author: Birdsong, Presiding Judge. Beasley, Judge, Pope, Judge,

text:
    A91A1796.
    BAKER v. THE STATE.
    (416 SE2d 295)
   Birdsong, Presiding Judge.

Vaughn Baker was convicted of child molestation of his stepdaughter. On April 8, 1990, when the offense occurred, the child was eight years old. Her mother had been fixing Easter baskets in another room of their small house when she noticed a “quietness”; she walked into her daughter’s bedroom and found her husband Vaughn Baker in the act of molesting her daughter. On appeal of his conviction, Baker enumerates five asserted errors below. Held:

1. Appellant raises three alleged errors for which he says we should reverse the jury’s guilty verdict. On careful examination, we conclude these errors, if they were errors, were caused by or actively encouraged by appellant’s trial counsel to such degree as to amount to the inducement of prejudice and error by appellant’s counsel. In addition to finding inducement of error under authorities cited infra, we find it highly probable that any error, even such as might rise to constitutional proportions, did not contribute to the verdict of guilty. Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869); Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133). Appellant’s wife caught him in the act of molesting the child; the child confirmed she was molested by appellant, and stated that when she tried to get off the bed and run away, appellant “slapped [her] back down again.” In view of the independent evidence of guilt, it would be a perversion of justice to reverse the jury’s verdict on account of errors which were plainly created and provoked by appellant to the extent shown in this case, and would encourage defense counsel in the creation and error and confusion for the purpose of guaranteeing a reversal on appeal. Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515); Carpenter v. State, 167 Ga. App. 634, 641 (307 SE2d 19); see Cauley v. State, 130 Ga. App. 278, 286-288, 290-293 (203 SE2d 239).

(a) Appellant contends the trial court erred in refusing to allow him to enter his plea of not guilty on the indictment which went out with the jury. We find the issue raised by appellant at trial to be illusory.

The transcript shows that after the court had charged the jury, defense counsel said: “Let me look at the indictment, if I may. I’m not sure we have signed it. (Pause) No we haven’t.” The trial court inquired: “You haven’t entered your plea of not guilty?” The State’s attorney asserted that appellant “waived that when he announced ready for trial.” Counsel said it was prejudicial to let the indictment go to the jury without appellant’s plea on it; the trial court asked why the indictment had not been “signed” by appellant, and counsel stated: “We’ve never been arraigned. We waived arraignment.”

The error asserted and argued by.appellant is that he was not permitted physically to enter his plea on the indictment before it was sent out with the jury, which created a prejudicial impression on the jury, and that he may call such “defect” to the court’s attention before the indictment goes out with the jury. See Moore v. State, 153 Ga. App. 511 (265 SE2d 821); Bunn v. State, 150 Ga. App. 294 (257 SE2d 364).

We find no law providing that the defendant must be allowed to enter and sign his plea on the indictment himself. OCGA § 17-7-96 provides: “The arraignment and plea . . . shall be entered on the indictment or accusation by the prosecuting attorney. . . .” The signature of the defendant is not required on the plea entered on the indictment. Brantley v. State, 121 Ga. App. 79 (172 SE2d 852). The back of the indictment in this record shows clearly that on August 21, 1990, prior to trial, the district attorney entered and signed this statement: “The Defendant Vaughn Baker waives being formally arraigned and pleads not guilty.” This satisfies the requirements of the statutes and the rights of appellant at trial. See Tarver v. State, 95 Ga. 222 (21 SE 381).

(b) During deliberations, the jury emerged with three questions: “Are the medical records available? . . . Could the defense have brought the records to court as evidence? ... Is the [video]tape of the girl available for us to see?” The trial court, State’s attorney and defense counsel debated extensively the meaning of the jury’s question: “Are the medical records available?” and the implications of any possible answer. At length, it was decided that actually no one knew whether medical records of an examination of the child had ever been made, but that this was not the question asked by the jury, and therefore absolute honesty towards the jury required the answer: “The medical record is not available for the jury.” Having settled upon that answer, the trial court, State’s attorney and defense counsel determined that since the jury must be honestly told such records were not “available,” then in perfect honesty the only fair answer to the jury’s second question was: “If a medical record had been made of the examination, the defense could have brought that into court as evidence.” The third question was answered: “The [video]tape is available. If you want to see it, let me know.”

Appellant contends the answers to the first two questions shifted the burden of proof to defendant. We agree that no burden of proof could be placed upon the defendant to produce medical records. Having told the jury that medical records were not “available,” it was pointless for the trial court to say that if the records had been available, defendant could produce them. The trial court could not have answered these questions to imply that if medical records were exonerating, the defendant could have (i.e., should have, or would have) brought them in. But since the second question was made pointless by the trial court’s answer to the first, we fail to see where any harm was done to appellant. Moreover, both the State’s attorney and defense counsel asked witnesses whether they knew of any medical records, and all answered no. There was in fact no basis in the testimony to allow the jury to conclude that there were medical records, and the trial court’s answer gave none. The jury was well charged on the burden of proof and could reasonably conclude that if there had been incriminating medical records the State would have produced them. In fact, the jury was told “the medical record is not available to the jury,” so according to the trial court’s answer, there was nothing appellant could have brought to court. Defense counsel participated fully in the debate and composition of the court’s answers to the jury’s questions, and although he was at first in favor of saying “the evidence is closed,” he ultimately did not object to the answers as they went out and appeared to concur fully in the process and the form of answers. It would be wrong to reverse the verdict because of an error that could not logically have affected the jury’s decision, and which the criminal defendant induced. See Annis v. Tomberlin &c. Assoc., 195 Ga. App. 27, 34 (392 SE2d 717). Moreover, one cannot complain of a judgment, order or ruling that his own conduct aided in causing. Wilburn v. State, 199 Ga. App. 667, 669 (405 SE2d 889).

(c) In answer to the jury’s third question, the trial court reopened the evidence and allowed the jury to view the video, despite the fact that the trial court had, during trial, refused to admit it because the State had not given defense counsel notice of intent to introduce it, and despite the fact that the videotape had evidently not been produced to defense counsel and defense counsel had not viewed it. The State assured the court and defendant that nothing prejudicial was in it, but appellant complains on appeal that the videotape contained some prejudicial mention of “dirty movies,” and the evidence should not have been reopened during deliberations to admit it.

We find no grounds for complaint here. There were several objections defense counsel could have made to the admission of this videotape, on the same grounds by which he had prevented the trial court from introducing it at trial, but counsel made no objection whatever to the jury’s viewing of the videotape, except to question whether the evidence could be reopened after the jury began deliberations. As to this question, the law is against the position taken by appellant. Childs v. State, 257 Ga. 243, 255 (357 SE2d 48).

If there was any prejudicial material on this videotape, it was appellant’s own conduct which invited it. to be displayed to the jury. A criminal defendant, no more than a party to a civil proceeding, cannot stand mute when evidence is introduced or admitted which he knows may be prejudicial and harmful, and then assign error to it on appeal and gain a reversal. In this case, the defense had already kept this videotape out of evidence because counsel had not had notice of it and had not viewed it; to allow the admission of it later without objection to its nature was to invite error and create grounds for appeal. It was not error per se to reopen the evidence during the jury deliberations, and if there was anything prejudicial in this tape, this error was invited by appellant and is not assignable on appeal. Precision Printers v. Central Mut. Ins. Co., 175 Ga. App. 890, 892 (334 SE2d 914).

2. Appellant complains that the trial court unduly restricted his cross-examination of the child, by erroneously relying upon Hall v. State, 196 Ga. App. 523 (396 SE2d 271), concerning the sexual abuse “accommodation syndrome.” Appellant attempted to question the child about accusations of molestation he contended she had made against other persons, that is, to show “that this young lady has accused other people maliciously.” The trial court discussed Hall, which held admissible evidence of prior molestation of the child victim by other family members to show that the cause of that child’s “syndrome” behavior was the abuse by persons other than defendant.

The trial court did not prohibit appellant from cross-examining the child about other molestation or molestation by others. The court advised appellant that if he brought up that matter as an attempt to show the “credibility” of this child, then the State would be allowed to introduce evidence of a previous molestation attempt by appellant; and the State advised appellant that it did have evidence of a previous molestation incident involving appellant which it would introduce. We see nothing inappropriate in the trial court’s ruling, and in any case, appellant did successfully bring in the desired evidence through another adult witness.

3. Appellant is not entitled to a new trial on the general grounds of insufficiency of the evidence. The evidence in this case is sufficient to convince a rational trier of fact of appellant’s guilt of the offense charged beyond a reasonable doubt, according to the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

McMurray, P. J., Cooper, Andrews, JJ., and Judge Arnold Shulman concur. Beasley, J., concurs specially. Sognier, C. J., Carley, P. J., and Pope, J., dissent.

Beasley, Judge,

concurring specially.

I concur in Divisions 1 (a), 2 and 3.

I concur in Division 1 (b) because the defendant participated in the framing of the answers and, when the court repeated the answers which it intended to give to the jury and asked if defendant had any objection, none was voiced. Furthermore, the issue of whether the answers to the first two questions were burden-shifting is raised for the first time on appeal, which is too late. Nicely v. State, 197 Ga. App. 206, 207 (3) (397 SE2d 630) (1990); Anthony v. State, 197 Ga. App. 297, 299 (3) (398 SE2d 580) (1990). See Foshee v. State, 256 Ga. 555, 556 (2) (350 SE2d 416) (1986). Not even new grounds can be raised on appeal. Hoover v. State, 198 Ga. App. 481, 482 (3) (402 SE2d 92) (1991); Bailey v. State, 198 Ga. App. 632, 633 (1) (402 SE2d 363) (1991). The instructions were not such as are accommodated by OCGA § 5-5-24 (c) because they do not shift the burden of proof.

Division 1 (c) addresses defendant’s third enumeration, that the court erred in reopening the evidence and submitting the video and in denying a mistrial. After the answers to the jury’s three questions had been framed, defendant indicated no objection even to the answer to the third question, that the tape is available and that if the jury wanted to see it, to let the court know. Before the jury returned, the court advised defendant that if the evidence were reopened to see the tape, the court would reopen the evidence and allow defendant to put up other evidence if he desired to do so. No objection was made to this plan. Then after the tape was shown and a motion for mistrial, made on the ground that prejudicial material was contained in it, was denied, defendant did not seek to put up any other evidence. Because of this context, I concur with the majority.

Pope, Judge,

dissenting.

1.1 must dissent to Divisions 2 and 3 of this opinion. With regard to Division 2, I cannot agree that the answers the trial court gave to the first two questions submitted by the jury during their deliberations constitute harmless error in this case. The first question posed by the jury was: “Are the medical records available?” It is obvious from the way that question is phrased that the jury assumed that there were medical records based on the testimony offered at trial by the State’s witnesses concerning the examination of the victim at a hospital after the alleged molestation. Although the attorneys for the parties were not certain if there were medical records of the examination, the answer sent to the jury that “[t]he medical record is not available for the jury” did not relay their uncertainty. Indeed, the answer implied there were medical records, but the jury would not receive them.

The jury’s second question, “Could the defense have brought the records to court as evidence?” indicates that the jury did not understand the court’s charge and thought the defendant had a duty to present evidence at trial and that he should have introduced the records of the medical examination of his stepdaughter if the records would have exonerated him or aided his defense. The trial court responded: “If a medical record had been made of the examination, the defense could have brought that into court as evidence.” Since the answer to the first question implied that there were medical records, and the answer to the second question made it clear that the defendant could have presented any medical records as evidence, I cannot agree with the majority that no harm was done to defendant. Absent a reminder to the jury that the State has the burden of proving each element of the crime charged and that the burden never shifts to the defendant to prove his innocence, the answers to these questions constituted impermissible burden shifting. See generally Swint v. State, 199 Ga. App. 515, 516 (1) (405 SE2d 333) (1991).

The special concurrence presumes that this court is barred from considering this issue because it was not preserved by the defendant below. The law is well-established in this state, however, that defendants in criminal cases are exempt from the strict requirements of preserving error from the court’s instruction to the jury when the erroneous instruction is clearly harmful and erroneous as a matter of law. OCGA § 5-5-24 (c); Spear v. State, 230 Ga. 74, 75 (195 SE2d 397) (1973); Carr v. State, 183 Ga. App. 36 (3) (357 SE2d 816) (1987); Sosebee v. State, 169 Ga. App. 370, 372 (3) (312 SE2d 853) (1983). Certainly, instructions to the jury that have the effect of shifting the burden of proof to defendant rise to this level, and consequently, this error must be considered by the court.

2. As indicated in Division 3 of the majority opinion, in response to the jury’s third question, “Is the tape of the girl available for us to see?,” the trial court reopened the evidence and allowed the jury to view the tape, even though the trial court had earlier refused to allow the State to present the tape because the State had not given defense counsel notice of intent to introduce it, and despite the fact that the videotape had not been produced to defendant. After the jury was told that the tape was available, they requested to see it. Although the State assured the defendant and the court that it contained no prejudicial material, it did in fact contain prejudicial material concerning “dirty” movies.

The majority simply finds that the admission of this prejudicial material is harmless error because the defendant did not renew his objection to the admission of the tape after the jury requested to see it. The Georgia Supreme Court, however, recently held that objections to illegal evidence can be made anytime before the case is submitted to the jury. Mable v. State, 261 Ga. 379 (1) (405 SE2d 48) (1991). Furthermore, a defendant should not have to continuously object to evidence that has been ruled inadmissible.

Decided January 24, 1992

Reconsideration denied February 19, 1992

Neil A. Smith, James T. Irvin, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

Although the majority opinion does not mention this pertinent fact, defendant moved for a mistrial after the tape was viewed. The trial court denied that motion. “Whether a mistrial is necessary to preserve the defendant’s right to a fair trial is a matter within the discretion of the trial judge. [Cit.]” Tyler v. State, 198 Ga. App. 685, 687 (1) (402 SE2d 780) (1991). “When prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions.” Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982).

. In this case, the trial court simply denied defendant’s motion for mistrial without any curative instruction to the jury. Under the facts of this case, the trial court’s failure to take any action to cure the admission of prejudicial evidence constitutes an abuse of discretion and reversible error.

In sum, the trial court should have granted the defendant’s motion for mistrial, or at least issued a curative instruction to the jury concerning the prejudicial evidence contained in the videotape. Furthermore, the trial court’s response to the first two questions posed by the jury impermissibly shifted the burden to defendant to come forward with exonerating evidence. For these reasons, this case should be reversed and remanded for a new trial.

I am authorized to state that Chief Judge Sognier and Presiding Judge Carley join in this dissent.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A91A1668. A91A1669. A91A1670. A91A1671.
    STATE OF GEORGIA v. WALLS. STATE OF GEORGIA v. HANKINSON. STATE OF GEORGIA v. NEWMAN. STATE OF GEORGIA v. ANDERSON.
    (415 SE2d 921)
   Cooper, Judge.

On December 4, 1989, agents from various federal, state and local law enforcement agencies executed search warrants and seized certain property and currency from appellees. Within 30 days after the district attorney received notice of the seizure, four condemnation actions were filed for the forfeiture of the property and currency seized from each of the respective appellees. The first sentence in each of the condemnation actions stated that the action was brought pursuant to OCGA § 16-13-49, which specifically deals with the forfeiture of property or currency realized or derived from the distribution of controlled substances. However, paragraph three of each action recited that the seized property was used to facilitate a gambling offense and was derived from a gambling offense, which is the basis for condemnation actions brought pursuant to OCGA § 16-12-32. Both OCGA §§ 16-13-49 and 16-12-32 require that condemnation actions be brought within 30 days after the district attorney receives notice of the seizure. Appellees responded to the condemnation actions and moved to dismiss the actions on the ground that the State failed to follow the requirements of OCGA § 16-13-49. The State filed an amendment to each condemnation action substituting § 16-12-32 in place of § 16-13-49; however, the amendment was not filed within 30 days after the district attorney received notice of the seizure. The trial court dismissed all of the condemnation actions, finding that the State had failed to bring the actions within the time required by either forfeiture statute. The State appeals from the dismissal of each of the condemnation actions.

The State contends that under Rule 15 (a) of the Civil Practice Act, amendments to the pleadings are allowed at any time before the entry of a pretrial order; therefore, it should have been allowed to amend the condemnation actions to insert the correct Code section. Appellees argue that the Civil Practice Act does not apply to condemnation actions. OCGA §§ 16-12-32 and 16-13-49 are special statutory proceedings “which must be strictly construed and complied with. [Cits.] As such, not all provisions of the Civil Practice Act apply. OCGA § 9-11-81.” Fulton v. State of Ga., 183 Ga. App. 570, 571-572 (359 SE2d 726) (1987). OCGA § 9-11-81 makes the Civil Practice Act applicable “to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law.” The statute further provides that “in any event, the provisions of this chapter governing the sufficiency of pleadings, defenses, amendments, . . . shall apply to all such proceedings.” (Emphasis supplied.) OCGA § 9-11-81. In State of Ga. v. Croom, 168 Ga. App. 145 (308 SE2d 427) (1983), in a libel for condemnation action brought pursuant to OCGA § 16-13-49, the State attempted to amend its pleadings during the pretrial conference to conform to the evidence which the State contended would be shown at trial. The trial court refused to allow the amendment, and we reversed, holding that under OCGA § 9-11-15 (a) the State had a right to amend during the pretrial conference. In the case sub judice, the State mistakenly put the wrong Code section in the first sentence of the condemnation action. Paragraph three of the action, however, clearly set forth an action under OCGA § 16-12-32. The State should have been allowed to amend the action to make the Code section conform to the allegations contained in the condemnation action. We do not agree with appellees’ argument that the State was attempting to chánge the nature of the action by substituting one special statutory proceeding for another. The State merely changed the Code section to make it correspond to the remaining allegations in the action. Since the amendment was made before the entry of a pretrial order, the trial court erred in dismissing the actions. See State of Ga. v. Croom, supra.

Decided February 19, 1992.

Spencer Lawton, Jr., District Attorney, John T. Garcia, Assistant District Attorney, for appellant.

Herndon, Chestnut, Rosenblum & Ashby, Thomas R. Herndon, for appellees (case nos. A91A1668 and A91A1669).

George M. Hubbard III, for appellee (case no. A91A1670).

Calhoun & Associates, John R. Calhoun, James C. Metts III, for appellee (case no. A91A1671).

Judgments reversed.

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


text:
    A91A1704.
    McNEIL v. THE STATE.
    (415 SE2d 922)
   Cooper, Judge.

Appellant was convicted by a jury of possession of cocaine with intent to distribute. He appeals from the judgment and sentence entered on the conviction and the denial of his motion for new trial.

The evidence viewed in the light most favorable to the jury verdict reveals that on May 18, 1989, several officers with the City of Atlanta Red Dog Squad were traveling in an unmarked vehicle when they observed appellant and several men standing at a street corner. Upon seeing the officers, appellant and the others began running away from the corner. One of the officers saw appellant running with a large plastic bag in his hand, which appeared to the officer to contain cocaine. The officer pursued appellant and followed him into a nearby house where he saw appellant throw the bag of suspected cocaine onto a bookcase in the living room. The officer apprehended appellant and recovered the plastic bag which contained 52 smaller bags of suspected crack cocaine. A witness for the State testified that the substance in the bags was cocaine. Appellant testified that he was at the intersection to purchase marijuana; that when the officers announced their presence, everyone, including appellant broke and ran; that he did not know who lived in the house at 885 Crew Street, but he ran into the house because other people ran into the house; that once inside the house, he went into a room and sat down; and that the police subsequently came into the house and took appellant to the patrol car, after which the officers came out with the bag of drugs.

Appellant raises as his sole enumeration of error that the trial court erred in excluding evidence that someone other than appellant committed the crime. Appellant called as a witness, Mrs. Nellie Mitchell, the owner of the house into which appellant ran. After establishing that Mrs. Mitchell’s three sons resided at the house with her, appellant’s counsel attempted to ask her whether one of her sons had been arrested. The State objected, and outside the presence of the jury, appellant’s counsel stated that the witness could testify that one of her sons had previously been arrested for possession of cocaine. Appellant offered the testimony as evidence that the cocaine found by the officer could have belonged to Mrs. Mitchell’s son. The trial court ruled that the evidence was inadmissible.

“ ‘ “ ‘(E)vidence is relevant which logically tends to prove or disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant.’ ” ’ [Cit.]” Hoffer v. State, 192 Ga. App. 378, 383 (3) (b) (384 SE2d 902) (1989). Appellant’s defense was that he did not know who the cocaine belonged to but that it could have belonged to Mrs. Mitchell’s son. The only proffer made by appellant’s counsel was that one of Mrs. Mitchell’s sons had a prior arrest for possession of cocaine. Although appellant’s counsel stated to the trial court that Mrs. Mitchell’s son had been arrested around the same time that appellant was arrested, May 1989, appellant’s counsel remarked in his opening statement to the jury that one of Mrs. Mitchell’s sons had been arrested for possession of cocaine in 1988. The evidence offered by appellant did not logically tend to prove or disprove either that Mrs. Mitchell’s son committed the crime or that appellant did not commit the crime. The evidence offered would have served merely to divert the jury’s attention from the following pertinent facts of the case: the arresting officer saw appellant throw the bag which was later determined to contain cocaine on the bookcase, and appellant failed to offer any evidence linking the bag recovered by the officer to anyone living in the house in which appellant was arrested. Accordingly, we find no error with the trial court’s exclusion of the evidence. See Palmer v. State, 186 Ga. App. 892 (3) (369 SE2d 38) (1988). Appellant’s reliance on Henderson v. State, 255 Ga. 687 (341 SE2d 439) (1986) and Walker v. State, 260 Ga. 737 (399 SE2d 199) (1991) is misplaced. In both of those cases, the defendants maintained as their defense that another person had committed the crime involved, and the trial court refused to admit evidence that implicated the other person. The Supreme Court of Georgia held that the evidence directly bore on the defense in the cases.

Decided February 19, 1992.

Kenneth D. Kondritzer, for appellant.

Lewis R. Slaton, District Attorney, for appellee.

Judgment affirmed.

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


text:
    A91A1766.
    ALLMOND et al. v. STATE OF GEORGIA.
    (415 SE2d 924)
   Cooper, Judge.

This appeal arises out of a civil forfeiture action brought by the State pursuant to OCGA § 16-13-49 against $1,973 and a personal computer. The currency and computer were seized from Dewey Allmond, the husband and father of appellants. Appellants’ sole enumeration of error is that the trial court erred in denying their motion to intervene in the forfeiture action.

The property in question was seized by an officer assigned to a local drug enforcement task force. The forfeiture complaint recited that both the currency and the computer were found in close proximity to cocaine; that they had both been used to facilitate the distribution of drugs in violation of the Georgia Controlled Substances Act; and that both were in the possession of Dewey Allmond. Several days after the forfeiture action was filed, Dewey Allmond executed a document captioned “Assignment of Interest in Pending Action,” in which he purported to assign all of his interest in the currency and computer to appellants. Appellants then filed a motion to intervene, alleging an interest in the property. The trial court denied the motion on the grounds that appellants lacked standing to intervene in the forfeiture proceedings.

Decided February 19, 1992.

Harriss,' Hartman, Aaron, Wharton & Boyd, John L. O’Dell, for appellants.

Ralph L. Van Pelt, Jr., District Attorney, Ronald M. Adams, As sistant District Attorney, for appellee.

“ ‘(I)t is clear that to have standing to contest a forfeiture a party must have at least some property interest in the subject matter of the condemnation proceeding.’ [Cit.]” Hill v. State of Ga., 178 Ga. App. 563, 565 (2) (343 SE2d 776) (1986). Appellants contend that they have an interest in the seized property by virtue of the assignment as well as an equitable interest due to the duty to support owed to them by Dewey Allmond. Since the forfeiture statute at OCGA § 16-13-49 does not address the specific situation presented by this case, we must construe the meaning of the statute as it applies to a condemnee’s attempt to assign the property after its seizure by the State. “This court has . . . held that the forfeiture statute must be strictly construed. [Cit.] With these principles in mind we find that, with respect to the issues at hand, the statute sets out and balances two legislative intentions: (1) the prompt disposition of property subject to forfeiture under the statute (State v. Britt Caribe, Ltd., 154 Ga. App. 476, 477 (268 SE2d 702) (1980)); and (2) the protection of property interests of innocent owners as defined by the statute. [Cit.] Our task is to apply the statute in a manner that gives effect to those balanced intentions.” State of Ga. v. Jackson, 197 Ga. App. 619, 620-621 (1) (399 SE2d 88) (1990).

We cannot conclude that the legislature, in enacting OCGA § 16-13-49, intended that property owners of seized property be allowed to execute a post-seizure assignment of that property to a third party. In fact, the amended statute, which was not effective at the time of the forfeiture in this case, provides that “[p]roperty taken or detained under this Code section is not subject to replevin, conveyance, sequestration, or attachment.” (Emphasis supplied.) OCGA § 16-13-49 (k), as amended effective July 1, 1991. Nor do we find any merit in appellants’ argument that they have an interest in the property resulting from the family relationship and the duty of support owed to them by Dewey Allmond. We find no support for appellants’ argument in OCGA § 16-13-49 and will not interpret the statute in such a way as to allow persons to claim an interest in the property due to a debt or duty owed to them by the property owner. To do so would not give effect to the statute’s intent to balance the interests of innocent property owners against the State’s need to promptly dispose of forfeited property. Accordingly, we find no error in the trial court’s denial of appellants’ motion to intervene.

Judgment affirmed.

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


text:
    A91A1986.
    WILKEY v. THE STATE.
    (416 SE2d 350)
   Cooper, Judge.

Appellant was convicted by a jury of selling cocaine. The trial court denied appellant’s motion for directed verdict, and appellant enumerates this denial as error. Appellant also enumerates error in the court’s charge to the jury.

Appellant argues that the court erred in denying his motion for directed verdict because the State offered no evidence to rebut appellant’s affirmative defense of entrapment. The entrapment defense consists of the following three distinct elements: “(1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. [Cits.]” Keaton v. State, 253 Ga. 70, 72 (316 SE2d 452) (1984). At trial, appellant and the confidential informant, who was appellant’s brother, both testified. Appellant testified that he has never used or sold drugs; that he does not keep drugs in his house; and that, except for a shoplifting arrest when he was 16, he has never been arrested or the subject of any criminal charge. Appellant stated that his brother called and asked him if he could obtain some cocaine from a local pool hall; that he refused repeated similar requests from his brother; that during one call his brother was upset and frantic and told him that the brother and his family had been threatened by “his man” because the brother could not supply the “man” with drugs and the brother had to come up with the drugs; that after that call, appellant told his brother he would try to help him; that his brother and another man came to the house where he was staying to get the drugs; that appellant did not have the drugs at that time; that the other man threatened him; that appellant then went and purchased cocaine alone; and that the man and his brother returned and purchased the cocaine, reimbursing appellant for the money he had spent. Appellant further testified that his brother contacted him the next day and requested more cocaine; that he did not want to comply; that the brother persuaded him to meet with the man once more to refer the man to the suppliers at the pool hall; and that the brother and the man returned to the house, and appellant had no drugs for them. Appellant’s brother testified that he called appellant in an attempt to assist the police in an investigation of drug dealing at the pool hall; that appellant stated he did not want to be involved; that the police told him to feign trouble in order to gain appellant’s cooperation, which he did; that he made many calls to appellant which he did not record; and that the police told him prior to his involvement that appellant would not get in trouble. The remainder of the informant’s testimony was consistent with the testimony of appellant. The State presented the undercover officer’s testimony who recounted the drug deal but who testified that he had never had any conversations with appellant; that everything was set up through the informant; that he did not listen to any of the conversations between the informant and appellant; and that he had no knowledge of what transpired between the informant and appellant prior to the drug transaction. The State attempted to impeach the informant’s testimony and relied on the officer’s description of the drug deal, but otherwise presented no evidence to rebut the defense of entrapment advanced by appellant and corroborated by appellant’s brother, the informant.

The recent decision of the Georgia Supreme Court, Hill v. State, 261 Ga. 377 (405 SE2d 258) (1991), requires us to reverse. The following quote from Hill is directly applicable to the case sub judice: “After a defendant presents a prima facie case of entrapment, the burden is on the state to disprove entrapment beyond a reasonable doubt. That determination generally rests with the jury; however, where there is no conflict in the evidence, and all the evidence prior to the entrapment that is introduced, with all reasonable deductions and inferences, demands a verdict of acquittal, the trial judge must direct a verdict of acquittal. [Cit.] The government’s burden is far greater than merely impeaching the accused, it ‘must go further and contradict this witness’ testimony as to the affirmative defense. [Cits.]’ [Cit.] . . . The appellant’s testimony, corroborated by the paid informant, established a prima facie case of entrapment. There was no evidence that prior to the appellant’s entrapment he had a predisposition to deliver, sell, distribute, or knowingly possess cocaine. . . . There was no testimony that conflicted with the appellant’s and the paid informant’s testimony regarding the circumstances surrounding the informant’s solicitations. [Cit.] The state attempted to rebut the appellant’s prima facie case with [the officer’s] testimony; however, his testimony was not sufficient to meet the state’s burden of proving that the appellant ‘was ready and willing without persuasion and awaiting a propitious opportunity to commit the crime. [Cit.]’ [Cits.] The state failed to introduce evidence to rebut the appellant’s affirmative defense of entrapment; therefore, the appellant was entitled to a directed verdict of acquittal. [Cits.]” (Indention omitted.) Hill, supra at 377-378. See Emanuel v. State, 260 Ga. 425 (396 SE2d 225) (1990) (reversing Emanuel v. State, 195 Ga. App. 302 (393 SE2d 74) (1990)).

Decided February 19, 1992.

W. Jason Uchitel, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

Following the holding in Hill, supra, we conclude that the court in the case sub judice erred in denying appellant’s motion for a directed verdict. Therefore, we need not address appellant’s remaining enumerations of error.

Judgment reversed.

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


text:
    A91A2228.
    SMITH v. THE STATE.
    (416 SE2d 129)
   Cooper, Judge.

Appellant was convicted of theft by taking a motor vehicle and appeals the trial court’s denial of his motion for new trial on the sole ground that the court erred in admitting into evidence two prior motor vehicle theft convictions. Appellant contends the prior convictions were not sufficiently similar to the offense for which he was tried.

The evidence adduced at trial showed that the victim consented to appellant’s use of her car for approximately one hour; however, after appellant did not return the car for several days, the car was reported stolen. Approximately two weeks following the car’s disappearance, it was discovered by the police in Elberton, Georgia. The victim of a prior auto theft, to which appellant pled guilty, testified that he was working on a car in front of his house and was approached by appellant who asked him if appellant could drive the victim’s other car to get auto parts. The victim gave appellant $65 to purchase the auto parts and testified that he did not see his car again for two weeks when the car was discovered in south Georgia. A third victim testified that appellant came to her home and asked her for a ride. When she refused, appellant asked if he could use the phone, and while using the phone, appellant took the victim’s car keys and subsequently left in her car. The victim called the police, and about one hour later the police discovered the car parked on the victim’s street. Appellant entered a guilty plea to the offense of theft by taking a motor vehicle in the incident.

Decided February 19, 1992.

J. Michael Mullis, for appellant.

Harry N. Gordon, District Attorney, Audrey A. Butler, Assistant District Attorney, for appellee.

“ ‘Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact.’ (Emphasis deleted.) [Cit.] ‘(B)efore evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.’ [Cit.]” Aaron v. State, 195 Ga. App. 339 (1) (393 SE2d 698) (1990). “There is no requirement that. . . the ‘other transaction’ must be identical in every aspect. ‘The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence “may be admitted if it ‘ “is substantially relevant for some purpose other than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character. . . .” ’ ” (Cit.)’ [Cit.]” (Emphasis deleted.) Faison v. State, 199 Ga. App. 447, 448 (1) (405 SE2d 277) (1991).

In our view, the evidence of the other crimes met the conditions of admissibility. Appellant pled guilty to the two offenses, and the offenses showed appellant’s bent of mind and course of conduct. We concur with the State that as to the issue of intent, the evidence discredited appellant’s testimony that he simply borrowed the victim’s car, and the evidence also negated any possibility of mistake or lack of guilty knowledge of the offense committed. “Moreover, a proper limiting instruction was given.” Aaron, supra at 340. Accordingly, the trial court did not err in admitting the evidence of similar crimes.

Judgment affirmed.

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


author: Judge Arnold Shulman.

text:
    A91A1693.
    GOBER v. THE STATE.
    (416 SE2d 292)
   Judge Arnold Shulman.

As the result of an encounter with a motorist whom he stopped while on duty as a Georgia State Patrol trooper, the appellant was found guilty by a jury of rape, kidnapping with bodily injury, false imprisonment, violation of his oath as a public officer, sexual assault against a person in custody, and simple battery. He brings this appeal from the convictions and sentences entered on that verdict.

The evidence established that the appellant stopped Lisa Redmond at around 4:00 a.m. on November 26, 1989, as she was driving home from a convenience store in the company of her live-in boyfriend, Tim Gable. After administering an alcosensor test to her, the appellant informed Redmond that she had registered a blood-alcohol level of .18 and that he would have to take her to jail for DUI. He then asked Gable if he could drive their car home, but he responded that he could not do so because he had been drinking. The appellant thereupon drove the couple to their residence in his patrol car, dropped off Gable, and left with Redmond, ostensibly to take her to jail. However, he instead drove her to an isolated area, where he engaged in sexual intercourse with her. The appellant testified that Redmond voluntarily consented to the intercourse “in exchange for me not making a DUI case against her.” However, Redmond testified unequivocally that she was not a willing and voluntary participant in the act and that she “didn’t have any choice.”

1. The appellant moved to quash the indictment on the ground that he had not been permitted to be present and to make a sworn statement when the case was presented to the grand jury. Peace officers are afforded these rights under OCGA §§ 17-7-52 and 45-11-4 if charged with a crime “which is alleged to have occurred while ... in the performance of [their] official duties. . . .” In Mize v. State, 152 Ga. App. 190 (1) (262 SE2d 492) (1979), this court held that a police officer charged with participating in a burglary while in uniform and on duty was properly denied these protections, inasmuch as “[t]he performance of such official duties does not include the commission of burglaries.” Id. at 192. The performance of official duties likewise does not include rape. Compare State v. Roulain, 159 Ga. App. 233 (2) (283 SE2d 89) (1981) (applying the statute in a prosecution against prison employees charged with involuntary manslaughter for having confined a prisoner under conditions which caused his death by heat prostration). Moreover, it appears that the appellant was dismissed from his job as a trooper some seven-and-one-half months before the case was presented to the grand jury. The appellant concedes that in Lundy v. State, 195 Ga. App. 682 (394 SE2d 559) (1990), this court recently held the statute to be inapplicable under such circumstances; however, he urges us to reverse this decision. We decline and hold that the appellant’s motion to quash the indictment was properly denied.

2. The appellant enumerates as error the denial of a motion in limine which he filed prior to trial seeking to prevent the district attorney from referring to Redmond as a “victim.” In denying this motion, the trial court stated that “while reference to the alleged victim as ‘the victim’ may technically imply that a crime has been committed, the common usage of the term ‘victim’ in connection with criminal prosecutions embodies the concept that the complaining party is allegedly the object of a crime.” The court thus concluded that the use of the term was “not such as to create a belief on the part of the jury that a crime has in fact been committed.”

The appellant has cited no authority whatever suggesting that the use of such language by a prosecutor is grounds for a new trial, nor, for that matter, has he referred us to any specific instance in the present case wherein the state’s attorney in fact used such terminology. In any event, since he admitted that he presented Redmond with a choice between being taken to jail or having sex with him and further admitted having “betray[ed] a public trust of my office” by engaging in such conduct, he is hardly in a position to assert that Redmond was not victimized by him. For these reasons, we hold that this enumeration of error establishes no ground for reversal.

3. The state was allowed to introduce as similar transaction evidence testimony that the appellant had committed a virtually identical rape approximately 24 hours earlier, as well as testimony that, some four years previously, he had given a woman a speeding ticket and then telephoned her the next day to tell her “he would be glad to take care of my ticket if I would meet him at one of the parks.” The appellant contends that the latter incident was insufficiently similar to the one for which he was on trial to be admissible as similar transaction evidence with respect to the rape charge, since the woman in question admitted that he had not threatened, intimidated, or sexually assaulted her and further testified that he had dealt with her in a professional manner when he gave her the speeding ticket. For these very reasons, however, the testimony of this witness could not have been prejudicial to the appellant. Rather, it was, if anything, beneficial to him in that it supported his testimony that he had not raped the victim in the present case but had simply agreed not to charge her with DUI if she would have sex with him. It follows that this enumeration of error also establishes no ground for reversal.

4. The appellant contends the trial court erred “by allowing the district attorney to use the perjured testimony of a witness, Tim Gable, and by not calling Scott Rogers as a witness to correct the perjured testimony.” Rogers lived with Gable and Redmond as their roommate. It appears that in a pre-trial interview with an assistant district attorney, a memorandum of which was provided to defense counsel prior to trial, he stated that Gable “flew off the handle” when Redmond told him what the trooper had done and that the couple spent the next ten minutes “hollering at each other.” Rogers was not called as a witness in the case. However, Gable was; and during cross-examination by defense counsel he denied that he had gone “berserk” when Redmond told him what had happened, testifying that he had remained calm and supportive. After the state rested, defense counsel moved the trial court to call Rogers as a witness, arguing that by not calling him itself, the state had allowed Gable to present uncorrected false testimony, thereby forcing the defense “into the position of calling the witness, and then perhaps losing the right to a closing argument. . . .”

This enumeration of error is without merit. This is not a situation wherein the state allowed a witness to give false testimony which defense counsel had no means of correcting. Compare Smith v. Zant, 250 Ga. 645 (3) (301 SE2d 32) (1983); Allen v. State, 128 Ga. App. 361 (196 SE2d 660) (1973). Rather, the state provided the defense with a copy of Rogers’ statement prior to trial, thereby fully discharging whatever disclosure obligation it had in the matter. It cannot be considered guilty of prosecutorial misconduct under the circumstances merely because Gable gave testimony on cross-examination by the appellant’s counsel which conflicted with that pre-trial statement.

5. The appellant contends that the trial court erred in prohibiting his counsel, on motion by the state, from arguing to the jury that certain inferences could be drawn from the state’s failure to call Rogers as a witness. “As a general rule, ‘the defendant is not permitted to comment on the State’s failure to produce certain witnesses.’ Wilson v. Zant, 249 Ga. 373, 384 (290 SE2d 442) (1982). Appellant has failed to demonstrate why that general rule should not be applied in his case. Therefore, we find no error.” Braggs v. State, 189 Ga. App. 275 (3), 276-277 (375 SE2d 464) (1988).

6. The appellant contends the trial court erred “by refusing to charge the jury on the law of bribery under OCGA § 16-10-2 since it was [his] sole defense.” The appellant was not charged with bribery and does not assert that bribery constituted a lesser included offense of any of the charges for which he was on trial. It follows that the trial court was under no obligation to charge on this offense. See generally State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976).

7. The appellant contends the trial court erred in charging the jury that “sexual intercourse with a woman whose will is temporarily lost due to intoxication is rape.” As the evidence establishes without dispute that Redmond’s will was not lost to intoxication at the time the intercourse took place, we must agree that there was no evidentiary basis for this charge. However, in the context of the issues being tried and of the evidence as a whole, we hold that the charge was harmless — i.e., that it is highly probable that it did not contribute to the verdict. See Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

Decided January 16, 1992

Reconsideration denied February 20, 1992

Summer & Summer, Daniel A. Summer, for appellant.

C. Andrew Fuller, District Attorney, William M. Brownell, Jr., Leonard C. Parks, Jr., Assistant District Attorneys, for appellee.

8. The appellant finally contends that because the bodily injury on which his kidnapping with bodily injury conviction was predicated consisted of the rape of which he was also convicted, these two offenses merged, with the result that the sentence of life imprisonment which he received for kidnapping with bodily injury must be vacated. The state concedes that these two offenses merged under the circumstances. See Allen v. State, 233 Ga. 200, 203 (210 SE2d 680) (1974). It contends, however, that kidnapping with bodily injury constituted the greater of the two offenses and that it is therefore the 20-year sentence imposed on the rape conviction which should be vacated, rather than the mandatory life sentence for kidnapping with bodily injury. See OCGA § 16-5-40 (b). We agree. See Brown v. State, 247 Ga. 298 (8) (275 SE2d 52) (1981). The appellant’s sentence for rape is accordingly vacated. However, the judgment of the trial court is otherwise affirmed.

Judgment vacated in part and affirmed in part.

Carley, P. J., and Beasley, J., concur.


author: Pope, Judge.

text:
    A91A1973.
    DRIEBE et al. v. COX.
    (416 SE2d 314)
   Pope, Judge.

This appeal involves a claim by a seller of real estate against the buyer’s closing attorney and his law firm for the closing attorney’s alleged negligence in drafting the warranty deed from seller to buyer. Appellee Richard J. Cox entered into a contract to sell Rotomco, Inc., certain real estate located in Newton County. Rotomco employed appellant Charles J. Driebe and his firm Driebe & Driebe, P.C. to close the sale. Relying on a survey prepared by East Metro Surveyors, Inc., who are also third-party defendants below, Driebe prepared a warranty deed wherein Cox purported to transfer 130.1 acres to Rotomco. Cox in fact did not own approximately 4.5 acres of that tract. Cox attended the closing with his attorney.

Approximately a year later, an attorney, representing the owners of the 4.5 acre tract that was erroneously transferred, contacted the parties to this transaction pointing out the mistake. Rotomco made a demand on Cox to refund the apportioned part of the purchase price, which was determined to be $25,076.88. Cox refused. Driebe then paid the lender the apportioned purchase price and obtained the necessary quitclaim deeds from Rotomco and Rotomco’s lender for the true owners.

Rotomco thereafter sued Cox for breach of his warranty of title and for his failure to pay the requested apportioned value of the 4.5 acre tract. Cox responded denying liability and filed a third-party action against Driebe, his law firm (hereinafter collectively “the Driebe defendants”) and the surveyors. This case was tried before a jury and bifurcated as to the two claims: (1) the “main” claim in which Rotomco sought damages against Cox for breach of warranty; and (2) the “third-party” claim in which Cox sought indemnity against the Driebe defendants and the surveyors. The jury returned a verdict in favor of Rotomco against Cox on the main claim in the amount of $17,510.32. On the third-party claim, the jury returned a verdict in favor of Cox, finding that he was entitled to indemnity from the Driebe defendants in the amount of $15,759.38 and from the surveyors in the amount of $875.52. The Driebe defendants filed this appeal from that judgment.

1. This case presents the novel issue to this court of whether the attorney for the buyer in a real estate transaction can be held liable to the seller for negligence in legal work in connection with the sale. Before an action for malpractice or negligence can lie against an attorney, there must be a legal duty from the attorney to the plaintiff. Like many states, the trend in Georgia has been to relax the rule of strict contractual privity in malpractice actions, recognizing that under certain circumstances, professionals owe a duty of reasonable care to parties who are not their clients.

In deciding whether Driebe owed a duty to Cox, we are guided by other decisions of this court in which we were asked to consider whether an attorney had a duty to a third party in a real estate transaction. In Simmerson v. Blanks, 149 Ga. App. 478 (254 SE2d 716) (1979), the seller in a real estate transaction was allowed to pursue a negligence claim against the buyer’s attorney, when following the closing, the buyer’s attorney offered to “take care of the filing of the papers.” The attorney’s offer encompassed the filing of a financing statement to give the seller a first lien on the property. The attorney filed the “papers” in the wrong county. This court held that “a gratuitous agent owes his principal the duty to exercise slight diligence, and a proper appraisal of the agent’s conduct encompasses the knowledge which he professes to possess. [Cits.]” Id. at 480. Therefore, we concluded that by gratuitously offering to act for the buyer, the attorney subjected himself to liability for his misfeasance. Id. at (2).

In Kirby v. Chester, 174 Ga. App. 881 (2) (331 SE2d 915) (1985), this court held that a third-party beneficiary to a contract between an attorney and his client can maintain a malpractice action against the attorney. In that case, the attorney knew his client’s lender was relying upon his title search and title certification for assurance that the lender would have sufficient collateral for its real estate loan to his client.

In Tower Fin. Svcs. v. Mapp, 198 Ga. App. 563 (402 SE2d 286) (1991), the surviving wife of a decedent misrepresented that she held title in fee simple to certain property inherited from her deceased husband. Based on her representation, Tower Financial Services (the “lender”) made a loan to her secured by this property and filed its security deed. In fact, the decedent was also survived by three children from a former marriage who acquired an interest in the property securing the loan upon the death of their father, since he died intestate. The children brought an action against the lender, alleging that it had negligently or wrongfully interfered with their interests in the realty. The evidence at trial showed that the lender employed an attorney to conduct a title search but his search failed to disclose the children’s interest in the property. This court noted that while the attorney would have a duty to his client, the lender, to act in a manner to protect its interest as a secured party, it had no duty to the children. Id. at (1).

We find the case sub judice to be distinguishable from our decisions in Simmerson and Kirby in which we held the attorney had a legal duty to third parties in a real estate transaction. In this case, the evidence shows Cox knew that Driebe was hired by Rotomco to close the transaction and that Driebe was not representing Cox’s interests at the closing. In fact, Cox brought his own attorney to the closing. Cox, however, chose to limit the role of his attorney “[t]o read[ing] over the legal documents and mak[ing] sure that whatever was written down was presented properly and the figures, the calculations as far as the closing, taxes and those things protected [his] interest. ...” Driebe made no gratuitous promise to Cox as did the attorney in Simmerson, nor can Cox be considered a third-party beneficiary to the contract between Rotomco and Driebe, as was the lender in our Kirby decision.

Essentially Cox argues that because his interest in the property was known to Driebe, he was in a class of foreseeable persons to whom Driebe owed a duty to act in a reasonable manner. In support of this argument, Cox relies heavily upon the Georgia Supreme Court’s decision in Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982). In Bradley Center, a patient at the Bradley Center (the “hospital”) revealed to the staff of the hospital that he would like to cause bodily harm to his wife. Despite these revelations, the patient was given an unrestricted weekend pass. While exercising this pass, he killed both his wife and her lover. The children of the couple brought a wrongful death action against the hospital alleging their father’s criminal act was foreseeable by the hospital and that their mother’s death was proximately caused by the hospital’s negligence. In recognizing a cause of action against the hospital, the court held that the duty arose “out of the general duty one owes to all the world not to subject them to an unreasonable risk of harm.” Id. at 201. Because the evidence showed that the hospital had reason to anticipate the criminal act, the court held that the requisite duty and breach were shown to subject the hospital to liability.

Cox’s reliance on the Georgia Supreme Court’s decision in Bradley Center is misplaced given the factual distinctions between the cases. Unlike the victim in Bradley Center, Cox should have had at least equal, if not superior, knowledge of how much property he owned and could convey to Rotomco. Driebe could not subject Cox to “an unreasonable risk of harm” by stating that Cox owned more property than he did, when Cox should have been aware of what he owned. Cf. Badische Corp. v. Caylor, 257 Ga. 131 (356 SE2d 198) (1987) (holding a professional owes a duty of care to the limited class of persons that the professional is aware will rely upon the information he prepared). Driebe simply had no reason to believe that Cox would be relying on him to tell Cox what property he owned, therefore, there was no foreseeability of harm.

The trial court erred in concluding that Cox had a cause of action against Driebe under the facts of this case. Cox had no reason to rely on Driebe or to believe that Driebe would be representing his interests at the closing. By not carefully checking the closing documents and by limiting the role of his attorney at the closing, Cox chose to act to his detriment and has no recourse against Driebe. We note that many of our sister states have refused to recognize a cause of action in similar situations. See, e.g., Fox v. Pollack, 226 Cal. Rept. 532 (Cal. App. 1 Dist. 1986); see generally Annotation, What Constitutes Negligence Sufficient to Render Attorney Liable to Person Other than Immediate Client, 61 ALR4th 464 (1988).

2. Our holding in Division 1 makes it unnecessary to consider the Driebe defendants’ remaining enumerations of error.

Judgment reversed.

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

Decided January 31, 1992

Reconsideration denied February 20, 1992

Driebe & Driebe, Charles J. Driebe, Jr., for appellants.

Strauss & Walker, John T. Strauss, Haber & Horne, Joel M. Haber, W. Dan Greer, for appellee.


text:
    A91A2015.
    ARMOUR v. DAVIDSON et al.
    (416 SE2d 92)
   Pope, Judge.

On February 9, 1988, plaintiff/appellant Alonzo S. Armour and his wife went to the City of Fayetteville (the “City”) to register to vote. They originally went to a portion of City Hall where the voter registrar was not located. They were informed that they could not register there and would need to go to another building. Before plaintiff left that building, however, he had a heated argument with defendant/appellee John Davidson, the director of the water and sewer department for the City. The parties dispute the degree of physical contact associated with that altercation, but not that an altercation ensued.

Plaintiff and his wife then went to the proper place to register to vote and were in the process of registering when plaintiff was approached by two City policemen. The policemen arrested plaintiff, without a warrant, on the charge of simple battery against defendant John Davidson. A warrant was presented at the jail for his arrest approximately two hours later. While plaintiff was being booked and fingerprinted, he suffered a heart attack and required hospitalization for his condition. A grand jury considered the simple battery charge against plaintiff and returned a no bill.

Plaintiff brought this action against defendants Davidson and the City pursuant to 42 USC § 1983 contending that the acts of defendants denied plaintiff his statutory and constitutional rights. Defendants filed a motion for summary judgment, which the trial court granted. Plaintiff appeals the trial court’s grant of summary judgment in favor of the City.

1. Plaintiff correctly contends the trial court erred in holding that plaintiff’s action against the City is barred by plaintiff’s failure to give ante litem notice pursuant to OCGA § 36-33-5. The notice provisions of that statute do not apply to actions filed pursuant to 42 USC § 1983. City of Atlanta v. J. A. Jones Constr. Co., 195 Ga. App. 72, 78 (6) (392 SE2d 564), rev’d on other grounds, 260 Ga. 658 (398 SE2d 369) (1990), cert. denied, _ U. S. __ (111 SC 2042, 114 LE2d 126) (1991).

2. We conclude, however, that the trial court correctly granted summary judgment to the City on the basis of sovereign immunity. In Pembaur v. Cincinnati, 475 U. S. 469, 480-483 (106 SC 1292, 89 LE2d 452) (1986), the Supreme Court set forth a three-part test for determining when the acts of a municipal officer subjects a municipality to liability under Section 1983: (1) the municipality officially sanctioned or ordered the act; (2) the actor was a municipal officer with final policy authority; or (3) the action was taken pursuant to a policy adopted by officials responsible under state law for making policy in that area. If none of these theories is satisfied, the municipality may not be held liable pursuant to Section 1983.

While plaintiff’s allegations against the City are vague, it appears that plaintiff alleges the City sanctioned the actions of the police officer making his arrest. In support of its motion for summary judgment, the City submitted the affidavit of its City Manager which stated inter alia that “the City of Fayetteville has adopted a policy for its Police Department based upon the Fourth Amendment to the United States Constitution arrest and detention standard, which provides that no person shall be arrested without a warrant unless the officer has probable cause to believe a criminal offense occurred within his presence or otherwise falls within an exception prescribed by law. This policy is made known to all police officers who are trained in said policy and expected to abide therewith.” In response to the defendants’ motion for summary judgment, plaintiff stated in his affidavit that “it is the policy, custom, usage and regulation of the City of Fayetteville, Georgia, that when a person is arrested without a warrant for their arrest that they are immediately taken to the City Jail of the City of Fayetteville, Georgia and held there awaiting the issuance of an arrest warrant.”

Essentially, plaintiff argues that it is the custom of the City to allow for warrantless arrest and then to detain the arrestee for a period of time until a warrant can be obtained. To meet its burden of showing such a policy, when the municipality has moved for summary judgment on the basis that the City had no such custom or policy, the plaintiff must allege a “series of incidents of unconstitutional conduct suggesting ‘the existence of a widespread practice that . . . constitute [s] a “custom or usage” with the force of law.’ [Cits.]” Jacobs v. Paynter, 727 FSupp. 1212, 1216 (N. D. Ill. 1989) (quoting City of St. Louis v. Praprotnik, 485 U. S. 112 (108 SC 915, 926, 99 LE2d 107) (1988)). The allegations in plaintiff’s affidavit only allege proof of a single incident of errant behavior, which cannot constitute a sufficient basis for imposing liability on the City. Merritt v. County of Los Angeles, 875 F2d 765, 770 (9th Cir. 1989); Tokuhama v. City & County of Honolulu, 751 FSupp. 1385 (10) (D. Hawaii 1989). The City may not be held liable for the negligent acts of a police officer. See OCGA § 36-33-3; City of Cave Spring v. Mason, 252 Ga. 3 (310 SE2d 892) (1984).

Decided January 24, 1992

Reconsideration denied February 20, 1992

John L. Watson, Jr., for appellant.

Mullins, Whalen & Shepherd, Andrew J. Whalen, III, Oliver, Duckworth, Sparger & Winkle, David P. Winkle, for appellees.

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A91A1595.
    WHITE & ASSOCIATES, INC. v. DECKER & HALLMAN, P.C. et al.
    (416 SE2d 352)
   Sognier, Chief Judge.

White & Associates, Inc. (White), a real estate brokerage, brought suit against Decker & Hallman, P.C. (“D & H”) and Coldwell Banker Commercial Group, Inc. alleging it was entitled to recover from D & H commissions due under an exclusive agency agreement and seeking damages from Coldwell for tortiously interfering with its contractual relationship with D & H. In the alternative, White sought from D & H the value of services it allegedly rendered D & H in connection with the execution of a lease of office space. The trial court granted the defendants’ motion for summary judgment, and White appeals.

1. Appellant contends summary judgment was improperly entered for appellees because questions of fact exist whether appellant and appellee D & H entered into an exclusive agency agreement. The record reveals that as the result of a “cold call,” appellant’s assistant vice president, Peter Corry, met with an associate at D & H regarding its search for new office space in late 1987. Corry subsequently showed D & H partner Ed Hallman various available office spaces. Corry deposed that he raised the issue of the contractual relationship between the parties in Hallman’s office in December 1987 and was told by Hallman that because of Corry’s expertise in the markets in which D & H was interested, D & H “would work only with” Corry. The record supports the trial court’s finding that this testimony is the only evidence that the parties agreed to an exclusive agency agreement. It is uncontroverted that D & H did not receive any of the registration letters sent by appellant to leasing offices of the commercial buildings considered by D & H, in which letters appellant informed the various landlords that it was D & H’s exclusive agent.

“The first requirement of the law relative to contracts is that there must be a meeting of the minds of the parties, and mutuality ([cits.]), and in order for the contract to be valid the agreement must ordinarily be expressed plainly and explicitly enough to show what the parties agreed upon. [Cits.] A contract cannot be enforced in any form of action if its terms are incomplete or incomprehensible.” West v. Downer, 218 Ga. 235, 241 (5) (127 SE2d 359) (1962). See Patel v. Gingrey Assoc., 196 Ga. App. 203, 206 (2) (395 SE2d 595) (1990); see also Farmer v. Argenta, 174 Ga. App. 682, 683 (331 SE2d 60) (1985). While a contract will not be held unenforceable for indefiniteness because its performance is, as to particular details, left open to subsequent agreement of the parties, see Advance Security v. Superior Surgical &c. Co., 197 Ga. App. 769, 771 (1) (399 SE2d 488) (1990), extrinsic information “may not be utilized to supply that which is essential to constitute a valid contract. [Cit.]” West, supra at 242. Appellant argues that all the other terms of the exclusive agency agreement, such as the duration of the alleged exclusive agency, the extent of appellant’s duties as agent, and the amount of compensation appellant was to receive for performing these undefined duties, could be inferred from standards in the industry or by standards of reasonableness implied by law, citing Griffith v. Fed. Deposit Ins. Corp., 242 Ga. 367, 368 (249 SE2d 54) (1978). However, not only did appellant fail to adduce evidence regarding the existence and scope of the custom and usage of realty standards, see Georgia Timberlands v. Southern Airway Co., 125 Ga. App. 404, 406 (2) (b) (188 SE2d 108) (1972) (applying predecessor to OCGA § 11-1-205), it is well established that “ ‘[w]here there is no contract, proof of usage will not make one.’ [Cit.]” Newark Fire Ins. Co. v. Smith, 176 Ga. 91, 94 (167 SE 79) (1932). Se also White Lumber Sales v. C. Brinson Lamb &c. Co., 121 Ga. App. 702, 703 (175 SE2d 81) (1970) (although UCC recognizes course of dealing and usage of trade, “there must first be an agreement upon which these factors can be brought to bear”).

“A court will not carry a contract into effect where it is left to ascertain the intention of the parties by mere guess or conjecture. [Cit.]” Hughes v. McMichen, 164 Ga. App. 304, 305 (296 SE2d 233) (1982). Hence, the trial court correctly granted summary judgment in favor of D & H on appellant’s breach of contract claim. See id.

2. Because no enforceable contract was created in December 1987 between appellant and D & H, it follows that the trial court did not err by granting summary judgment in favor of appellee Coldwell Banker on appellant’s claim of tortious interference with that contract. See Shanco Intl., Ltd. v. Digital Controls, 169 Ga. App. 184, 186 (2) (312 SE2d 150) (1983); Charles v. Simmons, 215 Ga. 794, 797 (3) (113 SE2d 604) (1960).

3. Appellant contends the trial court erred by granting D & H’s motion for summary judgment on its claim for compensation based on quantum meruit. The record reveals that after Corry initiated contact with D & H, he and principals of D & H toured 12 different office buildings, including Peachtree Center. D & H was interested primarily in another building, however, and the contact with Peachtree Center did not result in a lease proposal by the parties. When no satisfactory arrangement with the representatives of the other building could be arranged, D & H withdrew from the market and attempted from April to June 1988 to renegotiate its lease with its then landlord. In August 1988, Corry was notified by D & H that his services were no longer needed. D & H then entered into an exclusive agency agreement with Coldwell Banker. In October-November 1988 D & H and Peachtree Center began negotiations that ultimately resulted in the law firm renting space there for which Coldwell Banker received a commission. Appellant adduced no evidence that in consummating the lease contract with Peachtree Center, either appellee benefitted from any of appellant’s previous efforts.

Decided February 20, 1992.

Fortson & White, John A. Howard, Marion Smith II, Ware & Associates, Jay L. Drew, for appellant.

Alston & Bird, William H. Hughes, Jr., A. McCampbell Gibson, for appellees.

Contrary to appellant’s contention, this court has applied the “procuring cause” rule seen typically in the context of real estate sales contracts, see Doyal & Assoc. v. Wilma Southeast, 174 Ga. App. 851, 852 (2) (332 SE2d 24) (1985), to brokers’ claims regarding the execution of lease agreements. Meinhard v. Stillwell Realty Co., 47 Ga. App. 194 (169 SE 732) (1933). Applying that rule here, the evidence of record clearly established that appellant was not the procuring cause of the lease agreement and that appellees did not benefit from appellant’s efforts in procuring that lease. Thus, appellant’s argument that a jury question remains as to its alleged entitlement to a quantum meruit award must also fail. Doyal & Assoc., supra at 852 (3).

Judgment affirmed.

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


text:
    A91A1904.
    LEVINGSTON v. CRABLE et al.
    (416 SE2d 131)
   Sognier, Chief Judge.

Billy Crable and Shirley Crable sought injunctive relief from the Superior Court of Fayette County alleging that Clifford Levingston’s maintenance at his residence of a kennel for his Rottweiler dogs created a nuisance and violated county ordinances and restrictive covenants on the property. Pursuant to negotiations between the parties, the trial court entered an order, denominated “consent order and final judgment granting permanent injunction” (hereinafter “consent order”), on February 27, 1991. A motion filed by Levingston at the subsequent term of court was dismissed by the trial court on the basis that the consent order was a final order divesting the trial court of jurisdiction over the matter. Levingston appeals.

The consent order contained findings of fact and conclusions of law, in which paragraph 8 provided that appellant’s action in building and maintaining the kennel constituted a “potential violation of the Restrictive Covenants running with [appellant’s] land. . . . (Further direction and Order of the Court with respect to this provision will be included below.)” The consent order then expressly set forth that appellees’ petition for permanent injunctive relief was granted, and based thereon appellant was ordered to take six specified acts to comply with the terms of the injunction. Appellant was also ordered in paragraph 12 “to apply to [the Homeowners Association of Northridge Subdivision, hereinafter “NSHA”] for approval to maintain the [kennel] and ‘doggie’ septic tank [“the structures”] presently existing on [appellant’s] property. If it is determined that [these structures] violate the Restrictive Covenants, then, in that event, [appellant] will be required to remove the [structures], or take any other action consistent with the requirements of [NSHA] to bring [the structures] into conformity. Provided, however, that [appellant] may petition or apply to this Court under the terms of this Order or otherwise for relief from any decision of [NSHA]. [Appellant’s] petition or application may assert any and all defenses which [appellant] has, had or may have had with regard to enforcement of the Restrictive Covenants. The filing of such petition or application by [appellant] shall stay any decision of [NSHAJ until a hearing is held and final decision rendered on the petition or application.” (Emphasis supplied.) The consent order then provided in pertinent part that “[t]he provisions of this Final Judgment are binding on [appellant],” that a violation of the order would be punishable by contempt, and that appellant thereby dismissed with prejudice all of his motions pending in the suit.

After NSHA denied appellant’s application to maintain the structures, appellant filed his “motion and petition for relief from and pursuant to consent order” seeking relief from the NSHA decision on the bases that he was not in violation of the restrictive covenants or, if in violation, the enforcement of the covenants was barred by the statute of limitation or laches. Appellant also sought to have the consent order conformed to allow him to maintain the structures.

Appellant contends the trial court erred by finding that the consent order was a final judgment. A judgment is final when it disposes of the entire controversy, leaving nothing for the trial court to do in the case. MARTA v. Federick, 187 Ga. App. 696, 698 (1) (371 SE2d 204) (1988). The effect of a judicial act and not the trial court’s characterization of it determines whether it is a final judgment. See Robert Chuckrow &c. Co. v. Gough, 117 Ga. App. 140, 144 (1) (159 SE2d 469) (1968).

Citing OCGA § 9-11-54 (b), appellant argues first that the consent order was not final because it failed to adjudicate all the claims in the litigation. We do not agree. There was no language in the consent order reflecting it to be anything other than final judgment, compare White v. Lawyers Title Ins. Corp., 197 Ga. App. 780 (399 SE2d 526) (1990) (consent order contained language that “both parties agree that it is not a final order pursuant to OCGA § 9-11-54 (b),” id. at 782 (2)), and the consent order expressly provided that the injunctive relief sought by appellees was granted in its entirety and that all matters raised by appellant were dismissed with prejudice. Compare Ford Motor Credit Co. v. Williams, 194 Ga. App. 405, 406 (1) (390 SE2d 640) (1990) (consent order not final because it did not provide either that action was dismissed or that plaintiff received judgment). Contrary to appellant’s argument, the “[provided, however” language in paragraph 12 of the consent order did not leave for further adjudication any claim as between these parties. Pursuant to that paragraph, appellees’ claim against appellant regarding the restrictive covenants has been concluded because that paragraph established that both appellant and appellees are bound by a properly rendered NSHA decision on that matter. Thus, insofar as appellees’ claim based upon the restrictive covenants is concerned, no issue remained for adjudication. Compare MARTA v. Federick, supra (consent order on no-fault claim not final while tort claim still pending).

Appellant also argues that even if the consent order was a final adjudication of the law, the consent order is comparable to the one in Johnson v. James, 246 Ga. 680 (272 SE2d 692) (1980), in that while final as to certain issues, it remained interlocutory as to the issue of the “mode of execution” of NSHA’s ruling regarding the restrictive covenants so that the trial court retained jurisdiction under the injunctive relief suit to consider that matter. As noted by the Supreme Court in Johnson, “ ‘[a] decree may be partly final and partly interlocutory; final as to its determination of all issues of law and fact and interlocutory as to its mode of execution. . . .’ [Cit.]” Id. at 682.

In Johnson, siblings challenged the right of a deceased sibling’s widow to participate in the partitioning of land inherited from the parents. The trial court entered a consent order establishing that the widow was entitled to a share in the premises. A partitioning of the land was ordered with the trial court “reserving] for a subsequent Order the determination of the fractional interest of each tenant in common.” Id. at 680. The Supreme Court held that the consent order concluded the issue of the widow’s entitlement to share in the partitioning and disallowed the siblings’ new challenge to the widow’s rights raised for the first time in the subsequent hearing on the parties’ fractional interests in the property.

Decided February 20, 1992.

Alagia, Day, Marshall, Mintmire & Chauvin, Roger A. Kirschenbaum, for appellant.

Louis Levenson & Associates, Louis Levenson, for appellees.

Appellant asserts that just as the trial court in Johnson reserved for later determination the fractional interest of the siblings, the trial court in the case sub judice reserved for determination in the injunctive relief suit itself the question of the propriety of any future ruling made by NSHA on appellant’s application regarding the restrictive covenants. We do not agree. The “[provided, however” language in paragraph 12 upon which appellant’s argument is based merely clarified his right to raise a subsequent legal challenge to NSHA’s decision and provided further that if appellant raised such a challenge, the binding effect of the NSHA decision, as finalized in paragraph 12 in the consent order, would be stayed until the challenge had concluded. Compare Hubbert v. Williams, 175 Ga. App. 393, 394-395 (1) (333 SE2d 425) (1985) (consent order authorizing disbursement to secured debt holder of funds paid into court by condemning authority pending trial on fair market value of property was interlocutory order subject to modification). There is nothing in the case sub judice comparable to the express reservation by the trial court in Johnson of an issue vital to the partitioning of the property, i.e., the fractional interest of each tenant. Furthermore, as noted above, no issue remained in the case at bar for the trial court to reserve to itself: the trial court had concluded appellant was bound by a properly rendered decision by NSHA.

Therefore, we find that the trial court properly dismissed appellant’s motion for lack of jurisdiction and note, as did the trial court in its order, that the trial court’s ruling does not preclude appellant from pursuing any other legal recourse that may be available to him.

Judgment affirmed.

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


text:
    A91A1914.
    TESTON v. MILLS.
    (416 SE2d 133)
   Cooper, Judge.

This appeal arises from the trial court’s dismissal of appellant’s timely filed notice of appeal.

Appellant brought an action against appellee for amounts allegedly due under a joint venture agreement. The trial court granted summary judgment to appellee, and appellant timely filed a notice of appeal. In his notice of appeal, appellant stated the following: “There is a transcript of evidence to be filed for inclusion in the record on appeal.” Approximately three months later, appellee filed a motion to dismiss the notice of appeal on the grounds that appellant had made no effort to cause the clerk to prepare the record and that the notice of appeal was filed solely for the purpose of delay. The Clerk of the Superior Court in the county where the action was pending filed an affidavit in which she stated that no appeal costs had been paid, that no transcript of evidence had been filed in the case and that she had delayed transmitting the appeal to the Court of Appeals because she was awaiting the filing of a transcript of evidence as specified in appellant’s notice of appeal. In its order dismissing appellant’s appeal, the trial court found that no transcript existed and that the appeal had been delayed three months because of appellant’s designation of the transcript as part of the record to be transmitted to the Court of Appeals. The trial court further found that appellant’s attorney had made no effort to expedite the appeal since filing the notice of appeal.

“ ‘OCGA § 5-6-42 provides that a transcript must be filed within 30 days after the filing of the notice of appeal unless the time is extended as provided by OCGA § 5-6-39. OCGA § 5-6-48 provides that the trial court may, after notice and hearing, order an appeal dismissed for a party’s failure to timely file a transcript if the delay was 1) unreasonable, 2) inexcusable, and 3) caused by such party.’ [Cit.] ‘In reviewing a finding of unreasonable and inexcusable delay in filing a transcript, this court will not disturb the lower court’s finding absent an abuse of discretion. [Cit.]’ [Cit.]” Hall v. Bussey, 200 Ga. App. 311 (408 SE2d 430) (1991). The trial court found that the appeal was delayed because of appellant’s designation of the transcript to be included as part of the record when there was no transcript and that appellant’s counsel had made no effort to expedite the appeal since filing the notice of appeal. The record indicates that the delay in transmitting the record was due to the designation in the notice of appeal that the transcript be included as part of the record. We find no abuse of discretion in the trial court’s dismissal of the appeal. See also Kennedy v. Savannah News-Press, 122 Ga. App. 175 (176 SE2d 540) (1970) and Abel v. J. H. Harvey Co., 126 Ga. App. 115 (190 SE2d 87) (1972); compare Battallia v. City of Columbus, 199 Ga. App. 897 (1) (406 SE2d 290) (1991).

Decided February 20, 1992.

Grady K. Reddick, for appellant.

Hunter & Hunter, Harry H. Hunter, for appellee.

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A91A1917.
    THE STATE v. MOHAMED.
    (416 SE2d 358)
   Andrews, Judge.

The State appeals the 1991 modification of defendant’s misdemeanor sentence by the court after its entry in 1985, contending that it was an illegal modification.

1. First considering defendant’s motion to dismiss the State’s direct appeal as violative of OCGA § 5-7-1, it is denied. “ ‘Notwithstanding the provisions of OCGA § 5-7-1, the State may appeal directly an illegal judgment. [Cits.]’ State v. Bilal, 192 Ga. App. 185 (384 SE2d 253) (1989).” State v. Smith, 193 Ga. App. 831 (1) (389 SE2d 547) (1989).

2. On October 7, 1985, defendant was sentenced on a guilty plea to 12 months probation for misdemeanor theft by taking. The 1991 Extraordinary Motion for Modification sought nunc pro tunc entry instead of first offender treatment pursuant to OCGA § 42-8-60.

The maximum sentence which may be imposed for a misdemeanor is a $1,000 fine, 12 months imprisonment, or both. OCGA § 17-10-3 (a). Defendant was given a 12 month probated sentence and once service of that sentence began it could not exceed the maximum sentence which could have been imposed. Tenney v. State, 194 Ga. App. 820, 822 (3) (392 SE2d 294) (1990). Once the sentence was served, jurisdiction over the defendant ceased. Strickland v. State, 165 Ga. App. 197, 200 (2) (300 SE2d 537) (1983). The court having no jurisdiction over him or his case, the motion to modify was a nullity as well as the judgment entered purporting to modify the sentence. OCGA § 17-9-4. Additionally, defendant cited no authority for such a motion and we are aware of none. Cf. OCGA § 17-9-61 (motion in arrest of judgment available only for nonamendable defects appearing on the face of the record and only within term in which judgment rendered); Thigpen v. State, 165 Ga. App. 837, 838 (303 SE2d 81) (1983) (after passage of term in which judgment entered, no provision for motion to set aside or vacate sentence in criminal cases).

Therefore, the judgment of June 25, 1991 is a nullity and the court is directed to strike it from the record.

Decided February 20, 1992.

Ralph T. Bowden, Jr., Solicitor, Andrew T. Rogers, W. Cliff Howard, Assistant Solicitors, for appellant.

Christopher G. Knighton, for appellee.

Judgment vacated and case remanded with direction.

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


text:
    A91A2217.
    CARROLL v. THE STATE.
    (416 SE2d 354)
   Andrews, Judge.

Carroll was charged with speeding, driving with license in suspension, driving under the influence and improper passing. He pled guilty to the first two charges and was tried in a bench trial and convicted of driving under the influence and improper passing.

Evidence adduced below established that on November 16, 1990, Carroll was driving 69 mph through a 50 mph zone in Rockdale County when he passed another vehicle in a no-passing zone and was pulled over by Deputy Witcher of the Rockdale County Sheriff’s Department. In response to inquiry, Carroll showed the officer his insurance card and when asked for his license, Carroll admitted that it had been suspended.

While talking to Carroll, Deputy Witcher detected a strong odor of alcohol and asked Carroll if he had been drinking. Carroll admitted that he had consumed several beers and then consented to a field sobriety test. When he was unable to perform these tests satisfactorily, he was placed under arrest for driving under the influence of alcohol, speeding and improper passing. Upon being put under arrest, Carroll was placed in the patrol car and read the implied consent provisions. During the drive to the jail, Deputy Witcher confirmed through a computer check that Carroll’s license had been suspended. The charges against Carroll were then amended to include the charge of driving while license suspended.

In his enumerations of error, Carroll claims that the trial court erred in denying his motion in limine/motion to suppress and in allowing evidence of statements and acts before he was given warnings pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). Further, Carroll argues that in the absence of the illegally obtained evidence there was no probable cause for his arrest for the charge of driving under the influence.

“Only in-custody statements by the accused give rise to the issues of voluntariness and the Miranda warnings. The test for determining whether a person is in custody at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary. Police officers at the scene of a traffic stop may conduct a general on-the-scene investigation, which may even require that persons be temporarily detained, without such being classified as custodial interrogation.” (Citations and punctuation omitted.) Metheny v. State, 197 Ga. App. 882, 884 (400 SE2d 25) (1990).

In an attempt to characterize the traffic stop here as custodial, Carroll argues that he was stopped by the police prior to November 16, 1990 and warned at that time that he would be arrested if he was apprehended again while driving with his license suspended. Because of the information from this previous stop, Carroll claims that from the moment he admitted to Deputy Witcher that his license was suspended, Carroll was aware that he would be arrested. Citing Berkemer v. McCarty, 468 U. S. 420 (104 SC 3138, 82 LE2d 317) (1984), and Hughes v. State, 259 Ga. 227 (378 SE2d 853) (1989), Carroll argues that because he understood that his offense would result in arrest, the traffic stop became a custodial interrogation. Secondly, Carroll argues that the officer had sufficient grounds for arresting him prior to administering the field sobriety tests and that therefore, Miranda warnings were mandated before such tests could be performed.

We note at the outset that the situation here differs significantly from that in Hughes in that here there was no evidence that Deputy Witcher indicated to Carroll in any manner that he was not free to leave, or that the stop would be anything other than temporary. In contrast to Hughes, in the instant situation, Deputy Witcher did not detain Carroll for several minutes while waiting for the arrival of additional officers, but administered the field sobriety test immediately after detecting the alcoholic odor.

Turning to Carroll’s arguments, we find them without merit. First, in its most basic form, Carroll’s argument is that any traffic stop becomes a custodial interrogation if the person stopped is aware that he has committed a crime for which he could be imprisoned. Clearly, this interpretation stretches the reasonable man standard from Berkemer beyond its intended meaning. Additionally, Carroll’s assertion that Deputy Witcher was certain that Carroll’s license was suspended (and that he would be arrested) prior to performing the field sobriety tests is not supported by the record. Although Deputy Witcher testified that he planned on arresting Carroll if the check on the license confirmed that it was suspended, he also testified that he did not perform the computer check on the license until driving to the police station, at which time the charges against Carroll were amended to include the charge of driving with a suspended license.

The trial court’s determination that Carroll was not in custody prior to the time of the officers’ decision to arrest here is not clearly erroneous and will not be disturbed on appeal. See Magher v. State, 199 Ga. App. 508 (405 SE2d 327) (1991); Crum v. State, 194 Ga. App. 271 (390 SE2d 295) (1990); Lipscomb v. State, 188 Ga. App. 322 (372 SE2d 853) (1988).

Decided February 20, 1992.

William Schneider, for appellant.

Nancy N. Bills, Solicitor, for appellee.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A92A0417.
    TEAGUE v. YORK et al.
    (416 SE2d 356)
   McMurray, Presiding Judge.

Plaintiffs, D. L. York and Marjorie Teague York, brought suit against Charles Teague seeking actual and punitive damages for trespass. Defendant answered the complaint and denied liability. Following a trial, the jury rendered a verdict in favor of plaintiffs and against defendant for $10,000 actual damages and $20,000 punitive damages. Defendant moved for a new trial. The motion was denied and defendant appealed. Held:

1. Defendant contends the trial court erred in failing to instruct the jury properly with regard to punitive damages. In this connection, he points out that the trespass took place after the effective date of OCGA § 51-12-5.1 but the trial court did not use the “clear and convincing evidence” language set forth in that statute.

Defendant acknowledges that he did not object to the charge when the trial court asked if he had any objections. Nevertheless, relying upon OCGA § 5-5-24 (c), he asserts he is entitled to enumerate error upon the charge. We disagree.

Prior to the giving of the charge, defendant’s counsel was invited to participate in a charge conference. (Plaintiffs submitted requests to charge. One such charge pertained to punitive damages; it did not contain the “clear and convincing evidence” language set forth in OCGA § 51-12-5.1. Defendant did not submit any requests to charge.) Defendant’s counsel refused the invitation, announcing that he did not “object to any of the charges.” After the charge was given by the trial court, defense counsel was asked if he had any objections to the charge and he said that he did not.

OCGA § 5-5-24 (c) (formerly Code Ann. § 70-207 (c)) refers “only to the failure to make objection to the charge, and not to those instances where the giving of an instruction, or the failure to give an instruction, is induced by counsel for the complaining party during the course of the trial, or specifically acquiesced in by counsel. It is always the duty of counsel, as officers of the court, to aid the trial judge in presenting the issues to the jury, and it should never be their purpose to mislead the judge in any statement made in regard to the issues involved in the case, or the law. [Cits.]” Irvin v. Oliver, 223 Ga. 193, 196 (154 SE2d 217). Accord Brown v. Garcia, 154 Ga. App. 837 (1) (270 SE2d 63).

Decided February 20, 1992.

Baker & Whitaker, Elliott R. Baker, William E. Whitaker, for appellant.

Smith, Eubanks, Smith & Darden, David P. Darden, Hansell L. Smith, Owen M. Holmes IV, for appellees.

The record demonstrates that defendant’s counsel did more than simply fail to object to the charge. By refusing to participate in a proposed charge conference and announcing that he had no objection to the proposed charges, defendant acquiesced in the charge. Brown v. Garcia, 154 Ga. App. 837 (1), supra. It follows that defendant can derive no benefit from OCGA § 5-5-24 (c); he cannot enumerate error upon the trial court’s charge. OCGA § 5-5-24 (a).

2. “A wilful repetition of a trespass gives rise to an action for punitive damages.” Dalon Contracting Co. v. Artman, 101 Ga. App. 828, 829 (4) (115 SE2d 377). See also Barrow v. Ga. Lightweight Aggregate Co., 103 Ga. App. 704, 710 (3) (120 SE2d 636). The evidence was sufficient to support the award for punitive damages in light of evidence that defendant previously trespassed, and made repeated claims upon, plaintiffs’ property. (Defendant had even been enjoined from trespassing upon plaintiffs’ property in previous litigation between the parties. And, despite the fact that defendant executed more than one boundary line agreement recognizing the extent of plaintiffs’ property, defendant continued to deny that plaintiffs had any interest in that property.)

Judgment affirmed.

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