text:
    A02A0515.
    KNIGHTON v. THE STATE.
    (563 SE2d 917)
   Blackburn, Chief Judge.

Following a jury trial, John Knighton appeals his convictions for rape, aggravated assault, aggravated sodomy, possession of a weapon during a crime, and terroristic threats, contending that, because he was not properly informed of his Miranda rights, evidence derived from the search of his home and several self-incriminating statements he made were improperly admitted into evidence. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the record shows that, on the evening of May 26,1998, the victim stopped by an auto parts store where Knighton worked as she was walking to a friend’s house. It was hot that night, and the victim asked Knighton if she could have a glass of water. Knighton took her inside the building, where he lived in several back rooms, gave her water, and pulled a gun on her when she tried to leave. Knighton then held the victim against her will, put handcuffs on her wrists and ankles, and raped her repeatedly for two days. On the second day of her captivity, the victim, still naked and handcuffed, managed to escape through a window into a locked and fenced lot of junked cars adjacent to the auto parts store. There, she climbed on top of one of the cars to avoid being mauled by guard dogs handled by Knighton and screamed for help.

Police arrived at the scene, restrained the guard dogs, and released the victim. Shortly thereafter, Knighton arrived at the scene, and he was immediately approached by Officer William Ricker. Officer Ricker patted Knighton down for weapons, and Knighton spontaneously told Officer Ricker that they would need his keys to get inside the gate. He also told Officer Ricker that if he was not stopped someone would end up getting hurt. Officer Ricker then secured Knighton in the back of his patrol car, but he did not ask Knighton any questions about the victim or the rape.

Officer Ricker next informed Detective Paradise, a member of the sex crimes unit, that Knighton was on the scene, and Detective Paradise got into Officer Ricker’s car and sat in the backseat where Knighton was still detained. Knighton immediately told Detective Paradise, without prompting, that he wanted to get caught and that he had gone too far this time. Detective Paradise then informed Knighton of his Miranda rights. Although she did not read these rights verbatim off of a card, Detective Paradise informed Knighton that she was not his friend, that he was better off if he “shut up” until he could talk to an attorney, that she would use anything he said against him, that he had a right to an attorney, and that, if he could not afford one, one would be provided for him. When Detective Paradise told Knighton that he was entitled to an attorney, he responded that he needed a psychiatrist because he was sick.

Subsequently, Knighton voluntarily led the police into his home, showed them where he had hidden the victim’s clothes, and led them to the rooms where he had held the victim hostage. The victim positively identified Knighton as her assailant both at the scene and in court. The evidence shows that Knighton remained lucid throughout his encounter with the police, and he was not under the influence of either drugs or alcohol.

Knighton now contends that his incriminating statements and the subsequent search were improper and inadmissible because he was not properly informed of his Miranda rights. Knighton’s main contention is that his right to remain silent was not properly explained to him. We disagree.

As an initial matter, the incriminating statements made by Knighton at the scene were not subject to Miranda, as they were voluntarily made and were not in response to interrogation by police.

Decided April 10, 2002.

Henry A. Hibbert, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

Miranda warnings are required to protect a suspect being interrogated in police custody. The State is not required to show that Miranda warnings were given before introducing evidence of a custodial statement which was not obtained through interrogation but was volunteered by the suspect. Accordingly, the issue is whether the custodial statement [s] made by [Knighton] without the benefit of Miranda warnings [were] admissible as . . . volunteered statement [s] or should have been excluded as . . . statement [s] obtained through police interrogation.

(Citations omitted.) Kennedy v. State. As the statements at issue here were blurted out by Knighton before any questioning began, Miranda simply is not applicable to them, and they were properly admitted into evidence.

Moreover, the Miranda warnings which were given to Knighton following these statements were adequate. The transcript shows that, although the police did not use the exact language which Knighton propounds as necessary for his Miranda warnings, he was sufficiently informed of his rights. Specifically, Knighton argues that he was not adequately apprised of his right to remain silent. To the contrary, Detective Paradise went even further in this case, affirmatively warning Knighton not only that he did not have to talk to her, but also that he would be better off saying nothing to her. See generally Osborne v. State.

While Detective Paradise’s warnings were sufficient in this case, we note, however, that the better practice would have been to administer the Miranda warnings by reading them from the Miranda cards carried by most police officers. By doing so, questions such as the ones raised in this appeal may be circumvented.

Judgment affirmed.

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

        Kennedy v. State, 246 Ga. App. 236, 237 (2) (540 SE2d 229) (2000).

        Osborne v. State, 263 Ga. 214 (430 SE2d 576) (1993).


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A02A0568.
    GRIFFIN v. THE STATE.
    (563 SE2d 916)
   Blackburn, Chief Judge.

Cornell Antonio Griffin appeals from the trial court’s order revoking his probation, contending that this order was a nullity because, at the time that the revocation was entered, his probated sentence already had been served in full. For the reasons set forth below, we affirm.

The record shows that, on May 31, 1996, Griffin pled guilty to aggravated battery. Griffin was given a ten-year sentence including one year of incarceration and nine years of probation. On February 23,1999, the trial court entered a special order in which it found that Griffin had violated his probation by failing to report to his probation officer, moving without prior permission, and failing to pay certain court-ordered fines. The special order states:

Having waived his . . . right to a full hearing before this Court, and in lieu of full revocation, the Defendant consents to, and agrees to abide by the amended provisions of his . . . sentence. (1) The Defendant shall pay $150 per month until all fines and [fees] are paid in full. (2) The Defendant shall complete 100 hours of community service work. [(3)] The Defendant shall be placed back on active supervision and shall be supervised as a maximum case for the first six months.

(Emphasis supplied.)

On April 26, 2001, the trial court once again revoked Griffin’s probation for, among other things, committing certain felonies. At this time, the trial court held: “1) The Defendant is to serve 3 years with credit for time served since 09/26/00. 2) The Defendant is to continue on probation.” Griffin subsequently filed a motion to vacate this probation revocation order, contending that: (1) the trial court violated OCGA § 42-8-34.1 by revoking his probation and sentencing him to more than two years in confinement; and (2) he was not on probation at the time of the second revocation order because no explicit term of probation was designated in the trial court’s special order of February 23, 1999.

After considering Griffin’s motion, the trial court vacated its April 26, 2001 probation revocation order, finding that its sentence of three years of incarceration did exceed the maximum of two years set forth in OCGA § 42-8-34.1. Then, following a hearing on September 4, 2001, the trial court rejected Griffin’s argument that his probated sentence had already been fulfilled pursuant to the February 23, 1999 special order, and it once again found that Griffin had violated his probation and sentenced him to serve the balance of his probation in jail. 2It is this ruling which Griffin appeals.

Decided April 10, 2002

Jeffrey M. Gore, Monica T. Myles, for appellant.

David McDade, District Attorney, Pamela D. Brophy, Assistant District Attorney, for appellee.

The outcome of Griffin’s appeal requires scrutiny of the trial court’s February 23, 1999 special order. In construing this order, we must look to the intent expressed in it as written. On its face, this order makes it clear that Griffin’s prior sentence is being revoked only in part, not in full. It also explicitly indicates that Griffin’s prior sentence was being amended and that Griffin agreed to abide by the additional requirements set forth in the order. Furthermore, the special order specifically addressed Griffin’s continuing probation from his original sentence, placing him back on maximum supervision “for the first six months.” The only logical construction of this language is that Griffin’s original sentence, including his probation, continued with the additional conditions set forth in the special order.

Griffin’s argument that the special order is ambiguous and must be construed to mean that his sentence of probation was reduced to six months lacks merit. As discussed above, such a construction forces an illogical construction on the trial court’s special order. Moreover, the cases relied upon by Griffin are distinguishable from this one. In Hulen v. State, Fulp v. State, and Merneigh v. State, the initial order revoking probation in each case explicitly stated that it was revoking probation in full, not in part, and no mention was made in these orders regarding the continuing probation of the defendant. As such, these cases have no application here.

Judgment affirmed.

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

       The balance of Griffin’s probation was less than the two-year maximum.

        Hulen v. State, 207 Ga. App. 465 (428 SE2d 405) (1993).

        Fulp v. State, 217 Ga. App. 603 (458 SE2d 395) (1995).

        Merneigh v. State, 271 Ga. 883 (525 SE2d 362) (2000).


text:
    A01A1980, A01A1981.
    EDWARDS v. EDWARDS (two cases).
    (563 SE2d 888)
   Blackburn, Chief Judge.

In Case No. A01A1980, Donna Maxwell Edwards appeals a judgment denying her motion to vacate an order of incarceration and contempt. She contends that the superior court erred in denying her motion to vacate because she demonstrated her willingness to comply with the terms of the operative order governing child visitation.

In Case No. A01A1981, Donna Maxwell Edwards seeks discretionary review to contest the superior court’s refusal to recognize and accord full faith and credit to a judgment entered by the Supreme Court of the Commonwealth of the Bahamas (“SCCB”) which awarded her sole custody of her minor child. We granted the application to resolve the ongoing conflict between two existing custody orders, one issued in the Bahamas and the other in Georgia. After review, we reverse the superior court’s decision not to recognize the custody order entered in the Bahamas.

These two interrelated, companion appeals are the legacy of a protracted legal battle between Donna Maxwell Edwards (hereinafter “Maxwell”) and John Adam Edwards. For more than nine years, Maxwell and Edwards have continued to litigate their respective rights and obligations as to their minor son. The chronology of this litigation and key events began shortly after Maxwell and Edwards married in June 1990 and their only child, Ryan Maxwell Edwards, was bom on April 26, 1992. A few months after Ryan’s birth, in August 1992, Maxwell filed for divorce. The final judgment and decree awarded Maxwell the sole, permanent legal and physical custody of Ryan and set forth a visitation schedule for Edwards that authorized gradually increasing visits with Ryan. The final judgment was entered on November 10, 1994, in the Superior Court of Fulton County. Nothing in the final judgment purported to preclude Maxwell from moving out of state or to another country. We therefore do not address the appropriateness of any such limitation. In April 1995, she moved with Ryan to the Commonwealth of the Bahamas.

Thereafter, finding himself thwarted in his efforts to exercise his authorized visitation rights with Ryan, in mid-May 1995, Edwards filed a petition for contempt. After a hearing, on June 9, 1995, the trial court found Maxwell in contempt for her “willful and intentional failure to allow [Edwards] to exercise his visitation rights with the minor child of the parties.” Meanwhile, Maxwell continued to live with Ryan in the Bahamas where she worked.

On September 12, 1995, Edwards filed a complaint in the Superior Court of Fulton County to seek custody of Ryan. Maxwell was properly served with that complaint while in Georgia to visit her father. Maxwell, however, did not answer the complaint. Instead, she filed a plea to jurisdiction and a motion to dismiss. Asserting that she was a nonresident, she contended that the court lacked personal and subject matter jurisdiction. The trial court found otherwise.

Relying upon OCGA § 19-9-43 (a) (1) (B), the trial court found that Georgia was the “home state” of the minor child at the time that Edwards filed his complaint to change custody. Finding that Ryan, the minor child, had not lived in the Bahamas for six months prior to when Edwards filed his complaint, the trial court determined that jurisdiction was proper. Maxwell did not appear at the hearing. The trial court entered a finding that Maxwell “refused to comply with visitation provisions of the parties’ Final Judgment and Decree of Divorce and other subsequent visitation orders and was held in Contempt of Court on June 9, 1995, September 25,1995, and February 1, 1996 for refusal to obey visitation orders.” A specific finding was also made that “medical care [in the Bahamas] for the treatment of her son’s serious brain condition is inadequate in comparison to the resources available in Atlanta, Georgia, where Plaintiff resides.” The trial court awarded sole legal and physical custody of Ryan to Edwards on March 25, 1996.

Maxwell applied for discretionary review of the March 1996 change in custody order, arguing that the superior court lacked jurisdiction and that venue was improper. She also contested the finding regarding the caliber of medical care in the Bahamas, and she claimed that the court had improperly considered the guardian ad litem’s recommendation for a change of custody. However, on May 16, 1996, this Court denied Maxwell’s application for review, finding no legal basis for reversing the trial court’s ruling. In declining review, we found that under OCGA § 19-9-43 (a) (1) (B), the trial court had correctly determined that Georgia was the “home state” of Ryan. This Court decided that venue was proper in Fulton County because “her residence remained in Fulton County where she owned a home and which she listed as her permanent residence on several court documents.” Citing Dyer v. Surratt, this Court also upheld the orders finding Maxwell in contempt because we found that she had waived her defense of lack of personal jurisdiction. Subsequently, the Supreme Court of Georgia denied Maxwell’s petition for certiorari.

Unsuccessful in the courts of this State, Maxwell sought relief in the Bahamian judicial system where she ultimately prevailed. Having lived in the Bahamas for about a year, on April 18,1996, Maxwell filed a custody petition in the Bahamas. In her affidavit in support of her petition, Maxwell testified that she would allow Edwards to have access to Ryan in the Bahamas. She attested that “the Respondent applied for and obtained a Custody Order in Georgia at which hearing I did not appear and I was not represented. A copy of this Order is now produced and shown . . . marked as ‘Exhibit DME5.’ This Order seems to imply that the said child cannot obtain proper medical attention in the Bahamas which is not true.”

Edwards filed an answer to Maxwell’s Bahamian suit for custody. While Maxwell’s petition for custody was pending, Edwards submitted an application for assistance under the Hague Convention on the Civil Aspects of Child Abduction to the Bahamian Ministry of Foreign Affairs. A decision on the merits of Maxwell’s petition for custody was delayed pending the outcome of Edwards’ application as required by Article 16 of the Hague Convention. Several months later, Edwards’ application for assistance was refused, primarily because at the time that Maxwell had taken Ryan with her to the Bahamas, she had done so lawfully. In denying Edwards’ application, the SCCB Divorce and Matrimonial Side found that “[t]he rights of custody vested in the husband did not arise until 25th March, 1996. Any application of this Court for wrongful removal or retention under Article 3 [of the Hague Convention] could only be grounded upon acts of the wife after that date. That, of course, is not the basis of this present application.” The Bahamian court also found that in March 1996 when Edwards obtained custody, neither Ryan nor Maxwell had “habitual residence” in Georgia or the United States within the meaning of Article 12 of the Hague Convention. For those reasons, Edwards’ application for assistance was refused.

The Bahamian court then tried Maxwell’s action. In responding to Maxwell’s complaint, Edwards referred that court to the superior court’s findings of contempt. Edwards attested that the Superior Court of Fulton County had awarded custody of Ryan to him and that the custody award had been affirmed by the Court of Appeals of Georgia. Edwards also testified that Maxwell had gone to the Bahamas with Ryan to avoid visitation and that when he attempted to visit Ryan in the Bahamas, “the door was slammed in [my] face.” He provided copies of the court rulings from Georgia.

On March 5, 1997, the SCCB Equity Side awarded Maxwell the sole custody of Ryan and authorized Edwards to have “reasonable supervised access to the said child.”

Armed with certified copies of the Bahamian court orders, Maxwell then attempted to persuade the Superior Court of Fulton County to recognize both decrees. She contended that the custody order from the Bahamas was entitled to “full faith and credit.” She claimed that under OCGA §§ 19-9-53 and 19-9-55 of Georgia’s Uniform Child Custody Jurisdiction Act (“UCCJA”), the Bahamian custody order should be recognized. The trial court found otherwise. The trial court refused to set aside the order awarding custody to Edwards. The trial court noted that “[a]t the time this action commenced Defendant was a Georgia resident and Georgia was the child’s home state. Accordingly, this Court had jurisdiction and properly entered a final award changing custody.” The trial court observed that the SCCB “refused to give credit to the decisions of this Court” and that the SCCB “explicitly refused to give reciprocal treatment to this Court’s prior adjudication on the merits which had been upheld on appeal to the highest court of this State.” The superior court decided that

the SCCB erred in assuming jurisdiction since it was clear that Defendant/Mother sought to modify a custody decree of another state when she, without the consent of the person entitled to custody, had improperly detained the child in the Bahamas and was in multiple violation of the custody decrees of this Court. See OCGA § 19-9-48. Further, the SCCB erred in modifying the 3/25/96 Order to Change Custody since it failed, pursuant to the Parental Kidnapping Prevention Act, to address whether this Court had lost or failed to exercise jurisdiction. See Henderson v. Justice. Additionally, the 2/28/97 Bahamian Order is void on its face under Georgia law for its failure to justify a change in custody. There is no indication that the court found (1) that a change of conditions affecting the welfare of the child existed, nor (2) that the welfare of the child required a modification. See Elders v. Elders; Johnson v. Hubert. In light of the foregoing, and upon the specific finding that to do so would violate public policy of this state, Defendant/Mother’s Motion to Afford Full Faith and Credit is DENIED.

For these reasons, the superior court refused to recognize the Bahamian order changing custody back to Maxwell.

Case No. A01A1980

On November 8, 1999, Maxwell filed a “Motion to Vacate Order of Incarceration and Order of Contempt.” The incarceration order at issue was entered on February 1, 1996, and it directed that Maxwell be “immediately incarcerated” in the event that she presented herself within this State. She was to be held in jail until she agreed to comply with all of the court orders concerning visitation including makeup visitation. In seeking to vacate that order, Maxwell countered that she was “ready and willing to permit the visitation per the Bahamian Order.” Relying upon Easley v. Easley, she argued that her willingness to abide by the Bahamian order brought her substantially into compliance with the trial court’s directives.

Maxwell contends that the trial court erred in denying her motion to vacate for two reasons. First, she claims that she demonstrated her willingness to comply with the operative order concerning visitation. Next, she asserts that the trial court erred by refusing to acknowledge and enforce the orders of the SCCB and to afford full faith and credit to those orders.

Absent an abuse of discretion, this Court will not reverse a trial court’s issuance of an order for civil contempt. Beckham v. O’Brien. Here, none had been shown. “Ordinarily, the proper method for attacking an erroneous court order is to appeal it or to take some measure to persuade the ordering court to reconsider and change it. A person may not simply ignore it; if he does so, he does so at his own peril and must assume the risk of being held in contempt.” Id. at 521. When her appeal of the change of custody order proved unsuccessful, Maxwell ignored it at her own peril.

A civil contempt order that imposes a jail sentence for violation of visitation rights should be conditioned upon compliance with the court’s order. Phillips v. Tittle. Here, the order at issue properly affords Maxwell a choice to comply or, alternatively, to face incarceration. See Turman v. Boleman. Maxwell’s argument that she stands willing to comply with the Bahamian order is of no effect on this issue, since her noncompliance with the scheduled court-ordered visitation occurred before the entry of the Bahamian order in February 1997. The trial court did not err in holding her in contempt for refusing to comply with the Georgia visitation orders. See Roehl v. O’Keefe.

In Ashhurn v. Baker the Supreme Court noted that “[t]he courts of this [SJtate have no extra-territorial jurisdiction, and cannot make the citizens of foreign states amenable to their process, or conclude them by a judgment in personam, without their consent.” (Punctuation omitted.) The Supreme Court determined that personal service over nonresidents is essential and held that “[a]lthough the cases requiring 'personal service’ do not specify that this must be personal service within Georgia, a close inspection of these cases reveals this to be the case.” (Emphasis in original.) Id. Here, the record demonstrates that Maxwell was personally served in Georgia with the applications for contempt that resulted in the two orders she now seeks to contest.

Case No. A01A1981

Presenting several arguments, Maxwell contends that the trial court erred in refusing to recognize the change in custody order issued by the SCCB. Primarily, she claims the superior court misapplied the law.

1. Maxwell contends that in refusing to recognize the foreign judgment, the trial court erroneously relied upon the provisions of the Parental Kidnapping Prevention Act (“PKPA”), 28 USC § 1738A, which does not apply to a judgment issued in the Commonwealth of the Bahamas. We agree. By its plain terms, the PKPA applies to states which the Act defines to mean “a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States.” 28 USC § 1738A (b) (8). The PKPA has no application here because the Commonwealth of the Bahamas is not a “state” within the meaning of this Act. Therefore, the SCCB was not required to determine whether the trial court in this state had lost jurisdiction under the PKPA. Compare Henderson v. Justice, supra at 592 (1) (a state may modify another state’s custody order only if: (1) it has jurisdiction to make the custody determination and (2) the other state no longer has jurisdiction or declines to exercise jurisdiction).

2. Maxwell asserts that in the absence of statutory ambiguity, the superior court was required to recognize the custody order from the SCCB. She claims that the trial court erred by evaluating that order under the purposes espoused in the UCCJA.

The [Hague] Convention on Civil Aspects of International Child Abduction was adopted by the signatory nations in order “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.”

Friedrich v. Friedrich.

The Hague Conventions are binding in Georgia (as in all states) under the Supremacy Clause of the United States Constitution. “All Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land; and Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U. S. Const., Art. VI, Par. 2.

Goldstein v. Goldstein. The federal statute that implements the Hague Convention mandates that: “Full faith and credit shall be accorded by the courts of the States and the courts of the United States to the judgment of any other such court ordering or denying the return of a child, pursuant to the [Hague] Convention, in an action brought under this Act.” 42 USC § 11603 (g). Thus, the superior court as well as this Court must give recognition to the order from the SCCB denying Edwards’ application for assistance. Therefore, the detailed, ten-page order entered by the SCCB on Edwards’ application for assistance is entitled to full faith and credit under 42 USC § 11603 (g).

In that order, the SCCB set forth a “recital of this unfortunate tale” and unequivocally demonstrated that the SCCB was acutely aware of the parties’ embittered battle and bickering over visitation, access, and maintenance. In the order refusing Edwards’ application for assistance under the Hague Convention, the SCCB chronicled the major events in the litigation. Acting Justice Michael Barnett, the decision’s author, noted, “I am aware of the findings of the Georgia Courts on the question of residence but, with respect, I do not find them of assistance as those courts were not considering the question or issue I have to consider as to habitual residence under the Hague Convention.” No evidence showed that “habitual residence” under the Hague Convention shares the same meaning as “home state” under the UCCJA. Edwards did not appeal the SCCB’s decision.

Although treaty obligations and federal law require the superior court as well as this Court to recognize the order refusing the application for assistance, a similar obligation did not arise under the Hague Convention as to the custody order since the treaty governs the return of children and does not purport to resolve custody conflicts. See 42 USC § 11601 et seq., International Child Abduction Remedies Act.

3. Maxwell contends that the trial court erred by declining to recognize the change in custody order of the SCCB. She claims that under the provisions of former OCGA § 19-9-53, the superior court was obligated to recognize, enforce, and afford full faith and credit to the Bahamian custody order. She argues that the superior court erred in declaring the custody order “void” based on the SCCB’s failure to utilize the standards that a Georgia court would have used.

For purposes of the UCCJA, the Commonwealth of the Bahamas constitutes a “state” as defined by OCGA § 19-9-42 (10). As codified under the UCCJA,

[t]he general policies of this article extend to the international area. The provisions of this article relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations, if reasonable notice and opportunity to be heard were given to all affected persons.

OCGA § 19-9-63. The record shows that these requirements were met.

First, we consider whether the SCCB properly assumed jurisdiction of this child custody dispute under statutory provisions substantially in accordance with the UCCJA. See Youmans v. Youmans.

The jurisdictional standards of the UCCJA are set out in § 74-504. In essence, § 74-504 (a) [OCGA § 19-9-43 for purposes herein] establishes “home state” jurisdiction, “significant connection” jurisdiction, “emergency” jurisdiction, and “appropriate forum” jurisdiction;. . . and § 74-506 (d) states that notice is not required if a person submits to the jurisdiction of the court.

Id. Here, the record shows that when the SCCB assumed jurisdiction over this child custody dispute, it did so in conformance with the jurisdictional standards established in OCGA § 19-9-43 (a) (1) (A) and (2) of the UCCJA. The Commonwealth of the Bahamas was the “home state” of the minor child at the time that Maxwell commenced the custody proceeding in April 1996. See OCGA § 19-9-43 (a) (1) (A). Moreover, the evidence supported a finding that it was in the child’s best interest for the SCCB to assume jurisdiction since he had “significant connection” with that forum and “substantial evidence” was available “concerning the child’s present or future care, protection, training, and personal relationships.” OCGA § 19-9-43 (a) (2) (B).

To support her petition for custody, Maxwell testified that Ryan had lived exclusively and continuously with her from June 1992 to the present. She described the ties that Ryan had established with his school, teachers, playmates, close friends, church, and Sunday school teacher. She described herself as “pleased” with her child’s medical care and noted that Ryan’s primary care physician was the Chief of Pediatrics at the Princess Margaret Hospital. Maxwell also testified that she was afraid that Edwards would retaliate “[b]ased on his temper and violent behaviour.” Maxwell testified that during a visit to the Bahamas, Edwards had criticized Ryan’s speech and had called the child a “mute” and had told him that “he had a wicked mother who [had] kidnapped him.” She further testified that Edwards had upset Ryan by telling him that “he would be taking him home next week, but that his mother would be in gaol [sic] behind steel bars” and that “he had more money than I ever would have and that he would keep me in court for the next twenty years.” Maxwell alluded to a notation allegedly made in a 1994 report by the guardian ad litem that Edwards had admitted using illegal drugs and had entered a plea to the criminal charge of reckless conduct with a firearm. The record supports a finding that, from the child’s perspective, his “home state” was the Commonwealth of the Bahamas where he lived continuously since he was not quite three years of age and where his friends, school, church, and medical providers are located. See generally Mock v. Mock (under Georgia law, custody must ultimately be decided based on the best interest of the child).

Without question, Edwards had notice and an opportunity to respond to the proceedings. In fact, a letter from his Bahamian counsel indicates that Edwards responded to the custody proceeding there and, in fact, participated in that proceeding for a time. Jeanne I. Thompson, Maxwell’s attorney, testified that at a hearing, counsel for Edwards had informed the SCCB that Edwards would be making a cross application for custody. The record further shows that Edwards appeared in person before the SCCB in August and September 1996. And, despite the SCCB’s rescheduling of the final hearing on the custody petition to ensure his presence, Edwards voluntarily declined to appear before that court either in person or through counsel. See Knothe v. Rose (defendant’s failure to properly respond to complaint and summons did not preclude entry of adverse judgment in another country). Under similar facts, this Court found that the trial court abused its discretion by refusing to domesticate a West German judgment. Id. The UCCJA requires recognition of foreign decrees in that: “The courts of this state shall recognize and enforce an initial or modification decree which was made by a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this article.” OCGA § 19-9-53. Since the SCCB assumed jurisdiction substantially in accordance with the UCCJA, under the terms of former OCGA § 19-9-53, the superior court was required to recognize and enforce the Bahamian custody order.

This result is not inconsistent with the Hague Convention which expressly crafts out an exception even to requiring the return of a child wrongfully removed, when “it is demonstrated that the child is now settled in its new environment.” Article 12 of the Hague Convention. The focal point of analysis is the “habitual residence” of the child, not his parents. See Feder v. Evans-Feder. Although the Hague Convention does not define “habitual residence” or provide a structure for resolving disputes about legal custody on the merits, it presumes that such disputes are properly resolved in the country of the child’s habitual residence. Currier v. Currier. After the SCCB denied Edwards’ application for assistance and found that Ryan had not been wrongfully removed from this State, the SCCB could properly entertain the custody petition without running afoul of the Hague Convention. See Friedrich v. Friedrich, supra at 1402. The overwhelming and undisputed evidence showed that the Commonwealth of the Bahamas was the country of the child’s habitual residence at the time that the SCCB considered the custody issue. The child’s social, educational, familial, religious, and medical ties were indisputably in the Commonwealth.

A child is not a pawn to be deployed in legal maneuvers between warring parents. While we disapprove of the tactics and manipulations used by both parents over the last nine years, Edwards cites no law and we have found none that precluded Maxwell from availing herself of the judicial system of the Commonwealth of the Bahamas where she and Ryan apparently continue to legally reside. Therefore, in these most unusual circumstances, we find that under the fundamental principles of international law and comity and also under OCGA § 19-9-53 of the UCCJA, the superior court erred in refusing to domesticate the custody order issued by the SCCB, the terms of which would take priority over the conflicting terms of the previous Georgia order which awarded custody of Ryan to Edwards. Knothe v. Rose, supra at 10.

As a final matter, we recognize that the SCCB apparently considered or was apprised of certain evidence of misconduct and violence in which Edwards allegedly engaged prior to and while visiting the Bahamas. Included in the appellate record are copies of three outstanding arrest warrants against Edwards for “attempt to steal a child” and a warrant alleging that Edwards “did Intentionally and Unlawfully Cause Grevious [sic] Harm to Donna Lynn Maxwell Contrary to Section 271 of the Penal Code, Ch 77.” According to Maxwell’s uncontradicted testimony, on October 8, 1998, “John Edwards forcibly and with violence broke into my residence in the Bahamas for the purpose of kidnaping Ryan Maxwell.” She testified that “[t]he October 1998 attack by John Edwards was committed at my home, and in the presence of my son, Ryan Maxwell. Ryan was traumatized by the attack. I was hospitalized. A true and correct copy of the medical report reflecting the injuries which I received is attached hereto.” She also testified that the Commonwealth had instituted formal extradition proceedings for Edwards’ return to face pending criminal charges. Notwithstanding our holding that Maxwell must fully comply with the trial court’s directives and purge herself of contempt or face the sanction of immediate incarceration, we recognize the potential for problems in accommodating Edwards’ visitation rights. Therefore, in supervising this visitation, we direct the trial court to carefully consider the child’s safety as well as that of his mother in light of the testimony and evidence pertaining to Edwards’ purported use of violence. See OCGA § 19-9-3 (a) (3). The unfortunate states in which the parties find themselves are largely the result of their animosity and conduct toward each other. It is hoped that the best interest of the child becomes the most important consideration to these individuals.

Judgment affirmed in Case No. A01A1980. Judgment reversed in Case No. A01A1981 and case remanded with direction.

Pope, P. J., and Mikell, J., concur.

Decided March 27, 2002

Reconsideration denied April 11, 2002

George B. Spears, for appellant.

Thompson, Fox, Chandler, Homans & Hicks, Robert L. Chandler, for appellee.

       A final consent order and judgment filed on April 24, 1995, required Maxwell to contact Edwards’ attorney in the event that she changed her residence. Maxwell complied with this requirement.

        Dyer v. Surratt, 266 Ga. 220, 222 (4) (466 SE2d 584) (1996).

       For some period, Ryan was apparently under a medical restriction relating to air travel. He had a temporal arachoid cyst and underwent brain surgery on three occasions.

        Henderson v. Justice, 223 Ga. App. 591 (478 SE2d 434) (1996).

        Elders v. Elders, 206 Ga. 297 (57 SE2d 83) (1950).

        Johnson v. Hubert, 175 Ga. App. 169, 170 (1) (333 SE2d 21) (1985).

        Easley v. Easley, 238 Ga. 180, 181 (231 SE2d 763) (1977).

        Beckham v. O’Brien, 176 Ga. App. 518, 522 (336 SE2d 375) (1985).

        Phillips v. Tittle, 261 Ga. 820, 821 (411 SE2d 871) (1992).

        Turman v. Boleman, 235 Ga. App. 243, 245 (510 SE2d 532) (1998).

        Roehl v. O’Keefe, 243 Ga. 696, 697 (1) (256 SE2d 375) (1979).

        Ashburn v. Baker, 256 Ga. 507, 509 (2) (350 SE2d 437) (1986).

       In an order entered on September 25, 1995, the trial court found that
      Defendant/Mother was served personally on September 13, 1995, at 4827 Dean Lane, Lilbum, Georgia, with the Rule Nisi and Restraining Order dated September 12, 1995, the Motion for Immediate Visitation filed September 12, 1995, the Petition for Contempt filed May 17, 1995, the Petition for Contempt filed September 12, 1995, the Petition for Change of Custody, the order holding Donna Maxwell Edwards in Contempt of Court dated June 9,1995, and Orders Appointing Process Server to serve same.

        Friedrich v. Friedrich, 983 F2d 1396, 1399-1400 (II) (6th Cir. 1993).

        Goldstein v. Goldstein, 229 Ga. App. 862, 865 (2) (b) (494 SE2d 745) (1997).

       Effective July 1, 2001, the “Uniform Child Custody Jurisdiction Act” was replaced by the “Uniform Child Custody Jurisdiction and Enforcement Act.” OCGA § 19-9-40. Nevertheless, “[a] motion or other request for relief made in a child custody proceeding or to enforce a child custody determination which was commenced before July 1, 2001, is governed by the law in effect at the time the motion or other request was made.” OCGA § 19-9-102.

        Youmans v. Youmans, 247 Ga. 529, 532 (276 SE2d 837) (1981).

        Mock v. Mock, 258 Ga. 407 (369 SE2d 255) (1988).

       By letter dated November 19, 1996, Edwards’ counsel advised that “[u]nfortunately we have not been further instructed on the matter of The Guardianship and Custody of Infant Act, Chapter 118 of The Revised Laws of the Commonwealth of The Bahamas 1982. On our last meeting with Mr. Edwards, he instructed us not to represent his interests on this until further notice.”

        Knothe v. Rose, 195 Ga. App. 7, 10 (392 SE2d 570) (1990).

        Feder v. Evans-Feder, 63 F3d 217, 222-223 (3rd Cir. 1995).

        Currier v. Currier, 845 FSupp. 916, 920 (D. N.H. 1994).

       Ryan’s grandparents also were living in the Bahamas.


author: Mikell, Judge.

text:
    A02A0019.
    STATE PERSONNEL BOARD et al. v. McCORMICK.
    (564 SE2d 20)
   Mikell, Judge.

Ralph McCormick was terminated from his employment as a corrections officer with Ware State Prison based on evidence that he engaged in prohibited personal dealings with inmates by supplying them with sample cans of smokeless tobacco. The State Personnel Board (“board”) upheld the termination. However, the superior court reversed, ruling that the administrative law judge’s (“ALJ”) initial factual findings were based upon inadmissible hearsay. We granted the application for discretionary appeal filed by the board and the Georgia Department of Corrections (“department”), and we reverse the superior court’s decision.

“Viewed in a light most favorable to the department, the prevailing party before the board, and with every presumption in favor of the board’s decision indulged,” the evidence reveals that on May 22, 1998, a cache of 70 cans of tobacco was found during a “shakedown” of the prison’s fabrication shop. Warden Ronald Fountain testified that he ordered the shakedown based on information supplied by corrections officer Wayne Stone. According to the warden, Stone called him the previous day and asked for a meeting. Because Stone sounded agitated, the warden asked Steve Roberts, the Deputy Warden of Security, to attend the meeting.

Fountain and Roberts each testified that when Stone arrived, he said he wanted no part of what was going on in the shop and was afraid of losing his job. Stone expressed concern that McCormick was trying to set him up by asking him to open a prison gate so that the inmates could bring in tobacco. Stone told his superiors where the contraband was hidden and asked the warden to order a shakedown so that it would not appear that Stone was a “snitch.” In addition, Roberts testified that Stone said that McCormick had brought tobacco into the shop on prior occasions. The tobacco was found exactly where Stone said it would be located.

When questioned initially about the meeting, Stone testified that he told Fountain and Roberts that he did not know who brought in the tobacco. Stone was recalled after Fountain and Roberts testified. When the ALJ asked Stone whether he recalled telling the warden that McCormick was responsible for bringing in the tobacco, Stone replied that he had only relayed what an inmate, Tony Chelew-ski, had told him. Chelewski, who worked in the shop, testified that McCormick had opened the gate and asked Chelewski to carry in a box of tobacco. Chelewski did as he was asked, and he and other inmates, including Tracy Matthews, took some of the cans. Matthews testified that McCormick had told him that the tobacco was at the gate. Matthews said he wanted to bring in the box, but Chelewski beat him to the task.

Based in part on the fact that after Stone met with Fountain and Roberts, the tobacco was found in the exact location where Stone said it would be hidden, the ALJ concluded that Fountain and Roberts’s account of the meeting was more credible than the version testified to by Stone. The ALJ also concluded that the inmates’ testimony corroborated the account of McCormick’s involvement that Stone had relayed to Fountain and Roberts during their meeting. The ALJ thus upheld the termination of McCormick’s employment.

1. In reversing the board’s affirmance of the ALJ’s decision, the superior court apparently concluded that the testimony of Fountain And Roberts as to what Stone said during their meeting was inadmissible under any exception to the rule against hearsay. That ruling is incorrect. OCGA § 24-3-2 provides: “When, in a legal investigation, information, conversations . . . and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” In this case, the testimony relaying Stone’s statements explained the warden’s conduct in ordering a shakedown of the fabrication shop. As such, it was admissible as original evidence.

2. The superior court additionally erred in that it failed to apply the correct standard of judicial review. OCGA § 45-20-9 (m) provides that the court “shall not substitute its judgment for that of the board as to the weight of the evidence on questions of fact.” This statute has been interpreted to mean that the court must affirm the board’s decision if there is any evidence to support it. In this case, the court apparently disregarded the testimony of inmates Chelewski and Matthews in determining that no probative evidence supported the board’s decision.

Decided March 12, 2002

Reconsideration denied April 11, 2002.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Bryan K. Webb, Senior Assistant Attorney General, for appellants.

Sandra L. Michaels, for appellee.

The board is the sole judge of the evidence, of the credibility of the witnesses, and as to what evidence it will credit as the basis for an award. While the hearing officer and the board may choose to believe or disbelieve certain testimony, the superior court, when sitting as an appellate body, is not authorized to substitute its judgment as to the weight and credibility of the witnesses.

The board found the inmates’ testimony credible. The superior court was not authorized to substitute its judgment for that of the board with respect to the credibility of these witnesses. As there is evidence to support the board’s decision, the superior court erred in reversing it.

Judgment reversed.

Andrews, P. J, and Phipps, J., concur.

       (Citations and punctuation omitted.) Dept. of Corrections v. Shaw, 217 Ga. App. 33 (456 SE2d 628) (1995).

        Copeland v. State, 228 Ga. App. 734, 737 (2) (492 SE2d 723) (1997).

        Dept. of Corrections v. Shaw, supra at 34 (1).

       (Citations and punctuation omitted.) Id. at 34-35 (1).


author: Ellington, Judge.

text:
    A02A0443.
    JONES v. THE STATE.
    (564 SE2d 220)
   Ellington, Judge.

A Gwinnett County jury convicted Timothy Jones of sale of cocaine on March 9, 1999, ánd possession of cocaine with intent to distribute on March 22, 1999. OCGA § 16-13-30 (b). On appeal from the denial of his motion for new trial, he contends the trial court erred in admitting similar transaction evidence, denying his motion for a directed verdict based upon equal access, denying his motion to suppress certain evidence, and denying his motion to sever. He also claims ineffective assistance of counsel, excessively severe sentences, and insufficiency of the evidence. For the following reasons, we affirm.

Viewed in the light most favorable to the verdict, the record shows that, on March 9, 1999, a police officer conducted a controlled buy at a Gwinnett County house using a confidential informant (“Cl”). The Cl drove to the house with an undercover officer as a passenger. When they arrived at the house, Jones was on the front porch. The informant walked up to the porch and talked to Jones. When the Cl asked for crack cocaine, Jones told her to drive a short way to the end of the cul-de-sac. Jones went into the house and then walked to the car. He gave the officer and Cl several rocks of crack cocaine in exchange for $50. Jones told them to be careful because it is “hot around here.”

Police officers executed a search warrant for the house on March 22, 1999. The evidence showed that, during the two weeks between the sale of cocaine and the execution of the warrant, Jones stayed overnight at the house the majority of the time. At least three other individuals also stayed at the house. The record does not show, however, who owned the house or whether anyone was renting it. When police executed the warrant, Jones was in the kitchen. During the search, the officers found cocaine in a bedroom and underneath a concrete block behind a shed in the backyard.

1. Jones argues that the trial court erred in admitting similar transaction evidence. After the State filed notice of its intention to present such evidence pursuant to Uniform Superior Court Rule 31.3 (A), Jones moved to exclude the evidence. Following a hearing, the court found the evidence admissible to show motive and course of conduct. Thereafter, Jones requested a limiting instruction, and one was given immediately before the trial testimony regarding the similar transaction and again immediately before the jury’s deliberation. Jones failed to object to the similar transaction testimony at trial. As our Supreme Court stated in Young v. State, 269 Ga. 478, 479 (3) (499 SE2d 60) (1998), “[e]ven though [the defendant] objected to the introduction of the similar transaction evidence at the hearing conducted pursuant to Uniform Superior Court Rule 31.3 (B), he was required to object... at trial in order to preserve the issue on appeal.” (Citation omitted.) See also Jenkins v. State, 253 Ga. App. 8 (2) (557 SE2d 470) (2001). Accordingly, like the appellants in Young and Jenkins, Jones has waived this issue for appeal.

2. Jones contends the trial court erred in denying his motion for a directed verdict as to Count 2 of the accusation, possession of cocaine with intent to distribute. He argues that others had equal access to the cocaine found on the premises. Jones’ reliance on the equal access doctrine is misplaced.

When the State presents evidence that the defendant owned or controlled the premises where the contraband was found, a rebuttable presumption arises that the defendant possessed the contraband. See Sears v. State, 244 Ga. App. 718-719 (536 SE2d 605) (2000); Love v. State, 227 Ga. App. 772, 773 (490 SE2d 527) (1997). The equal access rule entitles a defendant to acquittal where the only evidence of possession is the defendant’s ownership or control over the premises, and the defendant can show that others recently had access to the premises. See Nation v. State, 252 Ga. App. 620, 624 (5) (556 SE2d 196) (2001); Washington v. State, 253 Ga. App. 611, 613-614 (1) (560 SE2d 80) (2002). “It is simply a defense available to the accused to whom a presumption of possession flows.” (Punctuation and footnote omitted.) Nation v. State, 252 Ga. App. at 624 (5). In this case, however, the State did not show who leased the house or had exclusive control over it. Accordingly, no presumption of ownership arose, and the equal access defense was not available to Jones. Id.; Washington v. State, 253 Ga. App. at 614 (1).

Further, the trial court instructed the jury on sole, joint, actual, and constructive possession, party to a crime, and mere presence. The totality of the evidence presented at trial was sufficient to prove that Jones was in joint, constructive possession of the cocaine, so Jones was not entitled to a directed verdict on the possession with intent charge.

3. Jones argues that the trial court erred in denying his motion to suppress the cocaine found underneath a concrete block behind the backyard shed. During the motion hearing, Jones argued that there was no evidence the shed belonged to the owners of the house and, therefore, was not subject to search under the warrant. The officer executing the warrant testified at the hearing that he was not certain the shed actually belonged to the house, but that police had been notified that the residents were selling drugs from the shed and several neighbors had complained about drug-related “foot traffic” in the backyard. The officer testified at trial that there was a worn path from the house to the shed. The trial court denied the motion to suppress, finding that the search warrant was supported by probable cause and the search was properly extended to the curtilage, which included the shed.

Although it appears that Jones effectively abandoned his curti-lage argument at trial, the trial court did rule on Jones’ argument in its denial of the motion for new trial. The trial court specifically found that the shed was located within the curtilage, in the backyard approximately 25-30 feet from the back of the house and ruled as follows:

“Curtilage” includes the yards and grounds of a particular address, its gardens, barns, buildings, etc. Whether the place searched is within the curtilage is to be determined from the facts, including its proximity or annexation to the dwelling, its inclusion within the general enclosure surrounding the dwelling, and its use and enjoyment as an adjunct to the domestic economy of the family. . . . The Court finds that the police did not exceed the scope of the search warrant and the evidence supports the finding that the shed was in the proximity and curtilage of the subject property.

In reviewing the trial court’s ruling on a motion to suppress, this Court construes the evidence in support of the ruling and will affirm the trial court’s order if there is any evidence to support it. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). Having so viewed the evidence, we find no error in the trial court’s ruling.

4. Jones contends the trial court erred in denying his motion to sever. As we recently stated in Shelton v. State, 252 Ga. App. 444, 447 (2) (556 SE2d 540) (2001), however, “a trial court may join offenses for trial if the offenses are based on the same conduct, on a series of connected acts, or on a series of acts constituting parts of a single scheme or plan. The determination whether to grant or deny a motion to sever the trial of separate criminal offenses is within the discretion of the trial court.” (Citations and punctuation omitted.) In this case, the first offense involved Jones’ sale of cocaine from the house where cocaine was discovered less than two weeks later. Additionally, the sale provided the basis of the search warrant, the execution of which resulted in the possession with intent charge.

Jones contends that the second incident involved “complex concepts of law” having to do with issues of joint, sole, actual, and constructive possession and of equal access. It is true that this is a factor to be considered: “the test ... is whether, in light of the number of offenses charged and the complexity of the evidence, the fact-trier will be able to distinguish the evidence and apply the law intelligently to each offense.” (Citation and punctuation omitted.) Hayes v. State, 249 Ga. App. 857, 861 (2) (549 SE2d 813) (2001). Here, however, only two offenses were charged, which occurred within a two-week period. In denying the motion to sever, the trial court found that “the evidence supporting [the charges] is not complex and would not pose a risk of confusing the jury.” As the court found in its order denying Jones’ motion for a new trial, “the facts show a continuing course of conduct of defendant’s activities at or near [the house].” Having reviewed the record, we find no error in the trial court’s conclusion that the jury was able to distinguish the evidence and apply the law intelligently as to each of the charges.

5. Jones next argues ineffectiveness of counsel. Neither his original motion for new trial nor his amended motion, which was filed by new counsel, raises this point, however, nor was it argued during the hearing on the motion. “An ineffectiveness claim must be asserted at the earliest practicable moment and before appeal when the opportunity to raise such claim is available. The failure to do so results in a waiver of that issue.” (Citation omitted.) Parks v. State, 246 Ga. App. 888, 890 (2) (543 SE2d 39) (2000). Accordingly, this enumeration was not preserved for our review.

6. Jones contends that his sentences are excessive in light of the crimes committed. After recognizing that Jones had previous drug convictions, the trial court sentenced Jones to life imprisonment on Count 1 and to 15 years of probation on Count 2. Neither sentence exceeds the permissible maximum for that offense. See OCGA § 16-13-30 (d). “Where the sentences imposed are within the statutory limits, as they are here, they are not unconstitutional. Any complaints regarding the severity should have been addressed to the appropriate sentence review panel.” (Citations and punctuation omitted.) Schwindler v. State, 254 Ga. App. 579, 589 (12) (563 SE2d 154) (2002).

7. Finally, Jones argues that the evidence was insufficient to support the jury’s verdict.

When reviewing a conviction, this Court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). . . . “[I]t is the function of the jury, and not this Court, to resolve conflicts in the evidence. This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Citation and punctuation omitted.) Kapua v. State, 228 Ga. App. 193, 195 (491 SE2d 387) (1997).

Holzendorf v. State, 235 Ga. App. 462, 463-464 (509 SE2d 737) (1998).

As to Count 1, an officer testified that he witnessed Jones selling crack cocaine to a Cl. Likewise, as to Count 2, the evidence showed that Jones was in joint, constructive possession of crack cocaine packaged in “little pieces” for distribution. Accordingly, there was sufficient competent evidence to prove beyond a reasonable doubt that Jones committed the crimes as charged. Holzendorf v. State, 235 Ga. App. at 464.

Decided April 11, 2002

Christine A. Koehler, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.

        Holzendorf v. State, 235 Ga. App. 462, 463 (509 SE2d 737) (1998).

       When Jones objected to the admission of the cocaine at trial, his only objection was on chain of custody grounds. Accordingly, the curtilage argument could be deemed waived. See Thomas v. State, 253 Ga. App. 866, 869-870 (2) (560 SE2d 745) (2002).


author: Miller, Judge.

text:
    A02A0626.
    HAWKINS v. THE STATE.
    (563 SE2d 926)
   Miller, Judge.

Convicted of rape, Charles Hawkins appeals. In his sole enumeration of error, Hawkins contends that the evidence was insufficient to sustain his conviction. We affirm.

On appeal we view the evidence in the light most favorable to the verdict, the appellant no longer enjoys the presumption of innocence, and we only determine the sufficiency of the evidence and neither weigh the evidence nor judge the credibility of the witnesses. Evans v. State, 250 Ga. App. 70, 71 (1) (550 SE2d 118) (2001).

Viewed in this light, the evidence showed that around 10:00 p.m., the victim locked the door to her place of business and proceeded to her car, when she saw a man charging toward her. The victim attempted to get into her car, but the man pulled her out and put his hand over her mouth. The victim then bit the man on his right hand. The man put his arm around the victim’s neck, choking her, and pounded her in the face until the victim passed out. When the victim came to, she realized that she was facedown, the man was on top of her, and that he had penetrated her vagina with his penis.

Although initially the only feature the victim could remember of her attacker was his bulging eyes and his race, she later recalled the man’s face as he charged at her. The victim looked at several police photos to see if she could identify her attacker. A couple of days later, the victim identified Hawkins as the man who attacked her.

Hawkins argues that there was no direct evidence linking him to the crime. We disagree. A person commits the crime of rape when he has carnal knowledge (any penetration of the female sex organ by the male sex organ) of a female forcibly against her will. OCGA § 16-6-1 (a). In this case, although the victim could not initially remember what her attacker looked like other than his bulging eyes, she later identified him both from police photos and at trial. This is direct evidence linking Hawkins to the crime, and the credibility of the victim is solely a matter to be resolved by the jury. Troutman v. State, 191 Ga. App. 243, 244 (1) (381 SE2d 409) (1989). Thus, the evidence was sufficient to sustain Hawkins’s conviction.

Decided April 11, 2002.

Jerry W. Moncus, for appellant.

Kermit N. McManus, District Attorney, Mark P. Higgins, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, C. J., and Johnson, P. J., concur.


text:
    A02A0722.
    MANN v. THE STATE.
    (563 SE2d 924)
   Blackburn, Chief Judge.

Following a jury trial, Rafael Mann appeals his convictions for armed robbery, kidnapping, aggravated assault, and possession of a firearm by a convicted felon, contending that the evidence was insufficient to support the verdict. For the reasons set forth below, we affirm.

On appeal, we view the evidence in a light most favorable to the verdict, and an appellant no longer enjoys a presumption of innocence. This [C]ourt determines whether the evidence is sufficient under the standard of Jackson v. Virginia and does not weigh the evidence or determine witness credibility. Conflicts in the evidence are for the jury to resolve.

(Citations omitted.) Payne v. State.

Viewed in this light, the evidence shows that, on the evening of July 18, 1999, two gunmen robbed a certain Wendy’s restaurant. The store manager, Harper, immediately recognized Mann as one of the gunmen because Mann had worked for him at the restaurant in the past and was also a regular customer. Although Mann was wearing a hat and had something covering his mouth, Harper nonetheless recognized him by observing the exposed portions of his face as well as his characteristic gait and posture. Mann demanded that Harper open the store safe, and when Harper did not comply quickly enough, Mann began kicking him and struck him in the head with his gun. Subsequently, Harper opened the safe and handed Mann approximately $1,800. Mann and his cohort then fled the store.

Decided April 11, 2002.

Cuvo, Pass & Scherma, Victor A. Cuvo, for appellant.

J. Tom Morgan, District Attorney, Anne M. Long, Jeanne M. Canavan, Assistant District Attorneys, for appellee.

Harper called the police, and, when they arrived, he told them that Mann was one of the gunmen who had robbed the restaurant. Later, Harper also identified Mann as the perpetrator both in a photographic lineup and at trial. Another employee of the store, Richard Wilson, recognized one of the gunmen as a usual customer, and he also identified Mann in a photographic lineup. At trial, Wilson identified a pair of pants taken from Mann’s bedroom as the same pair of pants worn by one of the gunmen. In addition, an imprint in Mann’s mattress indicated that he had been hiding a handgun underneath it.

Finally, a videotape of footage captured by the restaurant’s surveillance camera was shown to the jury. Perry Riley, the general manager of the restaurant, watched the tape and opined that one of the gunmen looked like Mann. Although Riley was not present at the time of the burglary, he had hired Mann to work at the restaurant on two prior occasions, and, as such, he was very familiar with the defendant.

This evidence was more than ample to support Mann’s convictions. And, although Mann now tries to argue that there were conflicts in the testimony of the witnesses against him, such conflicts are the province of the jury, not this Court. Payne, supra.

Judgment affirmed.

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

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Payne v. State, 248 Ga. App. 158, 159 (1) (545 SE2d 336) (2001).


text:
    A02A0731.
    KNOX v. THE STATE.
    (564 SE2d 225)
   Miller, Judge.

A jury convicted Ricky N. Knox of aggravated assault. Following the denial of his motion for new trial, Knox filed this appeal. Asserting only the general grounds, Knox claims that the trial court erred in refusing to grant him a new trial. We disagree and affirm.

On appeal, the evidence presented at trial must be considered in the light most favorable to the verdict, and Knox no longer enjoys the presumption of his innocence. Pollard v. State, 230 Ga. App. 159 (495 SE2d 629) (1998). The evidence, when so viewed, showed that during a cookout, Knox, who was consuming alcoholic beverages, became increasingly intoxicated as the day wore on. At about 10:30 that same evening, a sheriff’s deputy stopped his cruiser outside in the yard. As the victim was about to leave, she and Knox became embroiled in an argument. She testified that Knox was upset because she had given a beer to a person whom Knox did not want to be there and because she was conversing with a man by the name of “Coolie.” She surmised that Knox mistakenly believed that she and Coolie were talking about him. Despite her denials that he was the subject of their conversation, Knox grew increasingly angry. When Knox slapped her, the victim testified that she then jumped on him. Still in his wheelchair, Knox then grabbed a milk crate and struck her in the face. The impact of the milk crate broke the victim’s nose and lacerated her face. Her injuries required repeated medical treatment to alleviate breathing problems. The deputy witnessed the altercation, rendered aid, and summoned emergency medical assistance to the scene.

Knox testified on his own behalf and claimed that the victim had slapped him first then grabbed his shirt. Knox denied hitting her and claimed that only after she grabbed him did he then shove her away to get her off of him. While Knox denied hitting the victim with the milk crate, he did admit shoving the crate into her face after she had jumped across the ramp and tried to grab him. The jury found Knox guilty of aggravated assault.

In his sole enumeration of error, Knox contends that the verdict is contrary to the law, contrary to the evidence, and strongly against the weight of the evidence. Knox argues that since he is paralyzed and confined to a wheelchair and “the alleged victim” was fully mobile, she was “able to inflict much greater harm to Defendant than he could inflict upon her.” He claims that since the victim admitted to “jumping on” him, the “more credible version of the facts” is that he acted defensively.

When the general grounds are asserted, as here, only the sufficiency of the evidence can be considered. Yawn v. State, 237 Ga. App. 206 (515 SE2d 182) (1999). A person commits the crime of aggravated assault by committing an assault with a deadly weapon or with any object, device, or instrument, which when used offensively against another person, is likely to result in serious bodily injury. McLeod v. State, 245 Ga. App. 668, 669 (3) (538 SE2d 759) (2000); see OCGA § 16-5-21 (a) (2). The question of whether an object or instrument that was used against someone constitutes a deadly or offensive weapon is properly for a jury to decide. Spaulding v. State, 185 Ga. App. 812, 813 (1) (366 SE2d 174) (1988).

Decided April 11, 2002.

Samuel G. Oliver, for appellant.

J. Thomas Durden, Jr., District Attorney, James S. Archer, Assistant District Attorney, for appellee.

Here, the evidence shows that Knox grabbed a milk crate and used it offensively against another person and that the crate when so used was likely to or did inflict serious bodily harm. See McLeod, supra. This evidence was sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), for the jury to find all the essential elements of aggravated assault. See Cline v. State, 199 Ga. App. 532, 534 (2) (405 SE2d 524) (1991).

Although Knox seeks to portray the victim as the aggressor, it was the jury’s duty to resolve any conflicts in the evidence and to assess and determine the credibility of the witnesses. Palmore v. State, 264 Ga. 108 (441 SE2d 405) (1994). Obviously, the jury in this case opted to believe the victim and the deputy sheriff and apparently resolved any conflicts in the testimony adversely to Knox. See Norris v. State, 227 Ga. App. 616, 619 (4) (489 SE2d 875) (1997).

Judgment affirmed.

Blackburn, C. J., and Johnson, P. J., concur.


author: Phipps, Judge. Ruffin, Judge, Eldridge, Judge,

text:
    A01A2013.
    PEREZ v. THE STATE.
    (564 SE2d 208)
   Phipps, Judge.

Pedro Perez was tried by a jury and convicted of trafficking in methamphetamine in an amount greater than 400 grams. His co-defendant, Anibal Cruz, negotiated a guilty plea to a lesser offense in exchange for his testimony against Perez. Perez claims that the trial court erred by impermissibly limiting his cross-examination of Cruz about the reduced sentence he had received as part of his deal with the State. We agree and reverse on this ground. Perez also claims that the trial court erred by allowing the State to introduce evidence of his character and by admitting a tape-recorded telephone conversation between Cruz and a confidential informant. We hold that Perez has waived his right to challenge the admission of the character evidence and further hold that the trial court did not err by admitting the tape recording.

Perez and Cruz arranged to sell a confidential informant a pound of methamphetamine in the parking lot of an abandoned Sam’s Club warehouse in Austell. The informant was wired for sound, and when it became clear that drugs had been exchanged for money, members of the Drug Enforcement Administration (DEA) task force moved in and arrested Perez and Cruz. They were indicted for trafficking in methamphetamine in an amount greater than 400 grams.

1. Cruz negotiated a guilty plea to a lesser offense in exchange for his testimony against Perez. On direct examination, Cruz admitted that he had pled guilty and been sentenced to serve 15 years. During Cruz’s cross-examination, Perez’s attorney sought to reveal the terms of Cruz’s deal with the State. The goal of the questioning objected to by the State and precluded by the trial court was to show the significant reduction in sentence (from 25 years to 15 years) given in exchange for Cruz’s testimony. Because Cruz offered the only testimony from a witness who observed the transaction for which Perez was prosecuted, exposing Cruz’s motive, bias, and interest in cooperating with the State was crucial to Perez’s defense. In Vogleson v. State, this court held that a defendant has a constitutionally protected right to explore on cross-examination a co-defendant’s or an accomplice’s agreement with the State, including the amount of prison time the co-defendant or accomplice would avoid by agreeing to cooperate with the State and testify against the defendant. Applying Vogleson, we reverse.

The dissent argues that Vogleson should be reversed in light of Hodo v. State, a Supreme Court of Georgia decision we distinguished in Vogleson. But this case is even more distinguishable from Hodo than was Vogleson. Here, Cruz had already been sentenced before testifying against Perez whereas the witness in Hodo was not involved in the crimes being tried and had not been charged with any crime. Requiring the witness in Hodo to speculate about crimes with which he might be charged differs significantly from requiring an accomplice to reveal the disparity between the sentence he has received and the minimum sentence he would have received if not for his deal with the State.

The dissent’s claim that our decision will mislead the jury about the fact that an accomplice or co-defendant may serve less than his entire sentence because of the possibility of parole is itself misleading. The goal of the cross-examination protected here is to expose a witness’s bias or motivation by revealing the deal the State gave to the accomplice/witness for agreeing to testify against the defendant. The most important aspect of such a deal is the potential for a reduction in the sentence imposed by the trial court. The authority to grant parole or other relief from the sentence imposed by the trial court rests with the State Board of Pardons & Paroles, not the district attorney’s office. Thus, the decision to grant parole cannot be part of any deal reached between the accomplice/witness and the State. Moreover, this case is not about the possibility of parole. Cruz had already pled guilty and been sentenced before he testified; Perez merely sought to reveal the much larger mandatory sentence Cruz avoided by testifying against him.

2. Perez claims that the trial court erred by allowing the State to introduce evidence of his character in three separate instances: (1) the State’s opening argument; (2) DEA Task Force Agent Tysver’s testimony; and (3) a tape-recorded conversation between Cruz and the informant, which involved the informant setting up the drug purchase with Cruz and included two brief references to Perez. We find that Perez has waived his right to review of these claims.

(a) During opening arguments, the prosecutor told the jury that Cruz would testify that “these drugs belonged to Pedro Perez, they’re in business together.” Pretermitting whether the statement was improper, we find that Perez waived this issue by failing to object to the statement in the trial court.

(b) On direct examination, Tysver testified that “[t]he confidential informant had told us that he had gotten this quantity [of drugs] before from Pedro [Perez].” The statement was clearly objectionable, but Perez made no objection. Later in his testimony, Tysver made another objectionable comment, stating that “[t]he confidential informant had told us when he previously dealt with Pedro [Perez] that [Perez] never counted the money.” Again, Perez raised no objection. When the court announced that it was time for a lunch break, Perez’s counsel moved for a mistrial based on Tysver’s comments. The court denied the motion as untimely, recalling that after the objectionable comments were made, “the State went on to at least two other subjects. ... It was at least five or six minutes until the State suggested that we break for lunch. . . . And I broke for lunch and then, and only then, did you make a motion for mistrial.”

“To preserve a motion for mistrial for appellate review, the motion must be made contemporaneously with the objectionable testimony. [Cits.]” Perez’s motion for mistrial was not timely and review of its denial was waived because it was not made contemporaneously with the objectionable testimony.

We note that “[i]n exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” Given our holding in Division 1, we need not determine if the objectionable comments should be reviewed under this plain error standard.

(c) Perez asserted a hearsay objection to the tape-recorded conversation between Cruz and the informant, which we review in Division 3, infra. But Perez never objected to or made a motion to exclude the tape recording because it impermissibly placed his character in issue. As a result, he cannot raise that objection for the first time on appeal.

3. “[T]he statements made by [Cruz] in the recorded call were admissible under the exception to the hearsay rule recognized by OCGA § 24-3-5” because at the time of the call, the conspiracy was still pending between Perez and Cruz to commit the trafficking offense for which they were eventually arrested. Even though the informant was not a co-conspirator, his statements “in the recorded call would be admissible as part of reciprocal and integrated utterances between him and [Cruz], for the limited purpose of putting [Cruz’s] responses in context and making [Cruz’s] statements intelligible to the jury and recognizable as the statements of a co-conspirator. [Cit.]” The trial court did not err by admitting the tape recording.

Judgment reversed.

Blackburn, C. J, Johnson, P. J., Miller, Ellington and Mikell, JJ., concur. Pope, P. J., Smith, P. J., Ruffin and Barnes, JJ., concur and concur specially. Andrews, P. J., and Eldridge, J., dissent.

Ruffin, Judge,

concurring specially.

I concur fully with all that is said by the majority. I write separately merely to undergird the important right at stake — the constitutional right to confront one’s accusers.

Wisdom does not greet us at the door of legal issues. For accurate and adequate disposition of issues, we look first to precedent. Failure to adhere to precedent, without a rational basis, creates judicial uncertainty. And we can neither risk nor condone judicial uncertainty, which not only risks institutional uncertainty, but also uncertainty in the law itself. Accordingly, stare decisis should govern. Nothing has happened between our decision in Vogleson v. State and our decision today that warrants a departure from our earlier opinion. Indeed, the dissent’s rationale is no more compelling now than when we met it in Vogleson.

I remain steadfast in my belief that a defendant’s right to a sifting cross-examination of his accusers includes the ability “to establish the exact nature and extent of any bias on the part of a State’s witness, which includes the ability to delve into the details of the deal reached with the State.” And the dissent’s argument does nothing to dissuade me. Rather, it clearly solidifies my views.

The dissent hinges upon the assertion that the testifying co-defendant’s actual prison time is an unknown. Thus, the dissent reasons, the specific number of years in prison “saved” by that co-defendant is misleading. What the dissent fails to recognize, however, is that evidence regarding the actual number of years subtracted from a mandatory sentence in exchange for the testimony of a co-defendant is not offered to show how many years that witness will actually serve in prison. Rather, it provides an objective and accurate benchmark for jurors, who are then charged with determining whether the deal that the witness struck with the state was sufficiently lucrative to render that witness’s testimony less creditworthy. And, as in Vogleson, I do not believe that oblique references to “lengthy sentences” sufficiently inform jurors regarding possible bias. Indeed, what constitutes a lengthy sentence is inherently subjective and likely varies considerably depending upon the age and experience of each individual juror.

With ardor amiss, the dissent firmly focuses on so-called “juror deception.” In so doing, the dissent either fails or refuses to grasp the crux of the issue. Accordingly, I believe that the dissent’s rationale is fundamentally flawed. The two competing interests at issue both in Vogleson and here are: (1) the defendant’s right to thoroughly cross-examine an accomplice witness; and (2) the defendant’s right to a bifurcated trial in which his punishment is not addressed until his guilt is established. The sole reason for refusing to admit evidence of the possible punishment faced by the co-defendant is that it necessarily raises the issue of the defendant’s possible punishment. If, as the dissent contends, the actual sentence is a complete unknown, then why the prohibition against injecting the sentence faced by the defendant? Surely the Board of Pardons & Paroles is just as likely to reduce the sentence of the defendant as well as that of the co-defendant. Accordingly, if the dissent’s reasoning is accepted, there is no reason for excluding evidence of the sentence faced either by the defendant or the co-defendant. It follows that there is even less reason to prohibit a defendant from cross-examining the testifying accomplice.

Contrary to the dissent’s position, however, the sentence is not an unknown quantity — it is a concrete number. Although that number may not translate into the exact number of years a defendant may actually serve, it nonetheless provides jurors an accurate benchmark. If this were not the case, there would be no need for a bifurcated trial, which “was created to withhold matters inadmissible on the issue of guilt or innocence from the jury until that issue has been determined.” Inherent in OCGA § 17-10-2, the statute establishing the bifurcated procedure, is the premise that the introduction of a defendant’s possible sentence is potentially prejudicial. Even if such sentence is not exact, it is not, as the dissent would have us believe, meaningless — either to the defendant or to the testifying co-defendant. And, if a defendant chooses to elicit such potentially prejudicial testimony from the co-defendant in the hopes of establishing bias, the defendant should retain the right to make such choice.

In the theater of the judiciary, where life, liberty, and property are at stake, no person should be allowed to pit his self-interest against that of another without the severest scrutiny. Here, the dissent would allow a testifying co-defendant to act in his self-interest by cooperating with the State, without allowing the defendant to fully scrutinize that interest. The treachery of this error lies in the tragedy of its truth, that is: self-interest versus self-interest. The dissent, with all of its celerity, continues to move in a different and distant direction. But our constitution protects one irrespective of crime or creed, piety or position, wit or wealth.

The dissent urges us to employ both reason and the law. However, I find the dissent’s position unreasonable and contrary to law. As that judicial cognoscenti, Oliver Wendell Holmes, Jr., said, “[t]he life of the law has not been logic: it has been experience.” Another sage, Benjamin N. Cardozo, reminds us from the past,

[t]he law has “its epochs of ebb and flow.” One of the flood seasons is upon us. Men are insisting, as perhaps never before, that law shall be made true to its ideals of justice. Let us gather up the driftwood, and leave the waters pure.

Our reasoning in Vogleson was sound, and our opinion there should remain safe. And, as for the law, Vogleson remains the law and should be followed consistent with stare decisis. The waters are pure, and we should leave them so. Hence, I concur fully with the majority.

I am authorized to state that Presiding Judge Pope, Presiding Judge Smith and Judge Barnes join in this concurrence and special concurrence.

Eldridge, Judge,

dissenting.

This Court continues to tread a wrong path only recently forged in Vogleson v. State. The wrong created by Vogleson can be corrected. However, to do so would require quieting the roar of “Sixth Amendment Rights!” that accompanied the Vogleson decision, a din that — when improperly applied as in Vogleson — is superficial. Instead, I urge the employment of reason — and the law.

1. In Perez’s case, as in Vogleson, informing the jury of the statutory sentence an accomplice avoided by pleading to less than the indicted offense also informs the jury of the statutory sentence the defendant is facing under the indicted offense — if the jury convicts him. Every jury, composed of ordinary human beings, feels the pressure that accompanies its duty to convict when the evidence so demands. Such pressure can only increase with the knowledge of the statutory sentence to be imposed on a defendant — if the jury convicts him. It is for this reason, a defense attorney may want sentencing information to go before the jury, hoping to play upon emotions regardless of the facts. And it is for this same reason the statutory sentence authorized by conviction has never been permitted to go before the jury during guilt/innocence deliberation: “injection of sentence in a jury’s deliberation as to guilt or innocence is improper.” This is because the sentence carried by a particular crime is completely irrelevant with regard to whether a defendant actually committed the crime. Such principle of law has deep roots which the majority appears completely willing to abandon.

Because Vogleson represents a stark abandonment of stare deci-sis, it should be overruled. In doing so, this Court should adhere to the Supreme Court’s decision in Hodo v. State. When a defendant is otherwise permitted to thoroughly explore an accomplice’s deal with the State as a motivation for testifying, the refusal to permit conjecture about specific penalties imposed or to be imposed does not amount to an abuse of the trial court’s discretion.

2. Also, in Vogleson and now here, this Court endorses a strategy which misleads a jury into believing that the statutory sentence authorized by an indicted offense is identical to the amount of “prison time” an accomplice avoided by pleading to a lesser offense and testifying for the State. As was stated in Vogleson,

the trial court completely precluded any testimony regarding the sentence [the accomplice-witness] would have received if he had not reached a deal with the State and had been convicted of the crimes for which he was indicted. By doing so, the trial court prevented the jury from considering the most important aspect of [his] deal — how much prison time he was avoiding by agreeing to cooperate with the State.

Vogleson held that it is proper to inform a jury on cross-examination that “the accomplice-witness ‘saved himself’ a minimum of 15 years by virtue of reaching a deal with the State.” And, again here, the majority reiterates this principle by holding that a defense attorney may put before the jury “the amount of prison time the co-defendant or accomplice would avoid by agreeing to cooperate with the State and testify against the defendant.”

But, this Court is well aware that the amount of prison time “saved/avoided” by Cruz’s plea cannot be known and is not the equivalent of the statutory sentence carried by the indicted offense. The State Board of Pardons & Paroles determines the amount of prison time on a sentence imposed for most offenses, including nonviolent crimes and drug offenses with “mandatory” sentences, as here and in Vogleson. In fact, in the vast majority of cases, the amount of actual prison time is considerably less than the sentence authorized by the indicted offense. In this case, for example, Cruz will be eligible for parole after serving five years and Perez will be eligible for parole after seven years (the same scenario as Vogleson). So, Cruz “saved himself” two years of prison time before the possibility of release, not the “minimum of 15 years” the specific statutory sentence — and Vogleson — would allow the jury to believe as a motivation for Cruz’s testimony. Obviously, the amount of prison time avoided by a plea is speculative and conjectural only.

To allow a jury to believe that the sentence authorized by the indicted offense corresponds to the amount of “prison time” an accomplice avoided by pleading to a lesser offense is completely misleading. And why this Court continues to endorse such deception is a mystery. But clearly, in these circumstances, the State should be allowed to rehabilitate such misrepresentation on redirect. Under parole guidelines in most cases, an accomplice is not facing the amount of prison time authorized by the indicted offense; he knows he is not facing such prison time; and so avoiding such prison time cannot be the “motivation” for his testimony. If exploring an accomplice’s “motivation” for testifying is the reason for the majority’s decision, then the accomplice’s understanding of the prison time he actually faces under the indicted offense should be put before the jury as his “motivation” — not merely the statutory sentence carried by the indicted offense. Of course, such questioning will also inform the jury that the defendant does not face the amount of prison time authorized by the indicted offense. But misrepresentation of an accomplice’s motive to testify clearly merits correction. Invoking the Sixth Amendment cannot legitimate misrepresentation. Indeed, to me, the correction of such misrepresentation presents a compelling and logical reason to overrule Vogleson.

Decided March 27, 2002

Reconsideration denied April 12, 2002

Martin M. del Mazo, for appellant.

Patrick H. Head, District Attorney, Andrew J. Saliba, Amelia G. Pray, Assistant District Attorneys, for appellee.

Again, in overruling Vogleson, we should adhere to the Supreme Court’s decision in Hodo v. State, supra. When a defendant is otherwise permitted to thoroughly explore an accomplice’s deal with the State as a motivation for testifying, the refusal to permit conjecture about specific penalties imposed or to be imposed does not amount to an abuse of the trial court’s discretion. In so finding, we establish the continuity in the law that concerns us all.

I am authorized to state that Presiding Judge Andrews joins in this dissent.

       250 Ga. App. 555, 558-559 (1) (552 SE2d 513) (2001).

       272 Ga. 272 (528 SE2d 250) (2000).

       OCGA § 42-9-42 (a).

       Perez alludes to a claim of ineffective assistance of counsel in his argument, but failed to include such a claim in his enumeration of errors. Given our holding in Division 1, we need not address this claim.

        Bailey v. State, 273 Ga. 303, 306 (4) (540 SE2d 202) (2001).

        Gilliam v. State, 240 Ga. App. 158, 159 (1) (522 SE2d 766) (1999).

       (Citations and punctuation omitted.) Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986) (on motion for rehearing).

        Howard v. State, 233 Ga. App. 724, 729 (5) (505 SE2d 768) (1998).

        Bundrage v. State, 265 Ga. 813, 814 (2) (462 SE2d 719) (1995).

       Id.; but see id. at 817-818 (Sears, J., concurring specially).

       250 Ga. App. 555 (552 SE2d 513) (2001).

       Id. at 563 (Ruffin, J., concurring specially).

       See Whitlock v. State, 239 Ga. App. 763, 765-766 (2) (521 SE2d 901) (1999).

         Eberheart v. State, 232 Ga. 247, 253 (5) (206 SE2d 12) (1974).

       Holmes, Selections from the Common Law, The Mind and Faith of Justice Holmes (Random House 1943), 51.

       Cardozo, A Ministry of Justice, 35 Harv. L. Rev. 113, 126 (1921).

       250 Ga. App. 555 (552 SE2d 513) (2001), cert. granted, Case No. S01C1642, February 4, 2002.

       Even the most important of our constitutional protections cam be employed in empty rhetoric.

        Vogleson v. State, supra at 564 (3) (Eldridge, J., dissenting), citing Green v. State, 206 Ga. App. 539, 541 (2) (426 SE2d 65) (1992).

        Bellamy v. State, 272 Ga. 157, 159 (4) (527 SE2d 867) (2000); Harris v. State, 234 Ga. 871, 873 (218 SE2d 583) (1975); Ford v. State, 232 Ga. 511, 518 (14) (207 SE2d 494) (1974); Moore v. State, 228 Ga. 662, 665 (5) (187 SE2d 277) (1972); accord Fletcher v. State, 197 Ga. App. 112, 113 (3) (397 SE2d 605) (1990); Lewis v. State, 158 Ga. App. 575 (281 SE2d 318) (1981); Evans v. State, 146 Ga. App. 480, 483 (2) (246 SE2d 482) (1978); Hill v. State, 144 Ga. App. 259 (2) (241 SE2d 44) (1977); Mayo v. State, 139 Ga. App. 520 (1) (229 SE2d 16) (1976).

       272 Ga. 272, 274 (4) (528 SE2d 250) (2000).

        Whitlock v. State, 239 Ga. App. 763, 765-766 (2) (521 SE2d 901) (1999); Ross v. State, 231 Ga. App. 506, 509 (3) (499 SE2d 351) (1998).

       (Emphasis supplied.) Vogleson v. State, supra at 558 (1).

       (Emphasis in original.) Id. at 562 (Ruffin, J., concurring specially).

       See Swantner v. State, 244 Ga. App. 372, 375 (2) (b) (535 SE2d 343) (2000) (OCGA § 17-10-6.1 “provides for mandatory minimum sentences and forbids pardon, parole, or first offender status for certain ‘serious violent felonies,’ but not for drug trafficking.”); see also Mann v. State, 273 Ga. 366 (541 SE2d 645) (2001); Norwood v. State, 249 Ga. App. 507 (548 SE2d 478) (2001) (specific sentencing provisions in statutory offenses prevail over mandatory sentencing provisions in recidivist statute at OCGA § 17-10-7 so that the trial court retains discretion to impose any sentence within the mandatory minimum and the statutory maximum range and is not bound by the recidivist statute’s mandatory provisions).

       OCGA §§ 42-9-40; 42-9-42; 42-9-45; 42-9-46; see Vargas v. Morris, 266 Ga. 141, 142 (2) (465 SE2d 275) (1996); see also Charron v. State Bd. of Pardons & Paroles, 253 Ga. 274 (319 SE2d 453) (1984) (OCGA § 42-9-46 authorizes the Parole Board to consider an inmate for parole before the inmate has served the minimum time specified in § 42-9-45).

       OCGA § 42-9-45 (b), (f).

       See OCGA §§ 17-10-6.1; 17-10-7; see also Freeman v. State, 264 Ga. 27 (440 SE2d 181) (1994); compare Hernandez v. State, 244 Ga. App. 874, 876 (537 SE2d 149) (2000) (evidence of a mandatory sentence is not error so as to demonstrate a “manifest necessity” for mistrial).

       Indeed, the Parole Board’s guidelines are often an essential part of a defendant’s decision to plead guilty. See, e.g., Swantner v. State, supra at 375-376; Crabbe v. State, 248 Ga. App. 314 (546 SE2d 65) (2001) (defendant received ineffective assistance of counsel because of erroneous advice about parole eligibility); see also Williams v. Duffy, 270 Ga. 580, 581-582 (1) (513 SE2d 212) (1999) (failure to advise of parole guidelines does not render guilty plea invalid); State v. Colack, 273 Ga. 361 (541 SE2d 374) (2001) (failure to inform defendant of “collateral factor” such as deportation renders counsel ineffective); Mann v. State, supra at 367 (1) (defendant rejected the plea bargain due to his trial counsel’s failure to inform him that the only sentence he could receive if convicted was life without parole). Imparting incorrect information about parole can serve as a basis for ineffective assistance of counsel, because the subsequent guilty plea based on incorrect parole information was not freely and voluntarily made. Crabbe v. State, supra; State v. Colack, supra.