author: McMurray, Presiding Judge. Beasley, Judge, Andrews, Judge,

text:
    A91A1881, A92A0221.
    CARVER v. THE STATE (two cases).
    (416 SE2d 810)
   McMurray, Presiding Judge.

This is the second appearance of these cases. In Carver v. State, 198 Ga. App. 676 (403 SE2d 230) (two cases), this Court remanded the appeals and directed the trial court to determine whether defendant fairly waived his right to post-conviction representation. The cases were also remanded to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel. The records from the first appeals were reassembled for consideration of the cases sub judice.

Defendant was charged, via multi-count indictment, with aggravated assault upon a peace officer and four counts of felony obstruction of an officer. Defendant was charged in a separate indictment with two counts of forgery in the first degree. Defendant filed, pro se, demands for speedy trials and pleaded not guilty to the crimes charged in both indictments.

On November 13, 1989, the trial court called “the case ... of State of Georgia v. Jerry Carver” and attorney W. T. Straughan appeared and announced ready for defendant. A panel of 51 prospective jurors was assembled to try defendant on the indictment charging him with aggravated assault upon a peace officer and four counts of felony obstruction of an officer. The trial court asked the statutory questions and the panel indicated that they could be impartial in reaching a verdict and that they could decide the case based solely on the evidence presented at trial. Voir dire continued and a jury was selected. The following then transpired:

“THE COURT: Mr. Straughan, I do not believe that I would want to select another jury out of this panel and I’m willing to forego the selection of that jury and try the next case[, i.e., the charges in the indictment charging defendant with two counts of forgery in the first degree,] at a later time if the defendant is willing to withdraw his demand [for speedy trial] with respect to that case. You need to ask him about that. MR. STRAUGHAN: Very well, excuse me. . . . (Mr. Straughan confers with defendant) MR. STRAUGHAN: The defendant desires, I believe, to go ahead and choose the second jury at this time. Is that not correct? [DEFENDANT]: Yes. MR. STRAUGHAN: He desires to go forward in lieu of continuing the second case. THE COURT: Okay. Very Well.”

During the afternoon of November 13, 1989, the panel that was before defendant on the indictment charging him with aggravated assault upon a peace officer and four counts of felony obstruction of an officer was reassembled. The trial court instructed the panel that defendant was charged with two counts of forgery in the first degree and then qualified the prospective jurors with the statutory questions. The panel indicated that they could be impartial in reaching a verdict and that they could decide the case based solely on the evidence presented at trial. The following then transpired: “All right, gentlemen, the panel appears to be qualified. Mr. [Frederick] Mullís[, the State’s attorney,] you may voir dire. MR. MULLIS: Your Honor, I have no further questions. THE COURT: Mr. Straughan. MR. STRAUGHAN: Yes, sir. Thank you. Ladies and gentlemen, a rare occasion when we have two juries in an afternoon or a day but this is a requirement that this defendant desires to have his cases heard and he has filed a demand [for speedy trials] with the Court, and he is saying let me tell my story. This is the reason that we’re taking two juries and you have struck — some of you have been struck once, others have not. He is wanting to be tried and to do this we have to go back to you a second time.

“Ms. Frances Gillis, are you also Ms. Lanier Gillis? JUROR: Yes, I am. MR. STRAUGHAN: You are not only a witness in this case, you are a prosecutrix? JUROR: That’s true. MR. STRAUGHAN: You would have a feeling already as to the guilt or innocence, would you not? JUROR: I think so. THE COURT: I did not realize she was the prosecutrix. I knew she was possibly a witness, and I do disqualify her. Go ahead.” Voir dire continued and a jury was selected to try defendant on the charges that he committed two counts of forgery in the first degree. (Six members of the panel were selected to serve on both juries.) The trial court then directed jurors selected to serve for trial of the charges in the indictment charging defendant with two counts of forgery in the first degree to report for service on the morning of November 15, 1989.

On November 13 and 14, 1989, trial proceeded on the indictment charging defendant with aggravated assault upon a peace officer and four counts of felony obstruction of an officer. The evidence revealed the following: On January 5, 1989, law enforcement officers received a tip that defendant, who was then a fugitive from justice, was hiding out at a dwelling house in Wheeler County, Georgia. At about 6:00 that evening, Deputy Leon Brown of the Wheeler County Sheriff’s Department went to the house with two other Wheeler County deputies, a Georgia State Trooper and a local city police officer. Deputy Brown entered a wooded area near the house to prevent defendant’s flight. The other officers approached the house directly. Deputy Brown came within view of the house and was there confronted by defendant. The deputy identified himself as a law enforcement officer and defendant “lunged at [the deputy] and ... hit [him] in the face with his fist.” Defendant then seized Deputy Brown’s flashlight and struck the deputy on the head. Deputy Brown was dazed, but he grabbed defendant and the men fell to the ground. Defendant again struck the deputy on the head with the flashlight. Deputy Brown struggled with defendant, soon regaining his feet and drawing his service revolver. Defendant was then subdued and the men began walking toward the house. As defendant approached one of the other officers, he again fought to escape arrest. However, Deputy Brown and other officers restrained defendant and took him into custody. From this and other evidence adduced at trial, defendant was found guilty of aggravated assault upon a peace officer and felony obstruction of an officer. (Defendant was found not guilty on three counts of felony obstruction of a peace officer.)

On November 15, 1989, defendant was tried on the indictment charging him with two counts of forgery in the first degree. This trial concluded with guilty verdicts on both counts of the indictment. Defendant was then sentenced on both indictments and the trial court informed defendant of his right to appeal and “the right to be represented on appeal by your court appointed attorney. . . .” Defendant refused assistance from his court-appointed trial counsel and later argued, pro se, timely filed motions for new trial. (Defendant raised several grounds for new trials, including an assertion that his court-appointed attorney was ineffective.) The motions for new trial were denied and defendant filed pro se appeals.

After this Court remanded the appeals in Carver v. State, 198 Ga. App. 676, supra, the trial court appointed attorney Dennis Mullis to represent defendant and conducted a hearing to determine whether defendant’s trial attorney was ineffective. Attorney Dennis Mullis asserted virtually the same issues argued by defendant at the hearing on the earlier pro se motions for new trial. However, defendant expanded the issues, testifying that he did not receive a fair trial because five of the jurors who served at the trial on the indictment charging him with two counts of forgery in the first degree also served at the trial on the indictment charging him with aggravated assault upon a peace officer and felony obstruction of an officer. More specifically, defendant testified as follows: “[ATTORNEY DENNIS MULLIS]. Now getting off the track of ineffective assistance for a moment let’s talk about the forgery case. I believe that — correct me if I’m wrong, there were members of the jury that tried you on the forgery case who were also members of the jury who had just convicted you in the aggravated assault charge? [DEFENDANT]. Yes, sir. Five. Q. Five out of twelve. So tell the Court, or refresh the Court’s recollection about how that came to pass. A. I don’t think there [were] but 48 prospective jurors to begin with and we picked the first jury for the aggravated assault trial and that left some that, you know, I had to pick from the same bunch. The Court offered me — the Court told me that I could drop a speedy trial issue that I had and it would allow me to pick from a fresh panel in February, the next term, or if I didn’t drop the speedy trial issue I would have to pick from what I had. So I chose to pick from what I had because I felt a speedy trial violation was there. Q. Do you feel that the composition of the jury that tried you on the forgery case was affected by this? A. Sure I do. They already felt like I was a liar. They had already convicted me. Q. Same people? A. Same people. Q. All right. So you are raising that as an issue in your motion for new trial on the forgery charge? A. Yes, sir.”

The trial court entered an order denying defendant’s motions for new trial finding, in pertinent part, as follows: “Finally, the claim that it was error to proceed to trial in Case No. 89R-11[, the charges under the indictment charging defendant with two counts of forgery in the first degree,] because some of the jurors who convicted defendant in Case No. 89R-10[, the charges of the indictment charging defendant with aggravated assault of a peace officer and four counts of felony obstruction of an officer,] were included in the panel from which the jury was selected is without merit. There was no showing either during jury selection or at the hearing on the motion for new trial that any juror had formed or expressed any opinion as to the guilt or innocence of the defendant, was not perfectly impartial as between the state and the defendant, was not biased either for or against the state or the defendant, or could not sit and serve as a fair and impartial juror and return a verdict based solely on evidence produced at trial, in Case No. 89R-11. Moreover, the court, in an excess of caution, expressed concern to defendant that defendant might not wish to proceed to trial under the circumstances and brought to the attention of the defendant that some of the jurors in Case No. 89R-10 might well serve on the jury in Case No. 89R-11. The defendant, evidently relying on what he perceived to be the legal effect of his demand for trial, rejected the court’s suggestion of a continuance and elected to proceed to trial. Thus, any risk of harm to the defendant in the makeup of the jury was expressly and consciously assumed by him with full knowledge of the possible consequences.”

Attorney Dennis Mullis filed an appeal on defendant’s behalf from the convictions under both indictments. This appeal was divided into two appeals to more accurately reflect appeals from convictions under separate indictments. The appeal from defendant’s convictions for two counts of forgery in the first degree is designated Case No. A92A0221. The appeal from defendant’s convictions for aggravated assault upon a peace officer and felony obstruction of an officer is designated Case No. A91A1881. Held:

1. It is first alleged that “[t]he trial court erred in allowing the selection of a jury to try the defendant in his forgery case when that jury contained members of the defendant’s previous jury on the aggravated assault charge.” The State contends defendant cannot complain since he “consciously asked the court to go forward with the jurors available.”

“Generally, the failure of a party to raise an objection to the make-up of the jury until after the return of the verdict constitutes a waiver of the issue on appeal. Accord Atkins v. Martin, 229 Ga. 815 (3) (194 SE2d 463) (1972).” Vaughn v. State, 173 Ga. App. 716, 717 (3), 718 (327 SE2d 747). In the cases sub judice, defendant’s trial attorney failed to challenge the make-up of the jury at the trial on the charges that defendant committed two counts of forgery in the first degree. In fact, the voir dire transcripts reveal that defendant’s trial attorney accepted six jurors for service at the second trial who had already been selected to serve at the first trial without first exhausting peremptory strikes. Further, defendant’s appellate attorney neither contends on appeal nor did he contend at the hearing concerning the issue of ineffective assistance of counsel that defendant’s trial counsel acted ineffectively by failing to challenge the unique procedure of consecutively selecting two juries from the same panel for separate trials and by failing to challenge the make-up of the jury at the trial on the charges that defendant committed two counts of forgery in the first degree. Nonetheless, defendant expanded the issues asserted by his court-appointed appellate counsel at the ineffective assistance of counsel hearing by testifying that he did not receive a fair trial because he was required to either give up his right to a speedy trial or face a tainted panel and possibly a tainted jury at trial on the indictment charging him with two counts of forgery in the first degree. Defendant further testified that the second trial was not a fair trial because the jurors that served at both trials believed him to be a liar as is evidenced by their finding that he is guilty of aggravated assault upon a peace officer and felony obstruction of an officer. Under these circumstances, we cannot overlook the contention that “[t]he trial court erred in allowing the selection of a jury to try the defendant in his forgery case when that jury contained members of the defendant’s previous jury on the aggravated assault charge.” To say otherwise, ignores the reason these cases were remanded in Carver v. State, 198 Ga. App. 676, supra, i.e., for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel. See Ross v. Kemp, 260 Ga. 312, 313 (393 SE2d 244).

“ ‘ “In 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.” United States v. Atkinson, 297 U. S. 157, 160.’ Silber v. United States, 370 U. S. 717, 718 (82 SC 1287, 8 LE2d 798); accord Rogers v. United States, 422 U. S. 35, 41 (95 SC 2091, 45 LE2d 1); Lamb v. Cramer, 285 U. S. 217, 222 (52 SC 315, 76 LE2d 715); United States v. Tenn. &c. R. Co., 176 U. S. 242 (20 SC 370, 44 LE 452).” Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482). In the cases sub judice, defendant was entitled to speedy trials under OCGA § 17-7-170 and trials before impartial jurors. Bullard v. State, 14 Ga. App. 478, 480 (81 SE 369). However, the trial court gave defendant the alternative to either give up his right to a speedy trial under the indictment charging him with the two counts of forgery in the first degree or risk proceeding to trial on those charges before jurors exposed to evidence against defendant on unrelated serious criminal offenses. These circumstances caused the defendant to make the decision to select two juries from the same panel and then proceed with consecutive trials on separate and unrelated offenses.

“Every person charged with an offense against the laws of this State is, under our constitution, entitled, on demand, to be tried by an impartial jury.” Brown v. State, 104 Ga. 736 (1), 737 (30 SE 951). “That jurors should be impartial is of the very essence of a fair trial by jury.” Lewis v. State, 118 Ga. 803, 804 (45 SE 602). In the cases sub judice, six jurors selected to consider charges that defendant committed aggravated assault upon a peace officer and four counts of felony obstruction of an officer were selected to resolve charges that defendant committed two counts of forgery in the first degree.

Presence or participation at a prior trial or a related hearing which involved the defendant does not disqualify a juror where it is shown that the juror has not formed an opinion as to the guilt or innocence of the accused and that the juror will consider only evidence presented at trial. Bonner v. State, 180 Ga. App. 239, 240 (2) (348 SE2d 903). In the cases sub judice, the six jurors that served at both trials indicated during separate voir dire hearings that they could act fairly and impartially and that they would consider only evidence presented at the trials. However, their responses were made before defendant was found guilty on two counts of an indictment charging defendant with aggravated assault upon a peace officer and four counts of felony obstruction of an officer. Further, there is no indication that these six jurors held the same unbiased view after they determined that defendant was guilty of aggravated assault upon a peace officer and one count of felony obstruction of an officer. Consequently, there is no way of determining whether any bias injected by evidence supporting defendant’s conviction at the first trial was purged by the time defendant was tried on the charges that he committed two counts of forgery in the first degree.

“There can be no doubt that jury service in prior cases can, as a matter of law, lead to such prejudice that service in a later trial would deny the defendant his right to an impartial jury. This can occur when the prior jury service was in the trial of a co-defendant, United States v. Diaz-Munoz, 632 F.2d 1330 (5th Cir. 1980); or even when the prior jury service was in the trial of other persons charged with offenses similar to the present defendants. United States v. Mutchler, 559 F.2d 955 (5th Cir. 1977). These principles of fairness lead to the conclusion that a defendant may not be tried by the same jury for two separate offenses.” United States v. Muller, 698 F2d 442, 443-444 (1983). However, it has been held that the same jurors may try a defendant on charges of separate accusations if the crimes are based on the same conduct or a series of acts connected together or a series of acts constituting parts of a single scheme or plan. Whisenhunt v. State, 156 Ga. App. 583, 586 (10), 587 (275 SE2d 82). See Dingler v. State, 233 Ga. 462 (211 SE2d 752).

In the cases sub judice, defendant was charged in one indictment with assaulting a peace officer and obstructing four law enforcement officers. These offenses allegedly occurred on January 5, 1989. The other indictment charged defendant with forging two personalized checks. These offenses allegedly occurred on November 10, 1988. It is apparent from these allegations that the crimes charged in one indictment were separate and distinct from the crimes charged in the other indictment. Further, the records indicate that proof of the crimes charged in one indictment were not dependent of the crimes charged in the other indictment. See Bullard v. State, 14 Ga. App. 478, supra. Consequently, since the crimes charged in the separate indictments were not based on the same conduct or a series of acts connected together or a series of acts constituting parts of a single scheme or plan, we cannot say that defendant was fairly tried before an impartial jury on the charges that he committed two counts of forgery in the first degree. See Douberly v. State, 184 Ga. 573, 576 (7) (192 SE 223). It follows that Case No. A92A0221 must be reversed and sent back for a new trial.

2. Defendant next contends the trial court erred in denying his motions for discharge and acquittal under both indictments, arguing that the State failed to bring him to trial within 120 days after his demands for speedy trials. This contention is without merit.

OCGA § 17-7-170 provides, in pertinent part, as follows: “(b) If the person is not tried when the demand [for trial] is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.” This Code section does not require a defendant to be tried within 120 days of the filing of a demand for trial. In the cases sub judice, it is undisputed that defendant was tried at the term of court following the filings of his demands for trials.

3. Defendant contends the trial court erred “in charging the jury that they could consider the interest of [defendant] in weighing the credibility of [defendant] without charging similarly as to other witnesses.” This contention is not supported by the records.

In both trials, the trial court charged that “in determining the degree of credibility that shall be accorded [defendant’s] testimony you have the right to take into consideration the fact that [defendant] is interested in the result of the prosecution.” The trial court also charged during both trials that “[i]n passing upon the credibility of the witnesses you may [consider] the witnesses’. . . interest or lack of interest in the case. . . .” These were appropriate instructions. Blair v. State, 144 Ga. App. 118, 119 (4) (240 SE2d 319).

4. In his final enumeration, defendant contends the trial court erred in determining that he did not receive ineffective assistance from his trial attorney.

“In determining whether the defendant has established that counsel’s performance was constitutionally deficient, the court should keep in mind that ‘counsel’s function ... is to make the adversarial testing process work in the particular case.’ [Strickland v. Washington, 466 U. S. 668, 690 (104 SC 2052, 80 LE2d 674).] ‘(C)ounsel has a duty to make reasonable investigations.’ Id. at 691. [However], the defendant must ‘overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” ’ Id. at 689, citing Michel v. Louisiana, 350 U. S. 91, 101 (76 SC 158, 164, 100 LE 83) (1955).” Jowers v. State, 260 Ga. 459, 461 (2), 462 (396 SE2d 891).

In the cases sub judice, defendant argues that his trial attorney did not call an eyewitness which would have supported his claim that he struggled with Deputy Leon Brown and other law enforcement officers in self-defense. In this vein, defendant’s trial counsel testified that he did not call an eyewitness to the incident which led to the charges that defendant committed aggravated assault of a peace officer and four counts of felony obstruction of an officer because interviews with the eyewitness revealed evidence which would have been detrimental to defendant’s claim that he acted in self-defense. The eyewitness’ testimony supported this conclusion. We therefore cannot say that omission of the eyewitness testimony was ineffective trial strategy.

Defendant argues that his trial attorney failed to call Joe Daniel Maddox to testify about the violent propensities of Deputy Leon Brown. This argument is not supported by the record. Joe Daniel Maddox testified at the motions for new trials’ hearing, but he did not give testimony showing that Deputy Leon Brown was a violent man.

Defendant designates a portion of the transcript wherein he was tried on the two counts of forgery in the first degree and argues that his trial attorney “sat by without objection while the District Attorney elicited copious testimony concerning unrelated and irrelevant violent acts by [defendant].” Since defendant will be retried on the charges that he committed two counts of forgery in the first degree, this argument presents nothing for review.

Defendant finally claims that his attorney should not have attempted to suppress the flashlight defendant allegedly used to beat Deputy Leon Brown. We fail to understand how this tactic constitutes ineffective assistance of counsel. This enumeration is without merit.

Judgment affirmed in Case No. A91A1881.

Sognier, C. J., and Birdsong, P. J., concur. Beasley and Cooper, JJ., concur specially and in the judgment. Carley, P. J., Pope, Andrews and Johnson, JJ., concur in the judgment only. Judgment reversed in Case No. A92A0221. Sognier, C. J., and Birdsong, P. J., concur. Beasley and Cooper, JJ., concur specially and in the judgment. Carley, P. J., Pope, Andrews and Johnson, JJ., dissent.

Beasley, Judge,

concurring specially.

I concur in the judgment because, if defendant waived the right to be tried by a jury which did not contain jurors who had just found him guilty of other charges, then he was deprived of effective assistance of counsel. Insofar as that was not urged by appellate counsel, this case fits within that category of “exceptional circumstances” contemplated in Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986), which the majority identifies. An impartial jury is the heart of a fair trial.

I am authorized to state that Judge Cooper joins in this special concurrence.

Andrews, Judge,

dissenting.

I concur in the disposition of Case No. A91A1881. I disagree with the judgment of reversal in Case No. A92A0221. The record reflects that the claimed error in the jury selection process was waived when trial counsel failed to challenge the poll or otherwise object, and knowingly acquiesced in the process.

On November 13, 1989, a panel of 51 jurors was assembled and sworn for the trial of the two cases pending against the defendant. Voir dire and the selection of 12 jurors and an alternate were first completed in the case charging the defendant with aggravated assault and felony obstruction against police officers. Out of the presence of jurors the trial court then related to defense counsel that, although he did not deem it advisable, unless the defendant was willing to drop his demand for trial so that the second unrelated forgery case could be continued, he would be faced with the prospect of attempting to select a jury for the second trial out of the same panel. The record does not indicate why a second panel would not have been available. After conferring with the defendant, defense counsel responded that he would not drop the demand for speedy trial, and would proceed with choosing the second jury. Thereafter, prior to trial of the first case, a second voir dire was conducted of the entire panel, including those previously selected as jurors for the first case.

In beginning his voir dire for the second jury, defense counsel stated to the panel: “Ladies and gentlemen, a rare occasion when we have two juries in an afternoon or a day, but this is a requirement that this defendant desires to have his cases heard and he has filed a demand with the Court, and he is saying let me tell my story. This is the reason that we’re taking two juries and you have been struck once — some of you have been struck once, others have not. He is wanting to be tried and to do this we have to go back to you a second time.” During selection of the second jury, the State exhausted its ten peremptory strikes after seven jurors had been selected. Defense counsel, who at the time had exhausted only 13 of the defendant’s 20 peremptory strikes, then accepted without objection the next five consecutive jurors all of whom had previously been selected as members of the first jury. Both the State and the defense accepted the next juror as an alternate, who was also a member of the first jury. Immediately after the second jury was selected, the trial court commented that members of this jury had also been selected for service on the first jury. This comment drew no response from defense counsel.

The first case was thereafter tried on November 13 and 14 with the defendant being found guilty on two counts of the five-count indictment. Immediately prior to the commencement of the second trial on November 15, defense counsel made the following statement to the trial court: “One more point that I would like to make prior to the jury coming in is a bridge between this action and the other proceeding which is also recorded. A bar conference was held wherein the District Attorney and myself were called to you concerning the possible continuation of this action as a proceeding insofar as we would require . . . [interruption in the courtroom]. At that time it was brought to the Court’s attention that we would require the restriking of people previously under examination in a second panel which would include members from the first panel and that in fact our jury would include possibly members from the first panel. At that time the Court offered to continue our case until a later term. This was presented and the defendant desired to go forward. We went ahead and struck a jury at that time so that we do have on the second panel members from the first panel. But this was done knowingly and for the purpose of this record insofar as no other transaction concerning this matter would be in the record I make this simply for the edification of the record prior to proceeding forward.”

The jurors on the panel for both trials were qualified under their oaths in response to the statutory questions. Defense counsel was not limited in any way in the conduct of his separate voir dire for each jury. Defense counsel asked no questions designed to determine if any jurors were biased as a result of having knowledge of both cases against the defendant. Defense made no challenge to the poll for cause on the ground of bias, made no challenge to the array, and made no motion for continuance, mistrial, or any other objection relating to the jury selection process.

The defendant now enumerates as error on appeal that the trial court allowed the juries to be selected in this fashion. The majority concedes that no complaint was made in the trial court by the defendant, but concludes that reversal is necessary because the defendant was forced by this procedure to accept a biased jury. I do not conclude that the defendant was required to do anything other than exercise the rights accorded him by law in selecting a jury.

Although a defendant has a right to be tried before an impartial jury, where he complains that the jury was biased, he must have taken at least some action in the trial court to register an objection in order to assert error on appeal. Newby v. State, 161 Ga. App. 805, 808-810 (288 SE2d 889) (1982); see Sides v. State, 213 Ga. 482, 484-485 (99 SE2d 884) (1957) (motion for continuance); Thrash v. State, 158 Ga. App. 94 (283 SE2d 611) (1981) (motion for mistrial). After jurors, as in the present case, have been rendered prima facie competent under oath in response to the statutory questions on voir dire, and the defendant “has failed to challenge any individual juror for cause, he is not entitled to a new trial solely on the basis that one or more members of his jury may have been subject to disqualification.” Newby, supra at 810.

Where the defendant’s objection, as here, is based on a claim that members of the panel were biased because of their knowledge of the first case, the proper method to register an objection to such bias is by a challenge to the poll for cause to allow a determination as to whether the jurors had formed an opinion as to the defendant’s guilt or innocence. Crider v. State, 98 Ga. App. 164, 165 (105 SE2d 506) (1958); Walls v. State, 83 Ga. App. 318, 324 (63 SE2d 437) (1951); Humphries v. State, 100 Ga. 260, 261-262 (28 SE 25) (1896); Jenkins v. State, 92 Ga. 459 (17 SE 966) (1893). “If the panel here objected to contained any jurors who were subject to challenge for cause, the proper method of objecting to such jurors would have been to make challenges to the polls. If the manner of the challenges was good at all it would not set aside the panel, but would be available only by challenges to the polls — to each individual juror by name — for cause.” (Punctuation and citations omitted.) Newby, supra at 809-810.

“In order to disqualify a juror for cause, it must be established that the juror’s opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence.” (Citations and punctuation omitted.) Chancey v. State, 256 Ga. 415, 425 (349 SE2d 717) (1986); Chance v. State, 172 Ga. App. 299, 301 (322 SE2d 741) (1984) (even though jurors may have knowledge of facts to come before them in the present case, the test remains whether they have formed fixed opinions as to the defendant’s guilt). “The conduct of voir dire and decision of whether to strike a juror for cause lies within the sound discretion of the trial court.” Hughey v. State, 180 Ga. App. 375, 377 (348 SE2d 901) (1986). The trial court will not be deemed to have abused its discretion in the control of voir dire by failing to give relief not requested. Roberts v. State, 259 Ga. 441, 443 (383 SE2d 872) (1989). Error occurs only where a judge without justification overrules a challenge for cause and leaves a biased juror on the panel. Rucker v. State, 135 Ga. App. 468, 471 (218 SE2d 146) (1975) (no error where defendant failed to challenge jurors for cause, and most of the panel had been spectators a few days earlier at defendant’s previous trial on a separate charge).

“Generally, the failure of a party to raise an objection to the make-up of the jury until after the return of the verdict constitutes a waiver of the issue on appeal.” Vaughn v. State, 173 Ga. App. 716, 718 (327 SE2d 747) (1985). Where the accused or his counsel has knowledge of the alleged error with respect to jurors’ qualifications to serve impartially, and no objection is made in the trial court, the alleged disqualification is deemed waived. Geiger v. State, 129 Ga. App. 488, 493 (199 SE2d 861) (1973); Thomas v. State, 249 Ga. 339, 340 (290 SE2d 462) (1982); Green v. Caldwell, 229 Ga. 650, 652 (193 SE2d 847) (1972); Clarke v. Grimes, 223 Ga. 461, 462 (156 SE2d 91) (1967). “[A]n accused cannot sit back and gamble upon the verdict and then, if dissatisfied, complain of the jury’s selection process for the first time after he has been convicted.” Young v. State, 232 Ga. 285, 286 (206 SE2d 439) (1974); Gilreath v. State, 247 Ga. 814, 824-825 (279 SE2d 650) (1981).

It is clear from the record in this case that the defendant acquiesced in selecting both juries from the same panel. Not only did defense counsel fail on voir dire to question or challenge the jurors on the issue of bias, but with seven peremptory strikes remaining and the State’s strikes exhausted, he voluntarily accepted six consecutive jurors for the second jury, all of whom had just been selected for service on the first jury. Even after the first trial which followed the selection of both juries, the defendant was not without a remedy. He could have moved for a mistrial, or prior to the State presenting evidence in the second trial, the defendant could have challenged the second jury under OCGA § 15-12-167 for bias on the basis that five of its members and the alternate had just heard additional evidence against the defendant in the first trial. The lack of any effort to challenge the jury selection process, and defense counsel’s statements on the record, demonstrate there was a waiver of the claimed error.

I share the majority’s concern that this case is before us again after being remanded for a hearing on claims that trial counsel was ineffective. The record reflects that the matter of selecting two juries from the same panel was raised at the remand hearing, although trial counsel was not questioned on this issue at the hearing. See Dawson v. State, 258 Ga. 380, 381 (369 SE2d 897) (1988) (testimony of trial counsel not necessary where claim of ineffectiveness is related to matters in the record). The majority quotes at length from the trial court’s order denying the claim of ineffectiveness on this issue. Appellate counsel enumerated as error the trial court’s determination that the defendant was not denied effective assistance of counsel, then under this enumeration argued virtually every ground of claimed ineffectiveness raised below except the jury selection matter, which appellate counsel completely ignored. Enumeration of error not supported in the brief by citation of authority or argument is deemed abandoned. Owens v. State, 192 Ga. App. 335, 342 (384 SE2d 920) (1989); Boyce v. State, 184 Ga. App. 578, 580 (362 SE2d 229) (1987); Court of Appeals Rule 15 (c) (2). Even if the jury selection issue were properly before us on a claim of ineffective counsel, the issue would be whether reversible error occurred under the standards of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), rather than the analysis undertaken by the majority.

Decided March 5, 1992

W. Dennis Mullís, for appellant.

James L. Wiggins, District Attorney, H. Frederick Mullís, Jr., Assistant District Attorney, for appellee.

I am authorized to state that Presiding Judge Carley, Judge Pope and Judge Johnson join in this dissent.

       The dissent states that “a panel of 51 jurors was assembled and sworn for the trial of the two cases pending against the defendant.” The trial transcript of the case wherein defendant was tried for aggravated assault upon a peace officer and four counts of felony obstruction of an officer reveals that 52 people were called for jury service, but that only 51 prospective jurors were assembled because one person did not appear for jury service. Further, the voir dire transcript in this case reveals that the trial court disqualified six of the 51 propsective jurors because two were law enforcement officers, two were residents of a county other than the county of defendant’s trial, one was a member of the Grand Jury that indicted defendant and one had been prejudiced by outside communications. It was later shown that a member of the jury panel was a prosecutrix and a witness under the indictment charging defendant with two counts of forgery in the first degree. However, the trial transcripts in the cases sub judice reveal that the trial court did not disqualify this prospective juror from the panel at trial on the case wherein defendant was tried for aggravated assault upon a peace officer and four counts of felony obstruction of an officer.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A91A1923.
    TAYLOR v. THE STATE.
    (416 SE2d 554)
   Cooper, Judge.

Appellant was convicted in a jury trial of armed robbery and appeals the trial court’s denial of his motion for new trial.

The evidence adduced at trial shows that on September 2, 1989, at approximately 2:45 p.m., two black males entered a small grocery store and robbed the owner at gunpoint, one with a pistol and the other with a shotgun. The men arrived at the store in a blue Chevrolet with a Clay County, Florida, license plate. After the robbery, appellant’s blue Chevrolet with a Clay County, Florida, license plate was found behind the co-defendant’s grandmother’s residence. The victim testified that she got a good look at the men because their faces were not covered and they stood close to her during the robbery. Two days after the robbery, the victim identified both men in a photographic lineup, and the victim positively identified appellant at trial.

1. In his first three enumerations of error, appellant raises the general grounds. Reviewing the evidence in the light most favorable to the verdict, we find there was ample evidence from which a rational trier of fact could find appellant guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court erred in allowing the admission of the photographic lineup into evidence. Appellant maintains that the photographic lineup was impermissibly suggestive because his and the co-defendant’s photographs were different from the other pictures in the lineup, having lighter backgrounds and not showing the height designation present on the other pictures in the lineup. “ ‘Based on the evidence we find nothing which tainted the pre-trial identification by photo spread, and nothing in that identification which would taint (the victim’s) in-court identification of appellant. Whether a subsequent in-court identification is tainted depends on all the circumstances of the case. Conviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Cits.)’ [Cit.] Furthermore, ‘(e)ven if a pre-trial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. (Cit.)’ [Cit.] The victim observed appellant at the scene [and] gave a detailed description to the police immediately following the robbery. . . . Thus, the victim’s identification had an independent origin other than the photo identification. Therefore, we find no error with the trial court’s admission of the photographic identification.” Arnold v. State, 198 Ga. App. 449 (1) (402 SE2d 69) (1991).

3. Appellant enumerates as error the trial court’s denial of his motion for new trial on the ground that he was denied effective assistance of counsel. The alleged deficiency is the failure of appellant’s trial counsel to investigate and present an alibi defense. “ ‘ “To prove he has received ineffective assistance of counsel, ‘(t)he defendant must show both the counsel’s performance was deficient and that this deficiency prejudiced the defense.’ (Cits.) ‘Thus counsel’s performance will not be found to be deficient if it falls within the range of “reasonably effective assistance.” ’ (Cit.)” (Cit.)’ [Cit.] ‘ “ ‘The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.’ (Cit.) As to deficient performance, errors in judgment and tactical errors do not constitute denial of effective assistance of counsel. (Cit.)” (Cit.)’ [Cit.]” Powell v. State, 198 Ga. App. 509, 510 (1) (402 SE2d 108) (1991). Appellant contends that trial counsel neglected to discuss the case with him at sufficient length prior to the trial; that counsel failed in his examination of appellant’s wife at trial to elicit testimony which would have provided an alibi; and that counsel failed to call the wife’s aunt and a host of other family members as alibi witnesses. “The determination as to which defense witnesses will be called is a matter of trial strategy and tactics. ‘Appellant did not subpoena his trial counsel to appear at the hearing on his motion for new trial. Thus, appellant made no affirmative showing that the purported deficiencies in his trial court’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.’ [Cit.]” Harris v. State, 198 Ga. App. 503 (1) (402 SE2d 62) (1991) (reversed on other grounds, 261 Ga. 386 (405 SE2d 482) (1991)). Furthermore, appellant’s wife’s testimony at the hearing on the motion for new trial, in which she attempted to establish that appellant was with her at the approximate time of the robbery, conflicted with her trial testimony in which she demonstrated that she did not know appellant’s whereabouts from the time he left on the morning of the robbery until later that evening. The aunt testified at the hearing that she did not see appellant again after he left on the morning of the robbery, and her testimony as to her knowledge of the events at the approximate time of the robbery conflicted with the wife’s trial testimony. The trial record indicates that trial counsel conducted thorough and sifting cross-examinations of the State’s witnesses, timely interposed objections, presented evidence on appellant’s behalf and made strong arguments to the jury. “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.] The trial court’s finding in the instant case is not clearly erroneous.” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990). Moreover, “there was no showing of a reasonable probability that, but for trial counsel’s alleged deficiencies, the result of the proceeding would have been different. [Cit.]” Id. at 873.

4. Appellant also contends the trial court erred in failing to order a new trial based on evidence presented at the hearing on the motion for new trial that one of the jurors slept through the trial. Appellant testified that he thought counsel was aware of the sleeping juror during the trial but admitted that he did not verbally inform counsel of such until after the verdict was read. “Should a juror fall asleep during the course of a trial it is the duty of the trial judge to awaken him. Should counsel or the parties in a trial observe a sleeping juror it is their duty to bring it to the attention of the court. What a litigant may not do is observe a juror sleeping, fail to bring this to the judge’s attention at a time when corrective action may be had, take a chance on a favorable verdict, and then when the verdict is unfavorable have a mistrial or new trial because of the otiose juror. [Cits.] . . . [Appellant’s] own action denied the court an opportunity to take corrective measures short of a mistrial or new trial and we hold he is not entitled to relief on this appeal.” Foster v. State, 255 Ga. 425 (2) (339 SE2d 256) (1986).

Decided March 5, 1992.

David E. Morgan III, for appellant.

John C. Pridgen, District Attorney, for appellee.

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A91A1962.
    HOLLAND et al. v. HOLLAND HEATING & AIR CONDITIONING, INC.
    (416 SE2d 557)
   Birdsong, Presiding Judge.

Selwyn W. Holland and Holland Electric, Heating & Plumbing Company, Inc., appeal from those adverse parts of a judgment, based upon a jury verdict, in favor of Jack Hively and Holland Heating & Air Conditioning, Inc.

The record shows Holland Electric filed a dispossessory against Holland Heating seeking possession of the rented facilities. Holland Heating counterclaimed for damages and sought and obtained an injunction against Mr. Holland to enforce a covenant not to compete. The injunction was ultimately reversed by our Supreme Court. Holland Electric, Heating & Plumbing Co. v. Holland Heating & Air Conditioning, 259 Ga. 256 (379 SE2d 404).

Later, Holland Electric amended its complaint to assert claims against Mr. Hively, individually, and against Holland Heating, and Holland Heating filed a separate action against Mr. Holland and Barbara Holland. The two cases were later consolidated for trial.

In addition to rulings not relevant to this appeal, the trial court dismissed a claim by Holland Electric and Mr. Holland against Mr. Hively, and after a lengthy trial, the trial court granted directed verdicts on claims both for and against the parties. The jury later returned a verdict awarding damages to Mr. Hively and Holland Heating and awarding damages to Mr. Holland and Holland Electric, and the trial court later entered judgment incorporating the directed verdicts and the jury’s verdict.

Thereafter, Holland Electric filed a motion for reconsideration of the trial court’s direction of a verdict in favor of Holland Heating on a breach of contract claim, and later Mr. Holland and Holland Electric filed a motion for new trial or motion for judgment n.o.v. on all claims. Although denying a new trial or judgment n.o.v. on most claims in one order, the trial court in a separate order granted Hoiland Electric a new trial against Holland Heating on the breach of contract claim.

Although the order granting the new trial contained the following, “pursuant to OCGA Section 9-11-42, the aforementioned claim is hereby severed from the other issues for appellate purposes, and for further trial proceedings,” neither the judgment entered nor any order granting or denying the motions for new trial or judgment n.o.v. contained the determination required by OCGA § 9-11-54 (b): “When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

Nevertheless, Mr. Holland and Holland Electric filed a direct appeal from the trial court’s judgment and denial of their motion for new trial. Mr. Hively and Holland Heating initially filed a direct appeal of the grant of a new trial on the one issue (Case No. A91A1963), but that appeal was subsequently withdrawn. Held:

Our initial consideration is whether we have jurisdiction to consider this appeal. Court of Appeals Rule 32 (d). “It is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” (Citation and punctuation omitted.) Atlantic-Canadian Corp. v. Hammer, Siler &c. Assoc., 167 Ga. App. 257 (306 SE2d 22).

Since a new trial was granted on one of the claims against one of the parties, this appeal is controlled by OCGA § 9-11-54 (b). Chadwick v. Miller, 165 Ga. App. 20, 21 (299 SE2d 93). “Where there is a case involving multiple parties or multiple claims, a decision adjudicating fewer than all the claims or the rights and liabilities of less than all the parties is not a final judgment. In such circumstances, there must be an express determination under OCGA § 9-11-54 (b) or there must be compliance with the requirements of OCGA § 5-6-34 (b) [the interlocutory appeals procedure]. Where neither of these code sections are followed as in this case, the appeal is premature and must be dismissed.” (Citation and punctuation omitted.) Travelers Indem. Co. &c. v. Schenden, 182 Ga. App. 735, 736 (356 SE2d 761).

The record of this appeal shows the judgment and order from which this appeal is taken did not comply with OCGA § 9-11-54 (b) and no application under OCGA § 5-6-34 (b) was granted. Further, the order granting the new trial also did not comply with OCGA § 9-11-54 (b). Although this order is not contained in the record of this appeal, we have the authority to take judicial notice of the order which is contained in the record of Case No. A91A1963 on file in this court. Backus Cadillac-Pontiac v. Ernest, 195 Ga. App. 579 (394 SE2d 367).

Decided March 5, 1992.

Kenneth W. Krontz, for appellants.

Joel E. Dodson, for appellee.

Moreover, the reference to OCGA § 9-11-42 (b) in the order granting the new trial is not sufficient to cure the failure to comply with OCGA § 9-11-54 (b). “OCGA § 9-11-42 (b) seeks to further judicial convenience or avoid prejudice, not to circumvent the requirements of OCGA § 9-11-54 (b), as demonstrated by the provisions of OCGA § 9-11-13 (i) which requires any judgment on an OCGA § 9-11-42 (b) severed cross-claim or counterclaim to be rendered in accordance with the provisions of OCGA § 9-11-54 (b).” Cable Holdings of Battlefield v. Lookout Cable Svc., 173 Ga. App. 355, 356 (326 SE2d 552). Accordingly, the appeal must be dismissed pursuant to OCGA § 5-6-48 (b) (2) and Court of Appeals Rule 32.

Appeal dismissed.

Pope and Cooper, JJ., concur.


author: Sognier, Chief Judge.

text:
    A91A2145.
    CRAWFORD v. THE STATE.
    (416 SE2d 820)
   Sognier, Chief Judge.

Danny Leroy Crawford was convicted of two counts of armed robbery, and he appeals.

1. We find no merit in appellant’s contention that the trial court’s action in response to alleged improper comments by the prosecutor was inadequate because under OCGA § 17-8-75 the trial court was required both to rebuke the prosecutor and to give curative instructions, and in the absence of both actions the trial court should have granted his motion for a mistrial. The only comment contained in the transcript was the comment by the prosecutor that defense counsel’s handling of the opening statement (during which defense counsel apparently called into question every statement made by the prosecution) constituted a “shoddy practice.” The trial court then explained in open court that defense counsel was not implying that the prosecutor was lying but was only expressing that his opinion of the evidence and what the evidence would prove was different from the prosecutor’s opinion. The trial court stated that defense counsel’s argument was proper, and then informed counsel that any further extraneous remarks from anyone would result in the offending party being held in contempt of court.

Even assuming the prosecutor’s comments came within the ambit of OCGA § 17-8-75, the statements made by the trial court fully removed from the minds of the jury the false impression that defense counsel’s opening statement was improper. This court has held that where the trial court fully instructs the jury to disregard the remark, that amounts as well to a rebuke of counsel. Quaid v. State, 132 Ga. App. 478, 483 (208 SE2d 336) (1974). Therefore, we agree with the State that an additional statement rebuking the prosecutor was not necessary here. Id. Further, “ ‘[although some occurrences at trial may be too clearly prejudicial for such a curative instruction to mitigate their effect, the comment in this case is hardly of such character.’ [Cit.]” Id. at 484. Therefore, the trial court did not err by denying appellant’s motion for mistrial.

2. Appellant contends the trial court erred by admitting the taped confession of Geneva Griffin, who was indicted on the same charges but whose trial was severed from that of appellant. Griffin refused to testify at appellant’s trial, invoking her marital privilege as appellant’s common law wife. OCGA § 24-9-23. Notwithstanding the co-indictee’s unavailability for purposes of cross-examination, the trial court admitted Griffin’s confession, made outside appellant’s presence to a police officer after her arrest, in which she stated that she accompanied appellant when he committed the two armed robberies in issue.

The admission of this evidence was error because it violated appellant’s Sixth Amendment right to confront and cross-examine witnesses against him, as well as the provisions of OCGA § 24-3-52. Crowder v. State, 237 Ga. 141 (227 SE2d 230) (1976); Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). We find completely distinguishable the case on which the State relies, Higgs v. State, 256 Ga. 606, 607-609 (2-7) (351 SE2d 448) (1987), in which the Supreme Court affirmed the admission of hearsay evidence consisting of statements by a witness who was unavailable to testify because of marriage to the defendant shortly before trial. The witness in Higgs was not a joint offender and thus the admission of her statements was not prohibited by OCGA § 24-3-52.

However, a violation of a defendant’s Sixth Amendment right of confrontation can be harmless where the evidence of guilt is overwhelming and the minds of an average jury would not have found the State’s case significantly less persuasive had the admitted testimony been excluded. Short v. State, 256 Ga. 172, 173 (3) (345 SE2d 344) (1986). Thus, we turn to the evidence adduced at trial.

To prove appellant’s commission of the first armed robbery in issue, that of a convenience store, the State introduced the testimony of the store cashier who positively identified appellant as the man who robbed her at gunpoint. She testified appellant had been a frequent customer at the store months before the robbery, at which time his appearance had been “clean cut,” and that she noticed his appearance had markedly deteriorated at the time of the robbery. The witness testified she had had no difficulty picking out appellant’s photo from the ten-picture photographic lineup she was shown a month after the robbery. The witness identified State’s Exhibit 14, a pistol, as being similar to the one used by appellant during the robbery. The witness also testified that the woman with appellant left the store before him carrying a 12 pack of beer. Another witness testified that he was outside the store in question at the gas pumps when he saw a woman exiting the store carrying a 12 pack of beer. His attention was drawn shortly thereafter to a man éxiting the store by the sound of metal dropping on the ground. The witness testified he noticed a gun on the ground which was picked up by the man leaving the store. The witness saw the man with the gun and the woman with the beer leave together in a light blue Lincoln Continental, and he testified that the car he saw was similar to the photograph of the car in State’s Exhibit 2. Testimony by police officers established that appellant was apprehended two days after the convenience store robbery while sitting in a van at the home of Griffin’s parents; that the light blue Lincoln Continental depicted in State’s Exhibit 2 was parked in the yard next to the van at that address and belonged to Griffin’s mother; and that the pistol in State’s Exhibit 14 was found in a box in the van along with several pink hair curlers.

The second count charged appellant with armed robbery of a liquor store two days after the convenience store robbery. The cashier in the second incident positively identified appellant as the man who robbed her at gunpoint while accompanied by a woman wearing pink curlers in her hair. The cashier also verified the accuracy of the videotaped recording of the incident made by the store’s security camera and identified the man in the tape as appellant. The videotape, which also had sound, was played for the jury. The tape shown depicted two portions of the robbery; the first showed the robber holding a pistol on the cashier ordering her to hurry the opening of the cash register while a woman in light-colored hair curlers stood near the register; the second showed the robber forcing the cashier to the back of the store at gunpoint, pushing her behind some boxes, then walking directly toward the security camera, at which point the view of the robber was unobstructed. The lighting on the tape was good, the sound distinct, and the focus only slightly blurred. Another witness testified that while walking past the liquor store, he saw a man holding a gun to the cashier’s head and a woman with pink curlers in her hair.

Although as to the second robbery appellant stresses certain discrepancies between the robbery depicted in the videotape and the testimony of the witnesses to that crime regarding the perpetrators’ clothing, we cannot agree with appellant that these minor matters affected the weight of the evidence, which overwhelmingly manifested appellant’s guilt. Therefore, we conclude that the error in the admission of Griffin’s confession in violation of appellant’s Sixth Amendment right of confrontation does not require reversal. Short, supra.

Decided March 5, 1992.

Evans & Ward, Donald E. Evans, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Nancy J. Berger, Assistant District Attorneys, for appellee.

3. Appellant contends the trial court erred by failing to instruct the jury to return a verdict on each armed robbery count. The record does not reflect that appellant requested that the jury be charged on any particular verdict form. The transcript reveals that the trial court in its charge read the indictment to the jury and clearly set forth that appellant was charged with two separate counts of armed robbery. After the jury was charged, a negative response was made to the trial court’s inquiry whether appellant had any objection to the charge and no reservation of the right to object was made. When the jury returned its guilty verdict, the prosecutor expressed doubts whether the verdict covered both counts. The trial court inquired of the jury whether they intended to return a guilty verdict on both counts; the transcript does not reflect a verbal response to the trial court’s question. However, based on the jury’s reaction, the prosecutor inquired whether they should ask the jury foreman “to so endorse that... on the indictment,” which was done.

“Because appellant stated that he had no exceptions when the court made inquiry, he waived his right to raise the issue on appeal. [Cit.] While it is true that this court shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether or not objection was made (OCGA § 5-5-24 (c)), appellant has not shown that the allegedly erroneous [omission] was blatantly apparent and prejudicial to the extent that it raises a question whether he has been deprived, to some extent, of a fair trial. [Cits.]” Maynard v. State, 171 Ga. App. 605, 606 (2) (320 SE2d 806) (1984). Since the record indicates that the trial court clarified the jury’s intentions, there is no merit in appellant’s contention.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A91A2171.
    EALY v. THE STATE.
    (416 SE2d 559)
   Beasley, Judge.

Ealy appeals from the judgment of conviction and sentence for the sale of cocaine in violation of the Georgia Controlled Substances Act, OCGA § 16-13-30 (b). His motion for new trial was denied.

On April 20, 1990, an undercover police officer and confidential informant were dispatched to a pool hall to participate in a controlled undercover purchase of drugs from Clark, who was the owner of the premises and the target of a police investigation. The two approached Clark, who was standing outside the building, and told him they were looking for crack cocaine. After discussion concerning price and quantity, the trio entered the pool hall at Clark’s invitation. The officer observed appellant and an unidentified woman sitting at the bar.

Clark directed the officer and the informant to a back room where he left them alone. After a brief period of time, appellant entered the back room and handed a piece of aluminum foil to the officer. He opened it and observed a “white rock substance [which] appeared to be crack cocaine.” He told appellant that it “looked good” and paid him $250. The officer and the informant left the premises and directly surrendered the contraband to narcotics investigator Tiller.

The undercover officer identified appellant’s photograph in a photographic lineup as the man who had delivered the cocaine. He was arrested approximately two months later.

Appellant and Clark were jointly charged in Count 1 of a two-count indictment with sale of cocaine on April 20, 1990. Only Clark was charged in the second count, with a subsequent sale of cocaine on April 25. Appellant was tried alone on count one. The jury was aware throughout the trial of the existence of the second count and was informed in defense counsel’s opening statement that Clark had entered a negotiated plea.

During the State’s case-in-chief, a forensic chemist with the State crime lab identified State’s exhibit 8 as consisting of 3.1 grams of “crack” cocaine that had been brought to the lab for analysis on April 25, 1990, by narcotics investigator Tiller. Upon receipt of the specimen from Tiller, the chemist labeled it A-90-1463. When asked on cross-examination whether State’s exhibit 8 “is the contraband involved in this case,” the chemist testified that it was. It was admitted although it turned out to be the cocaine relating to Count 2, which charged Clark who was not on trial.

Appellant’s counsel objected to its introduction, asserting that State’s exhibit 8 could not have been the evidence obtained from the April 20 sale involving appellant, because in response to appellant’s discovery requests seeking reports of scientific tests conducted on the contraband, the State had provided information about a quantity of 3.3 grams of crack cocaine labeled A-90-1404, which had been received in the crime lab on April 23, 1990.

After a brief recess, the prosecutor produced State’s exhibit 9, which the chemist identified as 3.3 grams of cocaine that had been brought to him for analysis by investigator Tiller on April 23, 1990. It was labeled A-90-1404. It was admitted over objection based on chain-of-c.ustody.

The State rested and appellant’s counsel moved for a directed verdict of acquittal, asserting that the chemist had incorrectly identified State’s exhibit 8 as the cocaine involving appellant. The trial court denied appellant’s motion.

The State was permitted to re-open its case for the purpose of recalling Investigator Tiller. He again testified that he received the cocaine involved in the April 20 sale from the undercover officer, and that he placed it in his drug locker where it remained until he turned it over to the chemist on April 23. This was the specimen labeled A-90-1404. He stated that the other evidence introduced at trial as State’s exhibit 8 “doesn’t concern [appellant].” Instead, it had been sold by Clark to the undercover officer during a later transaction and “has nothing to do with this case.” The officer testified that there was no confusion in his mind as to which transaction had involved appellant.

On the next day of trial, prior to closing argument, appellant moved for mistrial asserting that the introduction of State’s exhibit 8 constituted evidence of a separate offense which impermissibly placed his character in issue without notice under Uniform Superior Court Rule 31.3. That motion was denied. The trial court ruled that both exhibits 8 and 9, having been admitted in evidence, were to be sent out with the jury.

1. On appeal, appellant contends that the trial court erred in denying his motion for mistrial. The grounds he raises are that the introduction into evidence of State’s exhibit 8, the cocaine which Clark sold on April 25, violated the notice requirement of USCR 31.3 and impermissibly placed his character in issue contrary to OCGA § 24-9-20 (b).

The court instructed the jury that appellant was charged in only one count of the two-count indictment and that the second count contained a charge only against Clark “and does not involve the defendant in this case.” The indictment was provided to the jury during their deliberations. It was clear from the testimony that exhibit 8 related only to the count against Clark.

Exhibit 8 did not constitute evidence of a similar transaction of appellant’s which the State sought to, or did, use against him. The State never suggested, nor would it be inferable from any of the evidence, that appellant was implicated in any way in Count 2. Consequently, adherence to USCR 31.1. and 31.3 was not required because the packet of cocaine from the April 25 sale did not place appellant’s character in issue in violation of OCGA § 24-9-20 (b). Thus there was no call for a mistrial on these grounds. Although the exhibit should have been excluded as irrelevant, its presence in the body of evidence was surplusage.

2. Appellant claims the State failed to show a proper chain of custody adequate to preserve the identity of State’s exhibit 9, the cocaine with which he was charged.

“Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody adequate to preserve the identity of the evidence. [Cit.] The burden is on the State ‘to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.’ [Cits.] The State need not negative every possibility of tampering, and ‘need only establish reasonable assurance of the identity’ of the evidence. [Cit.]” Anderson v. State, 247 Ga. 397, 399 (2) (276 SE2d 603) (1981).

The State showed with “reasonable certainty” that the cocaine offered into evidence as State’s exhibit 9 remained in the custody of law enforcement personnel until taken to the State crime lab and is the same evidence as was sold by appellant on April 20. The State established a proper chain of custody. See Willis v. State, 193 Ga. App. 659 (2) (388 SE2d 869) (1989). Its temporary confusion, at trial, with another packet of cocaine, did not infect the establishment of its chain of custody.

3. The trial court did not err in denying appellant’s motion to disclose the identity of the confidential informant.

On cross-examination, the undercover officer testified that he had no knowledge of the identity of the informant. When counsel continued to inquire in this regard, the trial court ruled that it would not require the witness to reveal the identity of the informant, either by name or description. Counsel objected without specifying the grounds. There was no proffer made of the materiality and necessity for the informant’s testimony. “The trial court must be apprised of the purpose of any inquiry to which the objection is made.” State v. Mason, 181 Ga. App. 806, 812 (4) (353 SE2d 915) (1987). Given the informant’s limited role in the transaction, Clark’s participation, and appellant’s failure to establish prima facie the necessity for disclosure, no further inquiry by the court was required. Smith v. State, 192 Ga. App. 144 (1) (384 SE2d 677) (1989); Statiras v. State, 170 Ga. App. 739 (318 SE2d 156) (1984); Mason, supra.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.

Decided March 5, 1992.

Maureen 0. Floyd, Douglas J. Flanagan, for appellant.

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


text:
    A91A2111.
    LAWTON v. TEMPLE-WARREN FORD, INC. et al.
    (416 SE2d 527)
   Sognier, Chief Judge.

Frank Lawton brought suit against Temple-Warren Ford, Inc. alleging, inter alia, that the dealership defrauded him by selling him a truck represented as a 1984 model when in fact the truck was a 1984 “glider kit” (cab, chassis, front wheels, etc.) built upon an older model truck’s engine, transmission, and rear wheels. Lawton amended his complaint to add as defendants the dealership’s officers and sole stockholders, R. Glen Temple and Ellis Warren. Partial summary judgment on the issue of liability was entered against the dealership. The trial court granted the stockholders’ motion for summary judgment, and Lawton appeals.

Appellant contends the trial court erred by granting appellees’ motion for summary judgment because as shareholders and officers of the dealership, appellees are liable for its misconduct, and questions of fact remain whether the evidence warrants piercing the corporate veil on the basis of either undercapitalization or fraud.

(a) Undercapitalization: Appellant points to the deposition of appellee Temple in which he stated that despite the $1 million initial investment he and appellee Warren put into the dealership, he nevertheless considered the dealership to have been “undercapitalized to start with” because appellees “never thought we were going to ever grow that quick.” Even accepting appellant’s argument that Temple’s statement constituted an admission in judicio that the dealership was undercapitalized, “for undercapitalization of a corporation to justify piercing the corporate veil, it must be coupled with evidence of an intent at the time of the capitalization to improperly avoid future debts of the corporation.” Hickman v. Hyzer, 261 Ga. 38, 39-40 (1) (401 SE2d 738) (1991). There is no evidence of such intent in this case. Nor is there any evidence to controvert appellees’ averrals that Warren withdrew $250,000 of the dealership’s capital to cover problems in another business he was operating rather than for purposes of improperly avoiding future debts of the dealership. We note that although appellant alleged in his amended complaint that the dealership has ceased doing business and that appellees removed all of the corporate assets from Georgia, there is no evidence that appellees ceased doing business for any reason other than the fact that the dealership had been failing for many months. Nor does the record disclose any evidence that appellees removed the corporate assets from Georgia in order to strip the dealership of assets necessary to pay existing debts. Id. at 40 (2).

(b) Fraud: We agree with appellant that the type of undercapitalization discussed in Hickman, supra at 39-40 (1) provides only one rationale for piercing the corporate veil, e.g., Marett v. Professional Ins. Careers, 201 Ga. App. 178, 180-181 (1) (b) (410 SE2d 373) (1991) (corporation as alter ego of individual; commingling personal and corporate assets), and that the separateness of the corporate entity will be disregarded to remedy injustices which arise where a party has overextended his privilege in the use of a corporate entity in order to perpetrate fraud or to avoid tort responsibility. Commonwealth Financial Corp. v. Sherrill, 197 Ga. App. 403, 404 (398 SE2d 438) (1990). However, we do not agree with appellant’s second argument that the fact the dealership’s liability for defrauding him has been legally established automatically entitles him to recover damages for that fraud from appellees. “ ‘A corporation possesses a legal existence separate and apart from that of its officers and shareholders so that the operation of a corporate business does not render officers and shareholders personally liable for corporate acts. (Cit.)’ [Cit.]” Id. at 403 (1). “A corporate officer ‘who takes part in the commission of a tort by the corporation is personally liable therefor, but an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or cooperated therein (or if he disregarded the corporate form so as to authorize piercing of the corporate veil).’ . . . [Cit.]” Fussell v. Jones, 198 Ga. App. 399-400 (1) (401 SE2d 593) (1991).

The record in the case sub judice contains appellees’ statements in their affidavits and depositions that they were not involved in any way in the sale of the truck to appellant and that they had no knowledge that appellant was not fully informed by the dealership’s sales personnel that he was purchasing a glider kit truck with an older model engine. Appellees also deposed that in the regular course of the dealership’s business they did not supervise the manner in which sales by the dealership’s sales personnel were transacted and were not involved in the routine handling of the paperwork of these sales.

We do not agree with appellant that evidence showing that Temple knew and Warren may have known that the truck in issue was a glider kit truck constitutes evidence contradicting appellees’ statements that they did not know that the nature of the truck had been misrepresented to appellant by others. Appellant adduced no evidence controverting appellees’ averrals that they were personally ignorant of the fraud perpetrated on him by the dealership’s employees. Compare Wrigley v. Nottingham, 111 Ga. App. 404, 406 (141 SE2d 859), rev’d in part on other grounds, Nottingham v. Wrigley, 221 Ga. 386 (144 SE2d 749) (1965) (corporate officer may not escape personal liability for his tortious misconduct by hiding behind corporate veil). There is thus no evidence that appellees personally committed or specifically directed the commission of the fraudulent act. See Fussell, supra at 400 (1). Nor can the inference be drawn from the evidence of record that appellees’ ignorance was the result of some internal operating procedures in the dealership deliberately instituted earlier by appellees for the purpose of shielding themselves from liability after indirectly instructing or encouraging the dealership’s employees to defraud appellant. In other words, there was no evidence that the use of the corporate entity by appellees was a subterfuge or that appellees employed the separateness of the corporate entity with the intent to avoid personal liability for fraudulent acts they knew would be perpetrated by corporate subordinates.

Decided February 20, 1992

Reconsideration denied March 6, 1992

Clarence L. Martin, for appellant.

Inglesby, Falligant, Horne, Courington & Nash, Kathleen Horne, Stein & Cauthen, James E. Stein, for appellees.

Although appellant averred in his affidavit that upon talking to appellee Temple after purchasing the truck, Temple agreed to get him another truck, appellant does not allege that this representation was fraudulent and did not adduce any evidence to rebut Temple’s sworn statements that he looked for a truck but was unable to find one in a price range that appellant could afford.

Therefore, it appears there is no evidence that at the time of its capitalization, appellees intended to undercapitalize the dealership to improperly avoid future debts of the corporation, see Hickman, supra at 39-40 (1), and no evidence that appellees were hiding behind the corporate entity of the dealership in order to insulate themselves either from a fraud they themselves were perpetrating on appellant or from a fraud they knew or encouraged others to perpetrate on him. See Fussell, supra at 400 (1). Given that the undisputed facts demonstrate no abuse of the corporate form, the record shows no issue of fact for the jury regarding piercing the corporate veil, and summary judgment was properly entered in favor of appellees. Hickman, Fussell, supra.

Judgment affirmed.

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


text:
    A91A2123.
    STINSON v. THE STATE.
    (416 SE2d 765)
   Beasley, Judge.

Stinson appeals his convictions for operating a vehicle while having a blood alcohol concentration of 0.12 grams or more, former OCGA § 40-6-391 (a) (4), and operating a vehicle with a defective headlight, OCGA § 40-8-20.

Defendant was stopped at 11:26 p.m. by a Georgia State trooper, who observed that one of the headlights on the vehicle he was operating was not illuminated. Defendant exited his car and walked to the patrol car parked behind his. The trooper observed him to be unsteady on his feet and detected a strong odor of alcoholic beverage about him. An Alcosensor test proved positive. Defendant was arrested, implied consent warnings were given, and he was transported to the sheriff’s office. At 12:15 a.m., he took an Intoximeter 3000 test which registered 0.12 grams. Approximately five to ten minutes later, a duplicate test was administered at defendant’s request, revealing identical results.

1. It was not error to deny defendant’s pretrial motion to independently examine and test the Intoximeter 3000 computer program. Independent testing of the machine could not establish that defendant’s results were inaccurate since the original testing conditions, including defendant’s physical state, could not have been duplicated. Blanos v. State, 192 Ga. App. 835, 836 (1) (386 SE2d 714) (1989). Although “[a]n accused may always introduce evidence of the possibility of error or circumstances that might have caused the machine to malfunction,” Lattarulo v. State, 261 Ga. 124, 126 (401 SE2d 516) (1991), defendant was not denied that right by the court’s refusal to allow him to test the machine.

2. Defendant asserts the court erred in denying his motion in limine seeking to prevent the State from introducing the results of the tests performed on the Intoximeter 3000 machine for failure to satisfy the foundation requirements of OCGA § 40-6-392 (a) (1). “[T]he admissibility of breathalyzer test results is controlled solely by OCGA § 40-6-392 . . . ,” Brannan v. State, 261 Ga. 128, 129 (401 SE2d 269) (1991), which statute requires that chemical analysis be “performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose.” OCGA § 40-6-392 (a) (1).

The officer who administered the tests was authorized by the State of Georgia to perform chemical analyses utilizing the Intoximeter Breath Analyzer 3000 machine. His certification permit was admitted into evidence without objection. He testified that the machine was “fully operational” prior to testing defendant. OCGA § 40-6-392 (a) (3) was satisfied. Brannan, supra; Fowler v. State, 200 Ga. App. 505 (408 SE2d 449) (1991).

Decided February 19, 1992

Reconsideration denied March 6, 1992

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Anne C. Allen, for appellant.

3. The test results were not excludable, as asserted by defendant, because the examiner failed to wait 20 minutes between defendant’s arrest and the first test and then again by not waiting 20 minutes between the first and second test. Defendant offers no authority for this proposition. See State v. Richardson, 186 Ga. App. 888, 889 (1) (368 SE2d 825) (1988), which discusses “the so-called ‘twenty-minute rule.’ ” The record nevertheless reveals that at least 45 minutes had elapsed between the traffic stop and the first test. As to the second test, defendant presents no rationale for excluding the results for failing to require a second delay of 20 minutes prior to administering this test, which was done at defendant’s request.

Admission of the test results does not unconstitutionally shift the burden of proof from the State to the defendant. Brannan, supra at 129 (2).

4. In the absence of an objection below, we do not reach the argument that the accusation was fatally defective because it failed to specify the manner in which OCGA § 40-6-391 was violated. Moreover, the defendant made an evidence-based motion for directed verdict on all four subsections, and the State pointed out that the words of the accusation excluded subsections (a) (2) and (a) (3) by charging only alcohol. The State conceded at that time that it was traveling solely under subsection (a) (4) of OCGA § 40-6-391. The evidence was sufficient to support a verdict of guilty of that specific offense.

5. Defendant asserts that his sentence is erroneous insofar as he was required to surrender his driver’s license under OCGA § 40-5-67 (c) (1) because that Code section became effective subsequent to the date of his offense. Any such error in sentencing was rendered harmless by the fact that the law in effect at the time of the commission of the crime, former OCGA § 40-5-69, Ga. L. 1983, p. 1000, § 1, also mandated the surrender of a driver’s license upon conviction of violating OCGA § 40-6-391.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.

Donald W. Huskins, Solicitor, for appellee.


author: Andrews, Judge.

text:
    A91A2139.
    DAVIS v. THE STATE.
    (416 SE2d 771)
   Andrews, Judge.

Davis was found guilty by a jury of burglary and appeals his conviction.

Construed in favor of the verdict, the evidence shows that at approximately 11:50 p.m. the City of Smyrna police responded to a call from a citizen reporting that a burglary had just occurred or was in progress at his residence. Within five minutes of receiving the call, one police officer arrived at the residence, and another officer arrested Davis about a half mile from the residence. As an officer patrolling in the immediate area responded to the reported burglary, he saw Davis walking away from the direction of the burglary along the side of a road about a half mile from the residence. As he passed by, the officer noticed that Davis was carrying a loaded bag over his shoulder. The officer stopped his car to investigate. It was a warm summer night, and the officer observed that Davis was holding a pair of leather gloves in one hand, was wearing sweatpants, and was sweating profusely. Davis stopped when the officer approached him, but he failed to respond when the officer questioned him about his activity. The officer testified that the bag Davis carried was open at the top allowing him to observe numerous items in the bag which were later identified as having been stolen in the burglary. Based on these observations, the officer arrested Davis. A search of the bag produced the items stolen from the burglarized residence. After being given his Miranda rights, Davis denied any involvement in the burglary. He told police that he had been out jogging, and a man ran by and dropped the bag on the ground. The defendant’s sister, with whom Davis lived, testified that Davis left her residence at about midnight on the evening of the burglary to go jogging.

1. Davis first claims that the police officer illegally arrested him without a warrant, and that the trial court erred by denying his motion to suppress evidence obtained as a result of the arrest. OCGA § 17-4-20 (a) provides that “[a]n arrest for a crime may be made by a law enforcement officer . . . without a warrant if the offense is committed in his presence or within his immediate knowledge; if the offender is endeavoring to escape ... or for other cause if there is likely to be failure of justice for want of a judicial officer to issue a warrant.” “The constitutional validity of an arrest without a warrant depends upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at the moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense.” (Punctuation and citation omitted.) Manzione v. State, 194 Ga. App. 227, 228-229 (390 SE2d 121) (1990).

Davis was stopped around midnight within minutes of the reported burglary, a half mile from the scene, and he would not respond to the officer’s questions. He was sweating heavily, carrying a pair of leather gloves on a summer night, and was carrying a bag which the arresting officer testified he could observe was loaded with numerous items including a checkbook bearing the address of the burglarized residence. It is unclear whether the officer saw the address on the checkbook before or after the defendant was arrested and the bag was searched. Although some of this testimony was adduced at trial and not at the suppression hearing, in considering whether there was probable cause for the arrest, we consider all the relevant evidence of record. Sanders v. State, 235 Ga. 425, 431-432 (219 SE2d 768) (1975), cert. den. 425 U. S. 976; Jones v. State, 187 Ga. App. 421, 422-423 (370 SE2d 784) (1988). These circumstances were a sufficient basis for probable cause to arrest Davis. The subsequent search of the bag containing the items stolen in the burglary was a lawful search incident to the arrest. Laws v. State, 180 Ga. App. 528, 529 (349 SE2d 478) (1986). There was no error in the trial court’s denial of the motion to suppress.

2. Davis claims the jury verdict was contrary to the weight of the evidence. The weight to be accorded the evidence is a task for the jury which determines the credibility of witnesses and resolves conflicts in the evidence. This Court does not reweigh the evidence, but determines if it is legally sufficient to enable a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Dobbs v. State, 199 Ga. App. 793, 795 (406 SE2d 252) (1991). The defendant’s recent possession of the stolen goods, along with his refusal to respond to the officer’s questions, his proximity to the burglary at the time it occurred, and the leather gloves he carried, were sufficient to enable a rational juror to find the defendant guilty beyond a reasonable doubt. Bankston v. State, 251 Ga. 730 (309 SE2d 369) (1983); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. In his third enumeration of error, Davis claims that in closing argument the prosecutor improperly commented on his right to remain silent. Defense counsel made no objection at trial to the alleged improper argument, therefore the enumerated error is not properly before us for review. Hall v. State, 180 Ga. App. 881, 882-883 (350 SE2d 801) (1986).

4. Davis asserts two grounds upon which he claims that his trial counsel provided ineffective assistance. Davis was represented by new counsel on appeal, who filed a motion for new trial. The first ground asserted was not raised in the motion for new trial, and is deemed waived because it was not raised at the earliest practicable moment. Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987).

The second ground alleged is that the trial attorney failed to request the trial court to instruct the jury that they could consider convicting the defendant of the crime of theft by receiving stolen property. This ground was raised by appellate counsel in the motion for new trial, and denied at a hearing before the trial judge. Although no evidence was produced at the hearing, and trial counsel was not heard on the issue of his representation, this ground is one which may be resolved without such testimony by reference to evidence in the record. See Dawson v. State, 258 Ga. 380, 381 (369 SE2d 897) (1988).

There is no merit to the claim that trial counsel should have requested a charge on theft by receiving stolen property. Davis was indicted only on the charge of burglary. Theft by receiving stolen property is not a lesser included offense of burglary, so there would have been no error in refusing such a charge. Faust v. State, 189 Ga. App. 426, 427 (375 SE2d 889) (1988). “A defendant is not entitled to an instruction on an offense for which he is not being tried, and which is not a lesser included offense of the one he is defending.” Ford v. State, 201 Ga. App. 382 (411 SE2d 334) (1991).

5. The defendant argues that, even in the absence of a request, the trial court was required to instruct the jury on the offense of theft by receiving stolen property because it constituted one of his defenses to the burglary charge. For the reasons stated in Division 4, above, there was no error in failing to give this charge. Moreover, Davis did not claim that he was guilty of receiving stolen property rather than burglary, nor did his trial counsel make this argument to the jury. The primary defense made by Davis, who did not testify at trial, was presented in alibi testimony from his sister to the effect that he was at their residence when the burglary occurred. The jury was properly instructed on the elements of the charged offense of burglary, and Davis was not deprived of the opportunity to present his defenses. Ford, supra at 383.

6. Davis claims the trial court erred in not re-opening the evidence, at the jury’s request, to allow introduction of testimony given by the defendant’s sister at the defendant’s pre-trial preliminary hearing. After beginning their deliberations, the jury asked to be informed of the preliminary hearing testimony of the defendant’s sister regarding what time the defendant left their residence on the night of the burglary. Though trial testimony revealed that the defendant’s sister had testified at a previous hearing, the substance of that testimony was not a part of the record at trial. The trial judge refused the jury’s request and the defendant’s subsequent motion seeking to reopen the evidence. The defendant’s sister had already testified at trial that the defendant left their residence at about midnight. She gave the same testimony at the preliminary hearing, and the State did not claim or infer at trial that she had testified differently at the preliminary hearing. The trial court did not abuse its discretion in refusing to re-open the evidence. State v. Roberts, 247 Ga. 456 (277 SE2d 644) (1981).

Decided February 20, 1992

Reconsideration denied March 6, 1992

Lauren L. Becker, for appellant.

Randy K. Davis, pro se.

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

7. For the reasons stated in the preceding divisions, there was no error in the denial of the defendant’s motion for new trial.

Judgment affirmed.

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


text:
    A91A2175.
    THE STATE v. THURMOND.
    (416 SE2d 529)
   Sognier, Chief Judge.

Stewart Michael Thurmond was arrested and charged with failure to yield and leaving the scene of an accident. He filed a motion in limine to exclude statements he made to police incident to his arrest. The State appeals from the grant of this motion.

At the motion hearing, Fulton County Police Officer Cruz testified that at approximately 2:30 a.m. on July 21, 1990 he responded to a call concerning a hit and run accident in north Fulton County. The accident victim informed him that she had followed the car which struck hers until she could observe the tag number. Cruz traced the tag number to an address and dispatched another officer to the house at that address to watch for a car matching the victim’s description. When he received word about 30 minutes later that a car with the license plate at issue and meeting the victim’s description was parked in the driveway, he met two officers at the scene. They observed that the front of the car had been damaged and noticed paint on the car that appeared to have been transferred from another vehicle. Cruz determined by touching the hood that the engine was still warm. Cruz testified that he and the other officers then knocked on both the front and back doors and shone their flashlights into the house, where they observed people inside the house trying to dodge the lights. Eventually a young man came to the door, and in response to Cruz’s inquiry stated that he was a visitor and that the car did not belong to him. Cruz testified that when he informed the visitor that he intended to impound the car if he could not locate the owner, appellee appeared at the door and stated that the car belonged to his father. Appellee then stepped outside to examine the car and upon further questioning by Cruz admitted he had been driving the car. Cruz then arrested appellee, read him his rights, and asked him additional questions, about the incident.

Appellee, the only other witness at the hearing, gave a conflicting version of the events. He testified that he was awakened by his houseguest and went to the door clad only in underwear and a towel. He stated that another officer at the scene, not Cruz, asked his name and told him in a “forceful” voice to step outside, and that this officer placed his hand on appellee’s arm to escort him outdoors. Appellee stated the officer then asked appellee whether he had been driving the car. Upon receiving an affirmative answer, the officer escorted appellee back into the house and allowed him to dress before advising him he was under arrest. Appellee testified that he did not feel he was free to decline to talk to the officers or to accompany them outside. He did not recall having been told that the car would be impounded if the driver was not found, and he did not know whether his houseguest had spoken to the officers.

Appellee based his motion in limine on his argument that the warrantless arrest was invalid because it did not fall within any of the exceptions delineated in OCGA § 17-4-20 (a). On appeal, the State contends that the arrest was nonetheless legal because it met the federal law standard of probable cause. We agree and reverse.

Our courts have held that a warrantless arrest legal under federal law — that is, one made on the basis of probable cause — is legal under state law, and that the requirements of OCGA § 17-4-20 (a) and federal law are the same. Durden v. State, 250 Ga. 325, 326-327 (1) (297 SE2d 237) (1982). “Under this standard an arrest is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed . . . an offense. [Cit.]” Id. at 326 (1).

Since the trial court did not make findings of fact, we cannot determine which witness’s version of the events the court found more credible. However, even assuming, but not deciding, that appellee’s account of the events was correct, and assuming further that the officers’ actions resulted in a seizure of appellee, we find no impermissible conduct that would taint the subsequent arrest. The Fourth Amendment authorizes police to make brief seizures of citizens if based on an articulable suspicion that the law has been violated. E.g., Verhoeff v. State, 184 Ga. App. 501, 503 (362 SE2d 85) (1987); Allen v. State, 140 Ga. App. 828, 830-831 (232 SE2d 250) (1976). “[W]hat is a ‘reasonable articulable ground’ for the detention may be less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment. [Cit.] Each case depends on its own facts.” Allen, supra at 830. Here, the officers had been informed that a hit and run accident had occurred and that the alleged offending driver had been driving a car whose tag number and description matched that of the car in appellee’s driveway. They had reason to believe that the car they observed had been driven recently and to conclude that the occupants of the house were attempting to avoid being seen by the officers. Also, the other occupant of the house informed them that he had not been driving the car, and he called appellee to the door in response to the officers’ inquiries. Under the totality of the circumstances, we hold the officers had an articulable suspicion for detaining appellee briefly to determine whether he had been driving the car at the time of the accident. See id. at 829-831 (1); see also State v. Turntime, 170 Ga. App. 740, 742-743 (318 SE2d 157) (1984).

Decided February 20, 1992

Reconsideration denied March 6, 1992

James L. Webb, Solicitor, Helen A. Roan, R. Lee O’Brien, Jr., Assistant Solicitors, for appellant.

Guy E. Davis, Jr., for appellee.

Given that this brief detention of appellee was permissible, once appellee admitted driving the car at the time of the accident the officers then had probable cause to arrest him. See Hall v. State, 200 Ga. App. 585-587 (1) (409 SE2d 221) (1991); Smith v. State, 188 Ga. App. 574-576 (1) (373 SE2d 800) (1988). Further, since the officers had probable cause to arrest appellee for the charged offenses, his arrest outside the premises of his home was constitutionally permissible. Smith, supra at 576 (1). Accordingly, we hold the trial court erred by granting appellee’s motion in limine.

Judgment reversed.

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