of the affidavits reveal that neither individually nor collectively do they set forth specifically at least one negligent act or omission claimed to exist on the part of appellee Manard. OCGA § 9-11-9.1 (a). At most, the affidavits establish that appellee Manard did not contact affiant for or request from affiant any x-rays, patient chiropractic data, treatment plan or chiropractic findings before “deciding] the named [appellants] reached maximum medical treatment.” The affidavits fail to set forth specifically that appellee Manard had failed to obtain such information before rendering his professional evaluation of appellants, or that he was in fact negligent merely by failing to contact affiant or in failing to request from affiant the information at issue. Moreover, under the circumstances of this case, the subsequent filing of an amended complaint and attaching thereto an additional affidavit would not cure this defect. See Cheeley v. Henderson, 261 Ga. 498, n. 1 (405 SE2d 865) (and accompanying text); Davis and Shulman’s, Ga. Prac. & Proc., Complaints, § 7-7.1, p. 176.

4. The trial court did not err in granting appellee Manard’s motion for summary judgment as to the tortious interference with contractual relationships claim.

At summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to any essential element of the case. If there is no evidence sufficient to create a genuine issue as to any essential element of the plaintiff’s claim, that is, the record reveals there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474). One of the essential elements of a tortious interference claim is that the defendant acted “ ‘purposely and with malice with the intent to injure.’ ” Contractors’ Bldg. Supply v. Gwinnett Sash &c., 199 Ga. App. 38, 39 (2) (403 SE2d 844). Applying the standard of Lau’s Corp., supra, we find that the record reveals there is no genuine evidence sufficient to create a jury issue as to this essential element. Accordingly, the trial court did not err in granting summary judgment to appellee Manard as to the tortious interference claim.

Nor would the trial court have erred in granting summary judgment to appellee Manard as to the professional malpractice claim had that claim survived the motion to dismiss, as the affidavit of appellee Manard had it been considered in regard to this claim would have effectively negated the requisite doctor-client relationship giving rise to the duty at issue, and thus summary judgment would have been warranted under the precedent of Lau’s Corp., supra. Compare Bushey v. Atlanta Emergency Group, 179 Ga. App. 827, 829 (348 SE2d 98).

5. Appellants assert the trial court erred in finding their motion to compel discovery and for sanctions was moot. Appellants assert they were harmed by this ruling as the requested discovery would show the potential “bias” of appellee Manard toward appellee insurance company, and would be relevant as to the doctor’s motive for his questioned conduct. See generally Tuck v. Marriott Corp., 187 Ga. App. 567, 569 (2) (370 SE2d 795) (grant of summary judgment while motion to compel is pending is generally not condoned but not reversible where disallowed discovery would add nothing of substance to the party’s claim). Pretermitting this issue is whether appellants contributed to or otherwise induced this error by their own trial procedure. We find that they have. The record reveals that appellants filed no timely motion for continuance, nor did they orally request continuance at the motion hearing. Additionally, at the hearing on the motions to dismiss and for summary judgment, appellees’ counsel stated on the record that appellants’ counsel “hasn’t asked for a continuance on this motion. He consented on the day we were here before to have this heard today before Your Honor in open court.” (Emphasis supplied.) Appellees did not contest the accuracy of this factual recitation, and thus acquiesced as to its accuracy by their silence. See Horan v. Pirkle, 197 Ga. App. 151 (1) (397 SE2d 734). Appellants cannot complain of a judgment, order, or ruling that their own procedure or conduct aided in causing. West v. Nodvin, 196 Ga. App. 825, 826 (3e) (397 SE2d 567).

Decided October 29, 1992.

Gordon G. Greenhut, for appellants.

Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, for appellees.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A1604.
    FEELY v. FIRST AMERICAN BANK OF GEORGIA, N.A.
    (424 SE2d 345)
   Birdsong, Presiding Judge.

Suit was brought by appellee bank to obtain money claimed due and owing on certain notes and a guaranty agreement. Appellant James D. Feely filed a counterclaim averring fraud. Appellant appeals from the order of the state court granting summary judgment on behalf of appellee for $28,216.98, and denying appellant’s motion for summary judgment.

Appellant Feely and Norman L. Heckert were the sole shareholders, officers, and directors of Aftersale Profit Concepts Corporation (APC). To establish a credit rating and to obtain a revolving line of credit for APC, Feely and Heckert in their capacity as corporate officers executed a six-month, unsecured, $50,000 promissory note with appellee bank on March 2, 1988. About that same date, Feely and Heckert in their individual capacities both executed guaranty agreements of this loan and of any extensions or renewals thereof. On September 1, 1988, Feely and Heckert in their respective corporate capacities executed a six-month, unsecured, $50,000 renewal note of the original revolving line of credit. On March 1, 1989, Feely and Heckert in their respective corporate capacities executed another six-month, unsecured, $50,000 renewal note of the revolving line of credit. Apparently by this time, the entire line of credit had been drawn down by APC. On September 1, 1989, Feely and Heckert executed yet another unsecured, $50,000 note renewing the revolving line of credit. Although this note reflects on its face that it was executed by Feely and Heckert in both their corporate and individual capacities, there is some testimony indicating the men may have erroneously signed the note in the wrong place, and that this was considered by the parties to be a corporate obligation. When this note was executed, the maturity date allegedly was left blank, and a bank employee subsequently filled in the maturity date as being 90 days hence. Appellant claims that it was intended that this note was to mature six months from date of execution as did all prior notes, and it is the conduct of the bank in fixing a shorter maturity date that in essence forms the basis for appellant’s counterclaim for fraud. The branch manager of the bank disputes this contention and testified that the parties were aware of the terms of the note. The note of September 1, 1989 reflects on its face that, unlike the previous revolving line of credit notes, it was executed in the form of a term note.

After learning of the asserted maturity date of the September 1 note, Feely and Heckert negotiated with the bank to convert the loan obtained by the APC notes to individual loans secured by certain real estate, or the legal interest therein, owned respectively by Feely and Heckert. According to this negotiation, Feely was to execute a note for 60 percent of the obligation or $30,000, and Heckert was to execute a note for 40 percent of the obligation or $20,000. Additionally, each man was to cross-guaranty the other’s obligation and to execute a guaranty agreement to that effect. As an alleged interim measure, a $50,000 note was to be jointly executed by them.

Thus, on December 28, 1989, Feely and Heckert executed yet another note in the form of a term note for an original loan. This note was not captioned as a renewal note. It was signed jointly by Feely and Heckert in their individual capacities, and bore on its face a maturity date of “2/1/90” (February 1, 1990).

Thereafter, Feely and Heckert were scheduled to go to the bank and execute the individual $30,000 and $20,000 notes, and their cross-guaranty agreements. On February 19, 1990, Feely appeared and executed his $30,000 note and guaranty agreement; Heckert did not appear and has never executed an individual note or cross-guaranty. Feely has remained current in the payments of his $30,000 note.

The note of September 1, 1989, reflects on its face that it was paid in full on December 29, 1989, the day after the execution of the note of December 28. The branch manager testified in his deposition that the note of September 1, 1989, “was paid in full by the proceeds of the joint note” of December 28, 1989. And Feely admits in his deposition that the note of September 1 has been “paid off.”

The bank initiated suit against both Feely and Heckert for collection of the remaining outstanding obligation of $20,000, and obtained default judgment against Heckert. The bank asserts it is entitled to summary judgment against Feely based on either the unsatisfied $20,000 obligation of the joint note of December 28 or on the unsatisfied guaranty agreement executed by Feely on February 19. Held:

1. Appellant asserts the trial court erred in denying his counterclaim for fraud and by denying his motion for summary judgment and summarily dismissing said counterclaim. The counterclaim has two counts. The first count in essence avers a fraudulent misrepresentation by appellee that the note of December 28, 1989, was for a six-month term; the second count avers a fraudulent misrepresentation by appellee that said note and subsequent personal guarantee would lapse after defendants signed the new security and loan agreements. Questions of bad faith and fraud are ordinarily for the jury. Guillebeau v. Jenkins, 182 Ga. App. 225, 231 (2) (355 SE2d 453). However, where there exists no evidence from which an inference of fraud may be reasonably drawn, the trial court properly may award summary judgment to the defendant-movant. Id. at 231-232; accord Leachman v. Cobb Dev. Co., 229 Ga. 207, 209 (190 SE2d 537).

As to the first count, the counterclaim on its face alleges a fraud as to the note captioned as “note 1” in plaintiff’s complaint, that is, the note executed on December 28, 1989. Appellant clarified in his deposition that his claim of fraud, as to the subsequent addition of a three-month maturity date therein, was in regard to the note executed on September 1, 1989. Nevertheless, he failed, prior to the trial court’s ruling on the motions for summary judgment, to move to amend the faulty averment in Count 1 of the counterclaim to conform to his deposition testimony. See, e.g., OCGA § 9-11-13 (f). The provisions of OCGA § 9-11-15 will not operate to amend automatically Count 1 of the counterclaim to conform to evidence introduced in a deposition taken during the discovery process and prior to trial. Cf. Cross v. Cross, 230 Ga. 91 (195 SE2d 439). Accordingly, the count of fraud averred in Count 1 of the counterclaim did not have to be submitted to the jury.

As to the second count of the counterclaim there exists but a shadowy semblance of an issue of fraud. Summary judgment law does not require the defending party to show that no issue of fact remains, but rather that no genuine issue of material fact remains; and while there may exist some shadowy semblance of an issue, the case may nevertheless be decided as a matter of law where, as here, the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion. See generally Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 424 (373 SE2d 515). Moreover, the alleged misrepresentation regarding the “vacation” of the note of December 28, 1989, concerns a question of law. “ ‘Misrepresentations as to a question of law cannot constitute remediable fraud. . . . This is especially true where there is no confidential relationship between the parties. (Cits.)’ ” Stephens v. C & S Nat. Bank, 170 Ga. App. 793, 794 (2) (318 SE2d 216).

2. Appellant argues that the trial court erred in granting appellee’s motion for summary judgment because appellant raised the defense of novation, and novation is a jury question. In essence, appellant claims that his execution of the $30,000 note, the terms of which he has not breached, constituted a novation of the $50,000 loan obligation.

(a) The $50,000 revolving line of credit obligation, originating on March 2, 1988, and subsequently renewed by execution of certain notes, was paid in full and satisfied on December 29, 1989, with the consent of the parties. Therefore, any issue regarding the continued validity of the original note and subsequent renewals of the original line of credit obligation has been rendered moot. In fact, appellant admits by way of deposition testimony that this note was “paid off,” as he desired for tax purposes “to convert this to a personal note.” As an integral part of this procedure, a new personal note of December 28, 1989, was executed by Feely and Heckert, which was signed in their individual capacities.

(b) Appellant’s assertion that the note of December 28 was an interim note which remained in effect only until vacated, when appellant subsequently executed his $30,000 note of February 19, 1990, and cross-guaranty agreement, is not compatible with the clear intent of the parties as reflected upon the face of the note itself. See OCGA §§ 11-3-109; 13-2-3; cf. Health Svc. Centers v. Boddy, 257 Ga. 378, 380 (359 SE2d 659). Further, appellant stated in his deposition that he did sign the $50,000 note, executed on December 28, 1989, and that “this was an interim loan subject to the loan being split and mutually secured by deeds of trust on [his and Heckert’s] property.” (Emphasis supplied.) The clear and unequivocal meaning of this testimony is that the parties intended the loan to be valid, but subject to being subsequently split and mutually secured as agreed. Any other testimony of record by Feely, including testimonial-type evidence presented by him in a personal affidavit form that is inconsistent with this deposition testimony and without any reasonable explanation therefor appearing in the record, is subject to the contradictory testimony rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) and progeny. Compare Hudgens v. Broomberg, 262 Ga. 271 (416 SE2d 287) (1992).

“A novation or accord and satisfaction is in itself a contract and must have all the elements of a de novo contract. Therefore, there must be a meeting of the minds. ... In every novation there are four essential requisites . . . [including] (2) the agreement of all the parties to the new contract. ... If these essentials, or any one of them, are wanting, there can be no novation.” (Citations and punctuation omitted.) Griffiths v. Phenix Supply Co., 192 Ga. App. 651-652 (385 SE2d 789). The question of the parties’ mutual intention for an accord and satisfaction or novation is ordinarily a question of fact reserved for jury determination. Mayer v. Turner, 142 Ga. App. 63, 64 (234 SE2d 853). However, where, as in this case, the intent of the parties is shown by clear, plain, and palpable evidence so that the jury can draw but one conclusion, the issue of intent can be decided as a matter of law and the summary judgment can be granted. Compare Sutton v. Gen. Elec. Credit Corp., 154 Ga. App. 522 (268 SE2d 789). It is clear from the record that the so-called interim note was valid and binding according to the terms on its face, and was not to be vacated before expiration of term of maturity absent sooner payment of all principal and interest due, or subject to the loan subsequently being appropriately split and mutually secured by Feely and Heckert. Thus, the record establishes unequivocally that the parties did not intend a novation to occur merely by Feely’s unilateral execution of the subsequent $30,000 note and cross-guaranty agreement. We find as a matter of law that novation did not occur. See Sutton, supra.

Moreover, “ ‘[w]here, after the execution of a promissory note, a renewal or new note is executed for the same debt, it is the general rule that the second instrument does not of itself operate as a payment, or accord and satisfaction, or novation extinguishing the first note, unless there is an agreement between the parties to that effect.’ ” Wages v. Nat. Bank &c., 169 Ga. App. 514 (313 SE2d 771); accord Remler v. Coastal Bank, 179 Ga. App. 25, 27 (345 SE2d 79). Nor can a partial rescission of a contract occur without mutual assent of the parties. See Farr v. McCook, 95 Ga. App. 749, 751 (1) (98 SE2d 584). The existence of a novation or similar agreement in connection with the execution of the second note may be shown by parol evidence. Farmers &c. Bank v. Rogers, 55 Ga. App. 38 (1) (189 SE 274). However, appellant testified by way of deposition regarding the nature of the agreement as to the alleged subsequent payment, accord and satisfaction or novation of the December 28, 1989 note. That agreement in effect provided that the valid obligation would continue during the life of the note, unless either principal and interest were earlier paid or there was a splitting between and mutual securing of the note by appellant and Heckert. To the extent there exists testimony by appellant from which an inference to the contrary may be drawn, no reasonable explanation has been provided for the inconsistency within the meaning of Prophecy Corp., supra, and Hudgens, supra. Assuming arguendo, the bank had split the primary note obligation between appellant and Heckert, uncontroverted evidence of record clearly and conclusively establishes that there was never a mutual securing of the December 28 note obligation as intended by the parties. Therefore, we find as a matter of law that there has been no novation.

We note that the bank did proceed to accept timely payments of principal and interest on the subsequent $30,000 note of appellant and also elected to sue only on $20,000 of the $50,000 note of December 28, 1989, even though Heckert reneged in executing his note and guaranty, and that appellant appears to have acted in reliance on said bank conduct. However, no waiver of right to claim for the remaining $20,000 due and owing on the December 28, 1989 note has occurred, there being no similar conduct by the bank regarding that amount on which appellant could reasonably rely to his prejudice. See Mauldin v. Weinstock, 201 Ga. App. 514, 520 (4) (411 SE2d 370).

3. Appellant asserts that the trial court erred in granting appellee’s motion for summary judgment because appellant received no consideration for the note of December 28, 1989. We disagree. The record is uncontroverted that appellant and Heckert accepted the $50,000 from the December 28, 1989 note to pay off the obligations on the $50,000 line of credit arising from the various line of credit notes previously discussed and term note of September 1, 1989. Appellant also gained additional time to attempt to split the loan obligation into two, longer-term obligations between him and Heckert, as above discussed. In addition, by executing the joint individual note of December 28, 1989, both appellant and Heckert obtained the destruction of any corporate legal obligation flowing from the note of September 1, 1989, and its progeny; and, as a consequence they also obtained per force the forbearance of the bank as to the prosecution of any claim based on the $50,000 line of credit corporate obligation. These benefits provided adequate consideration for the execution of the joint $50,000 obligation of the December 28, 1989 note. See generally OCGA §§ 13-3-41; 13-3-42.

Assuming arguendo only Heckert and not appellant had received the monetary benefit of the December 28, 1989 note, “where two parties execute a note as comakers, one of such comakers is not allowed to plead failure of consideration because he did not receive the money named on the face of the note. If either of them received the money, both are bound.” Feltman v. Nat. Bank of Ga., 146 Ga. App. 434, 436 (1) (246 SE2d 447).

There is at most a shadowy semblance of an issue of lack of consideration for the December 28, 1989 note; therefore, the trial court did not err in granting summary judgment on the grounds asserted in this enumeration. Peterson, supra.

4. In view of our holding as to the note of December 28, 1989, we need not address the contentions of appellant regarding the validity of his subsequent $30,000 note and cross-guaranty agreement due to an alleged lack of consideration or otherwise.

All precedent cited by appellant in support of his enumerations of error are not controlling.

Judgment affirmed.

Beasley and Andrews, JJ., concur.

Decided October 29, 1992.

Weener & Associates, Phillip H. Weener, William P. Mason, for appellant.

Schwall & Ruff, Emory A. Schwall, Frederick B. Whittington III, for appellee.


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A1614.
    PATTON v. THE STATE.
    (424 SE2d 350)
   Birdsong, Presiding Judge.

Richard Ernest Patton appeals his conviction for burglary, involving theft of some $16,000 worth of copper wiring from an unoccupied industrial building, the Barfield-Hammock Building, between March 27 and April 6, 1990. Appellant came under suspicion when he was found present in the motel room of another person whom police arrested under warrant for theft of electrical wiring from another building. The police officers, suspecting appellant of involvement in the instant burglary, then compared his fingerprints on file to a fingerprint found on a cover torn off an electrical panel box in the Barfield-Hammock Building. Appellant was arrested and remained incarcerated for four-and-one-half months prior to his trial in September 1990. When his trial was called, his appointed counsel advised the court that, having incorrectly written the trial date in his calendar, he had thought appellant’s trial was scheduled for the following week, and that appellant had mentioned something about retaining other counsel. Appellant interjected that he had been in jail four-and-one-half months, had spoken only once with his attorney and knew nothing about his case. Appellant’s counsel did not specifically ask for a continuance. The trial court found that appellant’s counsel attended a pre-trial hearing and had full notice of the trial date, and the court indicated that appellant had sufficient time while in jail to hire other counsel if he had so wished. The trial proceeded and appellant, during cross-examination, volunteered that he had done nothing wrong except to drink and that he had never gone in people’s houses and robbed them. Thereupon, the State introduced records of appellant’s previous convictions for receiving stolen goods in connection vfith burglaries. New appellate counsel filed an amended motion for new trial asserting inadequate assistance of trial counsel. This issue was heard at the hearing on motion for new trial. Held:

1. The trial court did not err in denying appellant’s motion for new trial on grounds of inadequate assistance of counsel. The trial court issued an order on this subject, finding that appellant did not show trial counsel’s representation fell below the standards stated in Powell v. State, 198 Ga. App. 509, 510 (402 SE2d 108) and Harris v. State, 198 Ga. App. 503 (402 SE2d 62); and that appellant failed to show how the alleged deficiencies in his trial representation prejudiced the outcome of his case. Appellant’s enumerations and arguments on this issue are that trial counsel failed to keep informed concerning the trial; failed to prepare adequately for the trial and to consult with appellant on important issues; failed to investigate the case properly and to interview and call witnesses to trial; and failed to counsel appellant on the dangers of testifying and placing his character in issue; and that but for these deficiencies, there is a reasonable probability the result of the trial would have been different.

Appellant assails trial counsel’s failure to call appellant’s employer to testify in his behalf and his decision not to call an expert witness who would testify that it would take more than one man more than one day to remove all the wiring alleged stolen in this case. Trial counsel testified at the new trial hearing that he made these decisions based on his concept that the State could not prove appellant’s guilt beyond a reasonable doubt based on the slim evidence of his fingerprint and his presence in a room with a suspected burglar and thief of electrical wiring, and upon his desire not to give up closing argument under OCGA § 17-8-71. However, no substance is argued as to what appellant’s employer would have said to exonerate appellant, and expert testimony as to how long and how many men it would take to remove the wiring from this building does not conflict with any evidence of the State and does not raise a reasonable doubt. Trial counsel’s choice of trial strategy to argue insufficiency of the State’s evidence rather than forfeit closing argument by calling such witnesses cannot be assailed in afterthought; errors in judgment and tactical errors do not generally constitute denial of effective assistance of counsel. White v. State, 193 Ga. App. 428, 430 (387 SE2d 921); see Powell, supra at 510-511.

As nothing of predominating substance is shown that would have changed the verdict, that is, raised a reasonable doubt, no harm can be found in the length of time trial counsel spent preparing for this case which would justify overturning the jury’s verdict, or in trial counsel’s mistake in the trial dates or consequent lack of preparation. Appellant’s blurting out that for ten years he had done nothing wrong except drink, and had done no burglaries but had some problems in 1982 because somebody else had some “hot goods” is not clearly a result of not having been inadequately advised, for in fact appellant’s testimony shows a consciousness that he should not stray into such testimony. See generally Jones v. State, 257 Ga. 753 (1) (363 SE2d 529). We note that although appellate counsel asserts appellant did place his character in evidence, trial counsel argued strenuously at trial that appellant did not place his character in evidence; it would seem inappropriate for appellate counsel to concede the correctness of a negative ruling merely to facilitate an argument that trial counsel’s inadequacy caused harm.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205). The trial court’s holding on this issue is not clearly erroneous.

2. The trial court did not err in refusing to grant a continuance in this case. No motion for continuance was made; trial counsel merely complained of his mistake as to the trial date and appellant’s apparent desire to hire other counsel. These matters were considered by the trial court and found meritless. Even where a motion for continuance is properly made on the basis that counsel has not had sufficient time to prepare for trial, the matter is addressed to the discretion of the trial court, and the ruling of the trial judge in denying a continuance will not be interfered with unless the court has abused its discretion. Beard v. State, 178 Ga. App. 265 (342 SE2d 751). Lack of preparation is not alone a ground for continuance (id. at 266), nor is mistake of trial date. In view of what is stated above as to appellant’s failure to show substantive matters of evidence or preparation which would have resulted in a different verdict, no showing has been made that a postponement would have improved appellant’s defense or his trial position, so it cannot be said in retrospect that the trial court abused its discretion in this regard.

3. The trial judge did not err in failing to charge the jury on the lesser included offense of trespassing. “ ‘ “A trial judge never errs in failing to include a charge on a lesser included offense unless there is a written request to charge.” (Cit.)’ [Cit.]” Valdez-Hardin v. State, 201 Ga. App. 126 (410 SE2d 354).

4. We have examined the evidence and find it sufficient to enable a rational trier of fact to find appellant guilty of the offense charged beyond a reasonable doubt and to the exclusion of every reasonable hypothesis. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Andrews, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in Divisions 2, 3, and 4, but not with the entire analysis in Division 1. Counsel’s performance was deficient but the deficiency did not prejudice the defense such that a new trial is required because of the deprivation of effective assistance of counsel.

Decided October 29, 1992.

F. Robert Raley, for appellant.

Willis B. Sparks III, District Attorney, Graham A. Thorpe, Assistant District Attorney, for appellee.