text:
    A97A1693.
    McLEMORE et al. v. SOUTHWEST GEORGIA FARM CREDIT, ACA.
    (495 SE2d 335)
   Smith, Judge.

Southwest Georgia Farm Credit, ACA brought suit against Bill and Cindy McLemore on a note. The McLemores answered, raising several defenses, including fraud and misrepresentation. The trial court granted Farm Credit’s motion for summary judgment and the McLemores appeal. We agree with Farm Credit that no genuine issues of material fact remain for jury resolution, and we therefore affirm the judgment.

The record shows that in January 1994 the McLemores borrowed $277,900 from Farm Credit to purchase farm property in Marion County, signing a promissory note and pledging as security both the farm property and their residence in Columbus. The note called for an interest-only payment on July 1, 1994 and semi-annual payments of principal and interest on January 1 and July 1 of each year thereafter. The security deed required the McLemores to purchase and retain insurance coverage on the farm acreage and buildings, naming Farm Credit as loss payee.

In May 1995, the McLemores’ insurance coverage for the farm property lapsed. In October 1995, the McLemores contracted with a third party to sell the farm property for the outstanding balance on the loan. When Farm Credit learned in November 1995 that the McLemores had allowed the insurance policy covering the farm to lapse, Farm Credit purchased and paid for replacement coverage. The McLemores did not make the January 1, 1996 semi-annual payment, and Farm Credit accelerated the note.

Several of the farm buildings were damaged extensively by a storm in March 1996. Farm Credit made a claim under the policy it had purchased. The insurance proceeds checks were made out to both Farm Credit and Bill McLemore as payees, and McLemore endorsed the checks. Farm Credit applied these proceeds to the delinquent loan. Farm Credit then sought the balance of the indebtedness from the McLemores. When it was not paid, Farm Credit brought this suit, seeking the remainder of the principal, interest, and attorney fees as permitted by the note.

1. The McLemores contend the trial court erred in entering summary judgment against them because genuine issues of material fact remained regarding whether Farm Credit made material misrepresentations that prevented them from paying off their debt by selling the farm. They argue that the security deed gave them the right to elect to apply insurance proceeds to repairs of covered structures and that Farm Credit represented to Bill McLemore that the insurance proceeds would be applied to such repairs in order to obtain McLemore’s endorsement on the checks, even though Farm Credit had no intention of allowing the proceeds to be used for that purpose.

We note initially the security deed’s provision that insurance proceeds may be used for reconstruction of destroyed or damaged covered property at the option of the insured “[s]ubject to the rules and regulations of lender.” Farm Credit’s written rules and regulations provide that it may elect to turn insurance proceeds over to the insured, use proceeds to pay down or satisfy the loan, advance the proceeds as repairs or construction are completed, or any combination thereof.

The record shows, and the parties agree, that William M. Wills, principal loan officer for Farm Credit, took the checks on July 3, 1996, to Bill McLemore’s place of business in Columbus to obtain McLemore’s endorsement. The parties disagree, however, as to whether Wills told McLemore that the proceeds would be made available to repair the farm structures. Wills stated in an affidavit submitted in support of Farm Credit’s motion for summary judgment that no such representations were made; in fact, shortly before receiving the checks representing the insurance policy proceeds, he wrote to the McLemores and informed them specifically that the proceeds would be applied to their delinquent loans. A copy of that letter was attached to the motion for summary judgment. Wills also stated in his affidavit that he told Bill McLemore again when he took the checks to Columbus for endorsement that the proceeds would be applied to the loan, and that he provided the McLemores with documentation after the fact that this had been done.

In opposition to the motion for summary judgment, the McLemores submitted their own affidavits, in which they stated they never received either the letter informing them that the proceeds would be applied to the loan or the documentation showing that the proceeds had been applied to the loan. Bill McLemore also stated in his affidavit that before he agreed to endorse the checks on July 3, 1996, he asked Wills specifically whether the proceeds would be made available for repairs to the farm buildings and that Wills replied “ ‘that will be no problem.’ ” McLemore stated that because he knew that the proposed sale of the farm property was contingent upon repairing the damaged buildings, he endorsed the checks only after receiving Wills’s express assurance that the insurance proceeds could be used for repairs. McLemore insisted that the first notice he received that Farm Credit had applied the insurance proceeds to his loan was from his attorney in late July 1996, when the attorney told him he had talked with Wills and had learned about Farm Credit’s application of the insurance proceeds to the loan. It is apparent, therefore, that a factual dispute exists regarding whether Wills made the representation.

But this dispute is not material. The McLemores admitted they borrowed the money, signed the note, and defaulted. This established a prima facie case for Farm Credit. Phillips v. Plymale, 191 Ga. App. 338, 340 (1) (381 SE2d 580) (1989). Having established this, Farm Credit was entitled to judgment unless the McLemores established a valid defense. Commonwealth Land Title Ins. Co. v. Miller, 195 Ga. App. 830, 833 (395 SE2d 243) (1990). The McLemores’ contentions regarding Wills’s representations do not establish such a defense. Their allegations rest upon alleged oral representations. “It is a well established rule that in the absence of fraud, accident or mistake, parol evidence cannot be considered to alter or vary the terms of a promissory note. [Cit.]” Marchman Oil &c. Co. v. Southern Petroleum Trading Co., 167 Ga. App. 691 (1) (307 SE2d 509) (1983). The McLemores’ obligation to pay, evidenced by the note, was unconditional. Unless they showed a valid defense to this unconditional obligation, Farm Credit needed to show no more.

Although the McLemores attempted to raise the defense of fraud, their attempt failed for several reasons. First, “the only fraud which would relieve a party from an obligation which he has signed, where that party can read and write and is not otherwise under any disability, is that fraud which prevents him from reading what he signed. [Cit.]” Id. The McLemores were not prevented from reading the note. Second, the representations claimed to be fraudulent pertained to Farm Credit’s conduct in the future. A claim of fraud cannot be based upon statements that promise future action. Id.

Because the McLemores failed to raise a valid defense, Farm Credit was entitled to judgment on the note, and the trial court properly entered summary judgment in favor of Farm Credit.

2. The McLemores also contend that summary judgment was improper because genuine issues of material fact remained regarding whether a quasi new agreement was formed between the parties for satisfying the McLemores’ debt by effecting the sale of the farm property. We do not agree.

We find nothing in the record suggesting that the McLemores raised this ground below. Nevertheless, on appeal of the grant of summary judgment, we review the evidence de novo to determine whether any genuine issues of material fact exist and whether the movant was entitled to judgment. Tollman v. Zamani, 224 Ga. App. 518, 519 (481 SE2d 232) (1997). We therefore address this enumeration.

Even if the McLemores are correct that Farm Credit was aware of the contract for the sale of the property, no showing was made that any new agreement was created between Farm Credit and the McLemores. The McLemores’ speculation that Farm Credit refrained from foreclosing or initiating collection efforts because of the sale is just that — speculation. No evidence was presented showing the reasons Farm Credit waited to collect the debt, nor was any required.

Moreover, no showing was made that the failure to apply the insurance proceeds to repair the March 1996 damage caused the failure of the sale to close. Evidence was presented that the prospective purchaser failed to complete the transaction for several reasons, including damage to the property sustained after the McLemores allowed their insurance coverage to lapse but before replacement coverage was purchased by Farm Credit. This damage would not have been covered by the insurance proceeds even had these proceeds been applied to repairing the property. The trial court did not err in granting summary judgment on this ground.

Judgment affirmed.

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

Decided January 6, 1998.

Jerry D. Sanders, for appellants.

Kirbo & Kendrick, David A. Kendrick, for appellee.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A97A2140.
    HILL v. THE STATE.
    (495 SE2d 333)
   Smith, Judge.

Robert Wade Hill was charged by accusation with one count of driving under the influence of alcohol and one count of improper lane change. He was convicted by a jury oh both counts. He appeals, asserting as his sole enumeration of error the trial court’s admission of a 1992 guilty plea to DUI as a similar transaction. The trial court found the previous DUI sufficiently similar and ordered that it would be “admissible as evidence of a similar transaction to show bent of mind and course of conduct.” We agree and affirm.

“Unlike assault or robbery or other crimes against the person or property of a victim . . . which can be committed under varying factual circumstances, the crimes of driving after having been declared an habitual violator and driving under the influence are essentially committed under the same factual circumstances. The type of vehicle driven or the degree or source of intoxication may vary, but it is the simple act of driving while having the status of an habitual violator or while under the influence that establishes the commission of those crimes. A prior act of driving while having that status or while in that condition would, regardless of any slight variance of circumstances, be relevant to prove bent of mind or course of conduct. [Cits.]” Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638) (1992).

The trial court relied on Kirkland to admit the earlier DUI, noting that “the DUIs can be different. They don’t have to be and they can’t possibly be exactly the same.” The trial court found that the incidents “are sufficiently similar so that the proof of the former tends to prove the latter.” Moreover, as noted by the prosecutor in her offer of proof, the details of the two incidents show additional similarities. The earlier incident occurred in East Ellijay, Georgia, in 1992. At 11:12 p.m., Hill was stopped after a police officer observed him speeding and weaving as he attempted to change lanes. The officer testified that Hill smelled of alcohol, had bloodshot eyes, and swayed when he walked. He told the officer that he had “had two or three”; he failed several field sobriety tests, including the horizontal gaze nystagmus and alco-sensor test.

In this incident, which occurred in 1994, Hill was stopped at 11:59 p.m. in Roswell, Georgia. Hill was driving the same vehicle as in the 1992 incident. The officer observed Hill weaving, stopped the vehicle, and found that Hill smelled strongly of alcohol, was unsteady on his feet, and had bloodshot eyes. He told the officer he had had four beers. He failed several field sobriety tests (although he successfully completed the first of three) and the alco-sensor was positive for the presence of alcohol.

Decided January 6, 1998

Reconsideration dismissed March 20, 1998.

Larry W. Yarbrough, for appellant.

Carmen Smith, Solicitor, Fay I. McCormack, Cynthia G. Strong-McCarthy, Assistant Solicitors, for appellee.

The lapse of time between the incidents, approximately two years, is not sufficient to render the first incident inadmissible. “As we have previously found, where ‘similar transaction’ evidence has been admissible otherwise, lapses of time of 11 years and of 19 years have not demanded that the evidence was inadmissible.” (Citations and punctuation omitted.) Guinn v. State, 224 Ga. App. 881, 883 (1) (a) (482 SE2d 480) (1997) (DUls five and six years earlier). Nor does a distance of fifty miles between the sites of the incidents render the earlier one inadmissible. See Goodwin v. State, 222 Ga. App. 285, 287 (474 SE2d 84) (1996) (“That appellant was in a different car and county does not negate the relevance of the prior DUI, as slight variances are comprehended by Kirkland”).

Contrary to Hill’s contention, the fact that the arresting officers administered different field sobriety tests is not dispositive as to the similarity of the incidents. Such a difference goes to what the officers chose to do, not Hill’s course of conduct, bent of mind, or intent. The trial court did not err in admitting evidence of the circumstances surrounding Hill’s 1992 guilty plea as a similar transaction.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

       In her offer of proof, the prosecutor mistakenly stated that the incident on trial occurred at 9:59 p.m., but the difference in time remains approximately one hour.


author: McMurray, Presiding Judge.

text:
    A96A1890.
    MITCHELL v. THE STATE.
    (498 SE2d 175)
   McMurray, Presiding Judge.

The Supreme Court of Georgia having reversed the judgment of this Court in Mitchell v. State, 225 Ga. App. 520 (484 SE2d 271), this Court’s judgment is hereby vacated and the judgment of the Supreme Court of Georgia in Mitchell v. State, 268 Ga. 592 (492 SE2d 204) is made the judgment of this Court.

Decided January 7, 1998.

Timothy T. Herring, for appellant.

Tommy K. Floyd, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

Judgment reversed.

Johnson and Ruffin, JJ, concur.


text:
    A97A2043.
    A97A2044.
    A97A2045.
    FLORENCE v. GREEN ACRES MOBILE HOME ESTATES, INC. HAMES et al. v. GREEN ACRES MOBILE HOME ESTATES, INC. SEAY v. GREEN ACRES MOBILE HOME ESTATES, INC.
    (495 SE2d 346)
   McMurray, Presiding Judge.

The trial court granted Green Acres Mobile Home Estates, Inc. (“the landlord”) a writ of possession against Vicki L. Florence, a writ of possession against Thomas Seay, and a writ of possession against Jamie Hames and Christy Hames. Florence filed an appeal, pro se, in Case No. A97A2043; Jamie Hames and Christy Hames filed an appeal, pro se, in Case No. A97A2044, and Seay filed an appeal, pro se, in Case No. A97A2045. These appeals were docketed in this Court as companion cases. Held:

Case No. A97A2043

1. Vicki L. Florence’s appeal in Case No. A97A2043 was docketed in this Court on June 2, 1997, thereby requiring her to file an enumeration of errors and brief in this Court by June 23, 1997. Because Florence did not file an enumeration of errors and brief by June 23, 1997, this Court entered an Order on July 11, 1997, directing her to file an enumeration of errors and brief no later than July 16, 1997. Vicki L. Florence has not complied with this Order. Consequently, her appeal in Case No. A97A2043 is dismissed pursuant to Rule 26 (a) of the Rules of the Court of Appeals of Georgia.

Case No. A97A2044

2. Jamie Hames and Christy Hames contend, in Case No. A97A2044, that the trial court erred in granting the landlord a writ of possession because they tendered their rent pursuant to OCGA § 44-7-52, because they did not breach their lease agreement and because the landlord did not give them proper notice of this dispossessory action. None of these assertions are supported by the record.

Decided January 7, 1998.

Vicki L. Florence, pro se.

Jamie and Christy Hames, pro se.

“ ‘There is a presumption that the judgment below was correct. Williams v. Wilhoit, 142 Ga. App. 4 (234 SE2d 860). It is the burden of the appellant in asserting error to show it by the record. Smith v. Forrester, 132 Ga. App. 426 (208 SE2d 199).’ Witlen v. Witlen, 149 Ga. App. 88, 89 (253 SE2d 450). Every presumption of legality will be made in favor of a judgment by a court of competent jurisdiction and it will be presumed it is supported by every fact essential to make such judgment valid and binding. Merrill Lynch &c., Inc. v. Echols, 138 Ga. App. 593, 594 (226 SE2d 742).” Wetherington v. Koepenick & Horne, Inc., 153 Ga. App. 302, 304 (2) (265 SE2d 107).

There is nothing in the record in Case No. A97A2044 which supports Jamie Hames’ and Christy Hames’ contentions. The record only includes pleadings, a notice of hearing, the sheriff’s entry of service and the trial court’s judgments for a writ of possession and for unpaid rent. Jamie Hames and Christy Hames did not provide this Court with a transcript of the hearing on the landlord’s petition for a writ of possession, nor did they attempt to construct a transcript of the hearing pursuant to OCGA § 5-6-41 (g). Under such circumstances, we must presume the trial court’s judgment granting the landlord a writ of possession is correct. Aviation Electronics v. U. S. Energy Conservation Systems, 242 Ga. 224 (248 SE2d 610).

Case No. A97A2045

3. Thomas Seay did not file an enumeration of errors in Case No. A97A2045, but he did file a brief which is essentially the same as the brief Jamie Hames and Christy Hames filed in support of their appeal in Case No. A97A2044. Since the record in Case No. A97A2045 does not support the assertions in Thomas Seay’s brief, we must affirm the trial court’s judgment in Case No. A97A2045. See Wetherington v. Koepenick & Horne, Inc., 153 Ga. App. 302, 304 (2), supra.

Judgments affirmed in Case Nos. A97A2044 and A97A2045. Appeal dismissed in Case No. A97A2043.

Beasley and Smith, JJ, concur.

Thomas Seay, pro se.

Robert W. Shurtz, for appellee.


text:
    A97A2426.
    FLEMISTER et al. v. HOPKO.
    (495 SE2d 342)
   McMurray, Presiding Judge.

This is an action for damages arising from personal injury and wrongful death resulting from medical malpractice against a number of defendants. Plaintiff Janice Dixon Flemister, individually, as natural guardian and next friend, and as representative of the estate of Antonio Flemister, appeals the grant of summary judgment in favor of one defendant, Mary Hopko, R.N. This summary judgment was based on conclusions that plaintiffs failed to timely serve defendant Hopko with the summons and complaint, that plaintiffs failed to exercise due diligence in attempting service, that the statute of limitation expired, that service upon defendant Hopko did not relate back to the date the action was filed, and that the action against defendant is time barred. Plaintiffs appeal the grant of summary judgment in favor of defendant Hopko. Held:

1. The first enumeration of error maintains that the state court erred in entering summary judgment after the action had been voluntarily dismissed without prejudice as to defendant Hopko prior to any ruling having been made as to summary judgment. The record contains a dismissal without prejudice of defendant Hopko only, which was filed prior to the scheduled time of a hearing on her motion to dismiss, or in the alternative, for summary judgment. Plaintiffs’ claims against a number of additional defendants remain pending.

While OCGA § 9-11-41 (a) allows for the voluntary dismissal of a party’s complaint, it does not provide for the voluntary, unilateral dismissal of a party’s claims against some but not all of the parties to an action. The adding or dropping of parties from an action requires the exercise of discretion by the court pursuant to OCGA § 9-11-21. In the case sub judice, there is no order of the court granting permission for a voluntary dismissal of defendant Hopko only, and it does not appear from the record that any attempt was made to elicit an exercise of discretion on this issue. Accordingly, in the absence of a ruling by the state court, the attempted voluntary dismissal of defendant Hopko is ineffective and this enumeration of error is without merit. Manning v. Robertson, 223 Ga. App. 139, 140 (1) (476 SE2d 889).

2. The remaining issues relate to the belated service of process upon defendant Hopko. “A civil action is commenced by filing a complaint with the court.” OCGA § 9-11-3. “The statute of limitation is tolled by the commencement of a civil action at law. OCGA § 9-11-4 (c). . . requires that service of a complaint shall be made within five days of the filing of the complaint. If an action is filed within the period of limitation, but not served upon defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. If reasonable and diligent efforts are not made to insure proper service as quickly as possible, plaintiff is guilty of laches, and in such case, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation. [Cits.]” Bowman v. U. S. Life Ins. Co., 167 Ga. App. 673, 676 (3) (307 SE2d 134) (1983). See also Brumbalow v. Fritz, 183 Ga. App. 231, 232 (2) (358 SE2d 872) (1987).

“If a plaintiff has taken no action to perfect service, then a petition to permit belated service should be denied as a matter of law. Gulf Oil Corp. v. Sims, 112 Ga. App. 68, 69 (143 SE2d 776) (1965). If the plaintiff has taken some action, ‘(t)he trial judge must determine, exercising a legal discretion, whether the plaintiff was diligent in his efforts. (Cits.)’ Webb v. Murphy, 142 Ga. App. 649, 650 (236 SE2d 840) (1977). See also Gulf Oil Corp., supra at 69. The burden of showing lack of fault is on the plaintiff. Bible v. Hughes, 146 Ga. App. 769, 771 (3) (247 SE2d 584) (1978). See also Miller v. Hands, 188 Ga. App. 256 (372 SE2d 657) (1988).” Anderson v. Hughes, 196 Ga. App. 186, 187 (1) (395 SE2d 623).

In the case sub judice, the complaint was filed on February 29, 1996. The running of the period of the statute of limitation concluded the following day, March 1, 1996, based on the death of Antonio Flemister on this date two years earlier. On May 29, 1996, defendant Hopko filed an answer raising the defenses of lack of jurisdiction over her person, insufficiency of service of process as regards the service of the complaint and summons upon her, and the running of the statute of limitation. Nonetheless, defendant Hopko was not served with summons and complaint until April 4, 1997.

In preparing this action for filing and service, plaintiffs sought to ascertain the whereabouts of defendant Hopko by checking the telephone directory for the Atlanta metropolitan area and by calling telephone directory assistance in Georgia for Atlanta, Griffin (where codefendant Care Master Medical Services is located and defendant Hopko worked), Greenville (where codefendant Meriwether County Emergency Medical Services is located), Columbus (where defendant Hopko rendered care to the decedent), and Manchester, Georgia. Additionally, directory assistance was asked to check towns near Griffin, Georgia. When these queries did not reveal defendant Hopko’s whereabouts a telephone call was placed to Care Master Medical Services during which a person who is not identified in the record provided information that defendant Hopko no longer worked for them and that they did not know her current address, phone number, or how to reach her.

The affidavit of plaintiffs’ attorney relates that she “sent the service papers to the best address I had for [defendant Hopko], which was Care Master Medical Services.” However, it is uncontroverted that defendant Hopko never had an. office at Care Master Medical Services, had never appointed or designated anyone at that business as her agent for service of process, and at the time this action was filed, had not visited the offices of that business in the previous year.

When plaintiffs shortly thereafter received defendant Hopko’s answer which was not in the form of an answer by special appearance it was assumed by plaintiffs that defendant Hopko had been served even though the answer did raise a defense of insufficiency of service of process as regards service of plaintiffs’ complaint and summons, and even though the record does not contain a marshal’s or sheriff’s entry of service showing service upon defendant Hopko. However, we find no authority requiring a defendant not served with process to answer by special appearance. It was sufficient that the defense of lack of service of process was preserved by having been raised in the general answer filed by defendant Hopko.

Nor may the “boilerplate” language in which the insufficiency of service of process defense was stated in defendant Hopko’s answer serve as the basis for any excuse by plaintiffs for failing to be alerted thereby that service may not have been proper. Insofar as the “boilerplate” defense played a part in excusing the plaintiff’s failure to be alerted in Miller v. Hands, supra, it must be noted that there the “boilerplate” defense operated in tandem with a deputy marshal’s inaccurate return of service to mislead that plaintiff. As there was no misleading return of service in the case sub judice, Miller may be distinguished on the facts.

In May 1996, defendant Hopko learned of this lawsuit when she received a telephone call from a person at codefendant Care Master Medical Services and later received a copy of some suit papers. Based on this occurrence, plaintiffs maintain that it is apparent that codefendant Care Master Medical Services did know of the whereabouts of defendant Hopko and provided incorrect information to plaintiffs. While plaintiffs argue that defendant Hopko should not be given the benefit of dismissal from the suit due to plaintiffs’ reliance upon incorrect information with which it was provided, there is no evidence suggesting any conspiracy or attempt to evade service on the part of defendant Hopko. Plaintiffs’ argument avoids the true issue of whether plaintiffs diligently sought to determine the whereabouts of defendant Hopko.

Decided January 7, 1998.

Elizabeth Pelypenko, for appellants.

Sullivan, Hall, Booth & Smith, Terrance C. Sullivan, Downey & Cleveland, Y. Kevin Williams, Long, Weinberg, Ansley & Wheeler, Robert D. Roll, John K. Train TV, for appellee.

Furthermore, in connection with plaintiffs’ query to codefendant Care Master Medical Services, we note that plaintiffs’ evidence failed to identify the name or function of the person to whom a paralegal spoke. Thus, whether the query was directed to an appropriate person or department is not revealed. Also, defendant Hopko states in her affidavit that she has lived openly and continuously at her present address since March 1995, and is listed in the telephone directory albeit in a town not among those which were checked by plaintiffs.

After the query to Care Master Medical Services was unsuccessful, plaintiffs did not know the whereabouts of defendant Hopko but made no further inquiry. Plaintiffs cite Roberts v. Bienert, 183 Ga. App. 751, 752-753 (1) (360 SE2d 25) as authority that the telephone queries were alone sufficient to fulfill her duty of diligence. However, this Court’s point in referencing the ease with which a party could have been located in that case via directory assistance was solely to demonstrate the lack of diligence in that case and was clearly not intended to endorse any specific procedure as being a safe harbor or sufficient response to lack of knowledge of the whereabouts of a party. While plaintiffs’ reliance on Roberts is misplaced, the case is supportive of defendant Hopko in that it notes that plaintiffs’ receipt of a responsive pleading raising a defense of no service “should have put them on notice and inspired them, through counsel, to exercise the greatest possible diligence to ensure proper and timely service.” Roberts at 752. Instead, plaintiffs did nothing for more than a year and finally accomplished service on defendant Hopko only after being served with defendant Hopko’s motion for summary judgment which, incidentally, provided defendant Hopko’s address.

Whether the plaintiffs failed to exercise due diligence in perfecting service after the running of the statute of limitation is a matter within the state court’s discretion and will not be disturbed on appeal absent abuse. The circumstances of the case sub judice provide ample support for the conclusion that plaintiffs were guilty of laches. We find no abuse of discretion in the grant of summary judgment in favor of defendant Hopko. Bennett v. Nelson, 202 Ga. App. 346 (414 SE2d 291); Robinson v. Stuck, 194 Ga. App. 311, 312 (1) (390 SE2d 603). See also Abelt v. Nelson, 204 Ga. App. 501 (419 SE2d 749).

Judgment affirmed.

Beasley and Smith, JJ, concur.


author: Blackburn, Judge.

text:
    A97A2488.
    GARRETT v. THE STATE.
    (495 SE2d 579)
   Blackburn, Judge.

Katina Garrett appeals her convictions of no proof of insurance, driving under the influence of alcohol, failure to yield the right of way, and violation of child restraint. Garrett contends that the State failed to prove venue and that the evidence was insufficient to support her conviction for DUI.

1. Garrett was convicted, after a bench trial, in the State Court of Troup County. Although the State failed to introduce any evidence that venue was proper in Troup County, the Uniform Traffic Citation (UTC) indicating the incident took place in Troup County is contained in the record.

Our Supreme Court has held that “venue must be established beyond a reasonable doubt. However, when the evidence is not conflicting and when no challenge to venue is raised at trial, slight evidence is sufficient to prove venue.” (Citation omitted.) Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988). In Graves v. State, 227 Ga. App. 628 (490 SE2d 111) (1997), a majority of this Court determined that a UTC contained in the record was sufficient evidence in a bench trial to prove venue. Therefore, Garrett’s enumeration of error based on the State’s failure to prove venue is without merit.

2. Garrett contends that the evidence was insufficient to show that she was under the influence of alcohol to the extent that she was a less safe driver. See OCGA § 40-6-391 (a) (1).

“ ‘On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The [trier of fact’s] verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ (Punctuation omitted.) McGhee v. State, 223 Ga. App. 123, 124 (476 SE2d 853) (1996).” Kovacs v. State, 227 Ga. App. 870 (1), 871 (490 SE2d 539) (1997).

In the present case, Officer Little testified that he was dispatched to the scene of an accident where Garrett had turned left in front of an oncoming vehicle. He further testified that he smelled a strong odor of alcoholic beverages on Garrett’s breath and person and that she admitted that she had been drinking earlier that night. Officer Little also testified that Garrett was very talkative.

Decided January 7, 1998

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

Louis J. Kirby, Solicitor, Marla P. Chambless, for appellee.

This case is distinguishable from Groom v. State, 187 Ga. App. 398 (370 SE2d 643) (1988), relied upon by Garrett because in the present case, the officer observed Garrett shortly after the collision and was able to smell the strong odor of alcoholic beverages on her person. In Groom, there was no testimony regarding the condition of the appellant at the time of the collision.

“ ‘Driving an automobile while under the influence of alcohol may be shown by circumstantial evidence.’ (Punctuation omitted.) Schoicket v. State, 211 Ga. App. 636, 637 (2) (440 SE2d 65) (1994). . . . ‘[I]t is solely within the purview of the [trier of fact] to weigh conflicting evidence and judge the credibility of the witnesses.’ Cannon v. State, 223 Ga. App. 248 (477 SE2d 381) (1996). Viewed in the light most favorable to the verdict, ‘(t)he evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of being a less safe driver because of being under the influence of alcohol.’ Rawl v. State, 192 Ga. App. 57 (1) (383 SE2d 903) (1989); see also Schoicket, supra.Kovacs, supra at 871-872.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A97A2545.
    McCULLOUGH v. THE STATE.
    (495 SE2d 338)
   McMurray, Presiding Judge.

The District Attorney for Whitfield County, Georgia,’ preferred an accusation charging defendant with driving under the influence of alcohol to the extent it was less safe for him to drive, failure to stop at a stop sign, violating the open container law, and improper lane usage. The evidence adduced at his jury trial revealed the following:

Officer Bruce Jordan of the Tunnel Hill Police Department was on routine patrol at 3:00 a.m. on September 15, 1996, when he “observed a Ford van which came off the [Interstate] exit.” The driver of the van “did not stop at the stop sign. He went through the stop sign at approximately five to ten miles an hour. He did not stop at the stop sign, a complete stop, at all. He wasn’t even in a rolling stop.” The van “proceeded east on 201. [Officer Jordan] followed the subject approximately two miles. He [the driver of the van] left the roadway on two occasions and crossed the center line on a couple of occasions. [Officer Jordan] called in to Whitfield County Sheriff’s] 0[ffice] and advised them [he] was making a traffic stop of this van and [of] the tag number.”

When defendant stepped out of the vehicle, Officer Jordan “immediately . . . observed that he [defendant] was very unstable on his feet. [Officer Jordan] asked [defendant] for his driver’s license and proof of insurance. [Defendant] told [Officer Jordan] he didn’t have any license on him. [Officer Jordan] noticed a can of beer in the vehicle [and] asked [defendant] if he had been drinking. [Defendant] advised [the officer] that he had been drinking. [Defendant] had been to Chattanooga.” The open can of beer “was in between [defendant’s] seat and the motor cover console. . . . There was a passenger in the right front and on the passenger side right seat in the back.”

Defendant failed two field sobriety tests. A roadside breath test “registered] positive for alcohol content. At that point, [Officer Jordan] read [defendant] the Implied Consent.” Defendant indicated he would submit to “the chemical breath test.” But when officers attempted to administer a chemical breath test, defendant would not blow into the machine. Officer Jordan “told him several times he needed to take his tongue off the end of the tube. He was given approximately three chances to do this and he did not.” In Officer Jordan’s opinion, defendant was “very intoxicated and did not need to be on the state highways of Georgia.” Officer James Sexton of the Catoosa County Sheriff’s Office related the facts of a 1995 incident when he arrested defendant, leading to charges of driving under the influence of alcohol and an open container violation. At that time, defendant was “weaving over the roadway, having a hard time maintaining a single lane. . . .” Defendant “spoke with slurred speech, and he had a strong odor of alcoholic beverage about his breath and person.” Defendant also “had an open bottle of [cognac] in the vehicle.”

The jury found defendant guilty on each of the four counts. His motion for new trial was denied. Defendant appeals from the judgment of convictions and sentences entered by the trial court on the jury’s verdicts. Held:

1. Defendant first enumerates the admission into evidence the circumstances of his earlier arrest. He argues that the trial court erroneously interpreted Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638) to stand for the proposition that “a DUI in any case is similar to another DUI,” whereas the true test of admissibility for extrinsic crimes evidence is that enunciated by the Supreme Court of Georgia in Barrett v. State, 263 Ga. 533 (2) (436 SE2d 480).

Barrett v. State, supra, is a murder case and does not directly bear on the precise evidentiary point under review in this case. Rather, it held that the procedural error in admitting evidence of prior difficulties between the deceased and that defendant, without first conducting the admissibility inquiry as established by Uniform Superior Court Rules 31.1 and 31.3 was not, in that instance, harmless error. Under Georgia law, the general rule is that evidence of extrinsic acts generally is legally irrelevant unless admissible for some purpose other than to show the defendant likely committed the indicted act because he committed other crimes and is, therefore, a person of bad character. OCGA §§ 24-2-2; 24-9-20 (b).

In Kirkland, supra, in an opinion authored by then-Presiding Judge Carley, this Court reasoned: “The type of vehicle driven or the degree or source of intoxication may vary, but it is the simple act of driving while having the status of an habitual violator or while under the influence [of alcohol] that establishes the commission of those crimes. A prior act of driving while having that status or while in that condition would, regardless of any slight variance of circumstances, be relevant to prove bent of mind or course of conduct. [Cits.]” 206 Ga. App. at 28 (3). “Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the perpetrator has the bent of mind ‘to get behind the wheel of a vehicle when it’s less safe for him to do so.’ ” Fields v. State, 223 Ga. App. 569, 570 (2), 571 (479 SE2d 393). See also Druitt v. State, 225 Ga. App. 150, 151 (1), 152 (3) (483 SE2d 117). In the case sub judice, the trial court did not err in admitting evidence that defendant previously drove while under the influence of alcohol, and with an open container in his car, as circumstantial proof of defendant’s bent of mind and course of conduct on the night in question.

2. Defendant next contends the trial court erred in overruling his motion for continuance based on the absence of a defense witness under subpoena.

The record reflects that, before the presentation of any evidence to the jury, defendant attempted to “perfect the record,” by informing the court that a witness who lives in Hixon, Tennessee, was served with a subpoena by hand; that defendant “talked to her night before last and she assured [defendant] that she would be on her way down here[, but that defendant was] not able to reach her this morning. [They were] attempting to find somebody to go get her, but [they] ha[d]n’t had a lot of luck. . . .” This witness was “not absent by [defense counsel’s] permission, either express or implied, and [the defense] can produce her at the next session of this court. Her testimony [was] expect[ed] to be that she was with [defendant] earlier in the evening and that he was not drinking whenever he left her and joined the other two men . . . who were in the vehicle. . . .” The trial court “indicated, we’ll take a longer lunch hour, if that would help you to have him go up there, but we need to move along.”

At 11:45 a.m., after the State rested, the court recessed for two hours. When the trial resumed, defense counsel informed the court, “I’ve got two witnesses, but we still don’t have the key witness that we went looking for.” Defendant then took the stand and admitted he “drank [around three beers] earlier in the evening but [he] hadn’t dr[u]nk that night,” not since around 4:00 p.m. Richard Jude Driscoll then testified that defendant did not drink in his presence. Richard Driscoll did not observe defendant slur speech or exhibit unsteadiness on his feet. At the conclusion of Richard Driscoll’s testimony, defense counsel informed the trial court, “any other evidence would be. merely cumulative and we rest.”

For aught that can be seen from this recitation of the record, defendant made no formal motion for continuance, only to have the same denied. Rather, after the trial court granted a postponement in the form of an extended luncheon recess, defendant put up such evidence as he had and then stipulated to the court that any other evidence would be merely cumulative of that already adduced. Thus, there is considerable doubt whether this enumeration of error was properly perfected. “It is not error to refuse to continue a case in order to procure the testimony of a witness who resides beyond the jurisdiction of the court. Tolbert v. State, 12 Ga. App. 685 (7) (78 SE 131) (1913); Whitehead v. State, 43 Ga. App. 401 (2) (158 SE 917) (1931).” Smith v. State, 193 Ga. App. 208, 210 (3) (387 SE2d 419). In the case sub judice, the trial court did not err in refusing to grant a continuance in order to obtain the testimony of a witness who lived in Hixon, Tennessee, beyond the court’s jurisdiction. This enumeration is without merit.

Judgment affirmed.

Smith, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur even though the trial court did not adequately limit the use the jury could make of the evidence of another DUI about 14 months earlier. McCullough does not enumerate this as error, but it should be noted because of the frequent recurrence of this practice, which in effect permits the jury to consider the similar incident for any purpose in determining the accused’s guilt.

McCullough was on trial for DUI (“less safe”), failure to stop at a stop sign, open container, and improper lane usage. In advance of trial the State moved that it be permitted to present evidence of similar occurrences “to show his identity, bent of mind, motive, modus operandi, intent and course of conduct” with respect to the DUI charge. A hearing was held before the trial began, and the State argued after it presented the proposed evidence to the court that the purpose of showing the prior DUI was “to show course of conduct as to the refusal [to take the chemical test] and as to the driving itself.” The court ruled that it would be admitted.

When the trial began, the State called the officer knowledgeable about the prior occurrence as its first witness. Before he testified, the court instructed the jury that “any evidence of any prior charge or offense should not be considered in any way as to the Defendant’s character, but it is admissible for purposes of showing intent, motive, disposition, method of operating, course of conduct, that kind of thing, and it would only be admissible for that purpose and not for anything else.”

The officer related the details of the prior occurrence, and then both sides’ evidence regarding the offenses being tried was related to the jury. In the final instructions to the jury, the court charged: “Sometimes evidence is admitted for a limited purpose. Such evidence may be considered by the jury for the sole issue or purpose to which the evidence is limited and not for any other purpose. The law provides that evidence of other transactions of this Defendant that are similar in terms of common design, scheme, plan, course of conduct, motive, or other factors, to the offense for which the Defendant is on trial in this case may be admissible and may be considered by the jury for the limited purpose of showing, if it does show, the state of mind, the motive, or the method of operation and matters of that sort. But it should not be considered by you for any other purpose. The Defendant is only on trial for this particular offense and not for any other charge.”

A jury, hearing these two charges, could hardly determine the “sole” issue it could consider the evidence for, much less that it was to be considered only in connection with the DUI offense, or what issue it could not be used to support. Prior acts evidence, in order to be admissible at all, must “involve some sort of probative connection between the crime charged and the prior act.” Barrett v. State, 263 Ga. 533, 534 (436 SE2d 480) (1993). Otherwise “the prejudicial nature of the prior act evidence will outweigh its probative value.” Id. Its relevance must “outweighU its prejudicial impact.” (Emphasis in original.) Oller v. State, 187 Ga. App. 818, 819 (2) (371 SE2d 455) (1988).

In other cases decided by this Court, prior DUIs have been permitted as relevant to prove bent of mind or course of conduct. See, e.g., Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638) (1992) (“bent of mind or course of conduct”); Blane v. State, 195 Ga. App. 504 (1) (393 SE2d 759) (1990) (“course of conduct”); Simon v. State, 182 Ga. App. 210, 211 (1) (355 SE2d 120) (1987) (“course of conduct and bent of mind”); Kilgore v. State, 176 Ga. App. 121 (1) (335 SE2d 465) (1985) (“course of conduct”).

The majority opinion in this case rules that the evidence was allowable as circumstantial proof of McCullough’s “bent of mind and course of conduct” on the night of the offenses on trial. Even if these are legitimate bases for allowing this evidence as connecting the prior DUI with the incident on trial, the two instances of instructing the jury as to the use of this evidence were not so limited and in fact were so broad as to permit virtually unlimited consideration. See Stephan v. State, 205 Ga. App. 241, 242 (2) (422 SE2d 25) (1992).

Decided January 7, 1998.

Millard G. Gouge, for appellant.

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


author: Pope, Presiding Judge.

text:
    A97A1793.
    BROWN et al. v. HINES et al.
    (495 SE2d 592)
   Pope, Presiding Judge.

On June 7,1992, Mary Brown and a passenger were traveling on Mallard Pond Road in Bulloch County, Georgia. Although a stop sign normally controls traffic on Mallard Pond Road where it intersects Middleground Road, on that day the sign had been removed. Brown proceeded through the intersection without stopping and was struck by a car driven by Joe Hines. Brown later died as the result of injuries she received in the wreck, and her heirs (hereinafter “plaintiffs”) brought suit against Hines, his father, Bulloch County, the Sheriff of Bulloch County, the Bulloch County Sheriff’s Department, Thurman Fail, individually and as foreman of the Bulloch County Correctional Institute (BCCI) and other unnamed “John Doe” defendants. The trial court entered an order dismissing the John Doe defendants and granted summary judgment to all named defendants. Plaintiffs appeal, arguing the trial court erred in granting summary judgment to Thurman Fail and Hines.

1. Plaintiffs first challenge the grant of summary judgment to Thurman Fail, the officer of the BCCI who had the duty of replacing missing stop signs. In Nelson v. Spalding County, 249 Ga. 334, 336 (290 SE2d 915) (1982), our Supreme Court held that the duty to replace stop signs is ministerial, once the agency or official charged with replacing the sign receives notice that the sign is missing. The trial court in this case found there was no evidence that Fail or the BCCI received notice of the missing stop sign. On appeal, the plaintiffs point to the deposition testimony of a nearby resident that he reported the missing stop sign to the Bulloch County Sheriff’s Department and the local office of the state patrol and contend that this testimony creates an inference that someone from those entities would have notified the BCCI of the missing sign. But Fail testified that neither he nor anyone at the BCCI received notice of the missing sign until after the accident, and no direct evidence was presented to contradict his testimony. “An inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.” (Citations and punctuation omitted.) Derry v. Clements, 197 Ga. App. 173, 174 (397 SE2d 594) (1990). “In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.” (Citations and punctuation omitted.) Adams v. Servpro of Macon, 189 Ga. App. 438 (375 SE2d 894) (1988). Cf. Nelson, 249 Ga. at 336 (in which evidence was presented that a report of the missing stop sign had been given directly to the agency charged with replacing the sign). Plaintiffs’ first enumeration of error is without merit.

2. Citing Edmond v. Robertson, 207 Ga. App. 101 (427 SE2d 74) (1993), plaintiffs argue the trial court erred in granting summary judgment to defendant Hines. Edmond involved a malfunctioning but present traffic light at an intersection, and the defendant in that case pled guilty to violating OCGA § 40-6-70, which establishes the right of way at uncontrolled intersections. But, contrary to plaintiffs’ assertions on appeal, we do not believe the rationale of Edmond is applicable here. Travelers coming upon an intersection with a malfunctioning traffic signal should know and appreciate that they cannot rely on the malfunctioning traffic light for instructions on how to proceed through the intersection. But motorists coming upon an intersection with a missing stop sign would not necessarily appreciate that fact. Here the evidence was that travelers along Middleground Road had always had the right of way. In order to hold that a fact question exists as to who had the right of way at the intersection, we would in effect be saying that travelers on Middleground Road should somehow discern that the stop sign controlling traffic on the intersecting road was suddenly missing, and that they were entering an uncontrolled intersection. And although the travelers on Middleground Road did not have any clue that the stop sign was missing, there was a “stop ahead” sign on Mallard Pond Road, which Brown and other travelers passed before coming to the intersection. To let a jury decide if Hines was negligent in proceeding through the intersection under these circumstances simply defies logic and reason. What happened here was tragic, but that does not mean it was the result of negligence or that either driver was at fault. The trial court did not err in granting summary judgment in this case.

Judgment affirmed.

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

Decided January 8, 1998.

Edenfield & Cox, Michael J. Classens, for appellants.

Barnhart, O’Quinn & Williams, Terry E. Williams, Kristina H. Blum, Barrow, Sims, Morrow, Lee & Gardner, R. Stephen Sims, Franklin, Taulbee, Rushing, Bunce & Brogdon, James B. Franklin, Brown & Livingston, Jeffrey S. Akins, for appellees.


author: Johnson, Judge.

text:
    A97A1799.
    JOHNSON et al. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (495 SE2d 583)
   Johnson, Judge.

Jimmy Johnson and his wife, Willie Johnson, sued Metropolitan Atlanta Rapid Transit Authority (“MARTA”) for personal injuries sustained by Jimmy Johnson and for loss of consortium. The action arose from the stabbing of Jimmy Johnson by an unidentified assailant at a MARTA rail station and alleged that MARTA failed to provide adequate security to control the crowd waiting to enter the station and failed to provide sufficient trains for the crowd. The trial court granted MARTA’s motion for summary judgment, and the Johnsons appeal. For reasons which follow, we affirm.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]” Id.

Viewed in that light, the record shows the following: Following a tractor pull event at the Georgia Dome on January 8, 1994, Jimmy Johnson, his son, a neighbor and the neighbor’s son were waiting in a crowd of patrons outside the faregates of MARTA’s Omni rail station to board a train. As Jimmy Johnson waited, he felt “something warm” on his back, touched his back with his hand and realized he was bleeding and had been cut. Johnson had no advance warning that he was in danger of criminal attack. Johnson alerted a MARTA police officer stationed in the faregate area who came to his aid. Neither Johnson nor anyone else could identify who stabbed him. The officer took a report and attempted to locate a suspect, but no identification or arrest was made.

In order to establish a cause of action for MARTA’s negligent failure to provide adequate security and trains, the Johnsons must show that MARTA owed a duty to Jimmy Johnson to make such provisions, that MARTA breached that duty, and that the breach was the proximate cause of the injury alleged. See Robertson v. MARTA, 199 Ga. App. 681 (405 SE2d 745) (1991). “It is well established that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence.” (Citations and punctuation omitted.) Id. at 682. In the case before us, we need not address Jimmy Johnson’s status outside the faregates because his cause of action fails even under the strictest “extraordinary diligence” standard of care set forth in OCGA § 46-9-132 for passengers of common carriers.

“[A] common carrier is not required to take measures to protect its passengers from the intentional misconduct of third persons until something occurs to put the carrier on notice that such conduct might be reasonably anticipated. [Cit.] To establish reasonable foreseeability, more than the mere possibility of an occurrence must be shown, since otherwise a common carrier would be made an insurer, with absolute liability to all passengers. [Cit.]” Southeastern Stages v. Stringer, 263 Ga. 641, 643 (437 SE2d 315) (1993).

1. The Johnsons first allege that Jimmy Johnson’s assault was foreseeable because MARTA was on notice that additional officers were needed to maintain control of the crowd. Jimmy Johnson testified that the officer who assisted him after the stabbing stated that he told MARTA more security was needed because of the number of people expected as a result of special events. According to the officer, his co-workers and supervisors were aware of problems and crowds associated with special events like the tractor pull.

However, the record indicates that security measures were in place at the Omni station. MARTA regularly assigns additional officers at various locations on the rail system when special events occur which increase the patronage of a particular station or stations, and it had done so on this occasion. On the date of Jimmy Johnson’s stabbing, five officers, in addition to the regular officers on duty, were assigned to the Omni station to provide additional staffing for the tractor pull crowd. Moreover, there was deposition testimony that indicates the atmosphere in the station on the day of the incident was chaotic and would have been so even if MARTA had 50 ■ officers there. The Johnsons failed to provide any evidence showing that MARTA’s security measures fell below reasonable security standards and failed to conform to the standard of care required of MARTA. See generally Reid v. Augusta-Richmond County Coliseum Auth., 203 Ga. App. 235, 237 (1) (416 SE2d 776) (1992).

Decided January 8, 1998.

McArthur & McArthur, John J. McArthur, for appellants.

Miriam D. Lancaster, for appellee.

The Johnsons also allege that Jimmy Johnson’s assault was foreseeable to MARTA based on a statistical summary of crimes reported at the Omni station from January 1, 1990 to January 8, 1994. However, it is undisputed that no prior violent crimes had occurred at the Omni station in the preceding three years during special events. Thus, there is no evidence in the record to show that MARTA had knowledge that the crowd conditions were likely to result in an assault upon a passenger.

Moreover, it cannot be inferred from a silent record that MARTA negligently failed to maintain an adequate number of trains to transport passengers. The Johnsons’ statements, taken in the light most favorable to them, are merely conclusions and are not supported by any evidence in the record. “Allegations, conclusory facts, and conclusions of law cannot be utilized to support or defeat motions for summary judgment. [Cits.]” Peterson v. Midas Realty Corp., 160 Ga. App. 333, 335 (287 SE2d 61) (1981). Since Jimmy Johnson failed to point to specific evidence giving rise to a triable issue on the matter of providing adequate security and a sufficient number of trains, the trial court properly granted summary judgment to MARTA. See generally Walker v. MARTA, 226 Ga. App. 793, 796 (1) (487 SE2d 498) (1997) (physical precedent only).

2. Since Jimmy Johnson’s appeal fails, affirmance of the trial court’s grant of summary judgment is also appropriate for Willie Johnson’s derivative claim for loss of consortium. See generally Henderson v. Hercules, Inc., 253 Ga. 685 (324 SE2d 453) (1985).

Judgment affirmed.

Pope, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Judge Harold R. Banke.

text:
    A97A1820.
    HAYNES v. THE STATE.
    (495 SE2d 591)
   Judge Harold R. Banke.

George Haynes was convicted of sale of cocaine and possession of cocaine with intent to distribute. He enumerates two errors, chailenging the sufficiency of the evidence and the trial court’s refusal to instruct the jury on entrapment.

This case arose just prior to the execution of a search warrant on Haynes’ residence. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). An undercover officer drove up to Haynes’ residence, waved, and said, “Hey George, remember me?” Haynes responded in the affirmative, walked over to the officer’s unmarked car, and asked what he needed. When the officer requested two rocks, Haynes responded, “Okay” and went back in his house. On his return seconds later, Haynes handed the officer two rocks of crack cocaine in exchange for $40. The undercover officer then radioed his colleagues who were waiting nearby to execute the warrant. During the search, the officers discovered $380 on Haynes, and 18 rocks of crack cocaine on or in his refrigerator with a total weight of 2.2 grams. Held:

1. Notwithstanding Haynes’ argument to the contrary, the evidence of intent to distribute, viewed in the light most favorable to the verdict, is sufficient to sustain the conviction under Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The undercover officer’s testimony that Haynes exchanged cocaine for cash just prior to the arrest undermines the defense’s contention that the State proved no more than mere possession. Williams v. State, 199 Ga. App. 544 (1) (405 SE2d 539) (1991). Further, at the time of his arrest, Haynes had over $300 on his person, did not appear to be under the influence of drugs, and possessed no smoking implements or other drug paraphernalia demonstrating his personal use. See Palmer v. State, 210 Ga. App. 717, 718 (437 SE2d 490) (1993). This evidence, coupled with the number of rocks, provides proof of intent to distribute sufficient to allow a rational jury to find Haynes guilty beyond a reasonable doubt. Id.; see Lester v. State, 226 Ga. App. 373, 376-377 (2) (487 SE2d 25) (1997).

2. The evidence did not support a charge on entrapment. Entrapment requires proof that (1) the idea of the crime originated with the state agent; (2) the agent’s undue persuasion, incitement or deceit induced the crime; and (3) the defendant was not predisposed to commit the crime. Byrd v. State, 211 Ga. App. 881 (1) (440 SE2d 764) (1994). Haynes presented no evidence of the second element. Brooks v. State, 224 Ga. App. 829, 830 (1) (482 SE2d 725) (1997) (defendant bears the burden of establishing a prima facie case of entrapment). Even repeated requests for contraband knowingly possessed by an individual who at first demurs do not constitute entrapment. Lawrence v. State, 227 Ga. App. 70, 73 (6) (487 SE2d 608) (1997). Here, the undercover officer garnered the desired action after only one request. Compare Wagner v. State, 220 Ga. App. 71 (467 SE2d 385) (1996). The facts that the agent did not announce his status as such and pretended that he and Haynes were previously acquainted do not require a different result, notwithstanding Haynes’ unsupported assertions to the contrary. Adams v. State, 207 Ga. App. 119, 120 (1) (427 SE2d 90) (1993); see Lawrence, 227 Ga. App. at 73 (6).

Decided January 8, 1998.

Joel N. Shiver, for appellant.

Harry N. Gordon, District Attorney, John A. Pursley, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley and Smith, JJ., concur.


author: Ruffin, Judge.

text:
    A97A1836.
    In the Interest of S. N. N., a child.
    (495 SE2d 602)
   Ruffin, Judge.

The mother of five-year-old S. N. N. petitioned the juvenile court to terminate the parental rights of the natural father. The father appeals, asserting there was insufficient evidence supporting the juvenile court’s order terminating his rights. For reasons which follow, we affirm.

“The question on appeal is whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, ‘any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.’ [Cit.] This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met. [Cit.]” In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

The evidence shows that the father has a substantial criminal history, with numerous felony convictions both before and after S. N. N.’s birth. Specifically, on November 29, 1983, he was sentenced to serve five years for possession of LSD. On May 24,1984, the father was convicted of two counts of selling cocaine and sentenced to serve twelve years in confinement. On December 10, 1990, he was sentenced to serve ten years for trafficking in marijuana. S. N. N. was born on December 28, 1990. S. N. N.’s mother and father divorced in September 1993. The divorce decree required the father to pay $35 per week for child support. The father claimed that he was denied visitation and intentionally ceased paying child support after January 1995. On July 17, 1996, the father was convicted of two counts of violating the Georgia Controlled Substances Act and one count of possession of a firearm by a convicted felon. He was sentenced to serve 15 years for those offenses and was serving that sentence at the time of the termination hearing. According to the mother, the father has never attempted to see the child, never sent the child a letter and called the child only once, which was over a year before the hearing.

1. There was sufficient evidence to support the termination. “Although imprisonment alone does not always compel. . . termination of parental rights, it will support such a ruling when adequate aggravating circumstances are shown to exist. Thus, in determining whether a child is without proper parental care and control, OCGA § 15-11-81 (b) (4) (B) (iii) provides the court shall consider, without being limited thereto, the conviction and imprisonment of a parent for a felony offense which has a demonstrable negative effect on the quality of the parent-child relationship. . . . [W]here, as in this case, an incarcerated parent has a criminal history of repetitive incarcerations for the commission of criminal offenses or parole violations, this constitutes an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to continue.” (Citations and punctuation omitted; emphasis in original.) In the Interest of L. F, 203 Ga. App. 522 (417 SE2d 344) (1992).

In this case, the evidence is clear and convincing that since January 1995, the father provided no care for the child, financial or otherwise. His past and current criminal incarcerations evidence a patent disregard for the child’s welfare and that the pattern of deprivation is likely to continue. The father simply ignores reality in asserting that his relative abandonment of the child will not cause her serious physical, mental, emotional, or moral harm. It is clearly in the best interests of the child that the parental rights be terminated. See OCGA § 15-11-81 (a); L. F, supra.

2. We find no merit in the second enumeration of error, which, in violation of OCGA § 5-6-40, asserts three different errors.

(a) Based on the evidence discussed in Division 1, the juvenile court properly found that the child was deprived.

(b) We are not aware of any authority that requires a party to file a contempt action to enforce court-ordered child support payments as a prerequisite to relying on the failure to pay as a ground for termination. See OCGA § 15-11-81 (b) (2).

(c) The father never moved the juvenile court to dismiss the termination petition on the ground that it did not specifically allege that the child was “deprived,” and such an assertion cannot be reviewed for the first time on appeal. See In re S. D. S., 166 Ga. App. 344 (1) (304 SE2d 85) (1983). In any event, a motion made on these grounds would have been properly denied inasmuch as the petition stated in “ordinary and concise language the facts demonstrating the nature of the [father’s] alleged failure to provide proper parental care or control. . . .” In the Interest of D. R. C., 191 Ga. App. 278 (1) (381 SE2d 426) (1989).

Decided January 8, 1998.

Michael R. McCarthy, for appellant.

Little & Adams, Sam F. Little, Jerry W. Moncus, for appellee.

Judgment affirmed.

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


text:
    A97A1844.
    HARDEGREE v. THE STATE.
    (495 SE2d 347)
   Judge Harold R. Banke.

Richard Scott Hardegree was convicted of rape, sodomy, and burglary. He enumerates five errors on appeal.

This case arose as the pregnant victim and her 11-year-old son slept. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). Hardegree crawled in a window, cut eye and mouth holes in a pair of the victim’s maternity underwear, placed it over his face, and woke the victim. Then he placed a razor to her throat and asked for money. He “said he was running from the law and he had been drinking, he was on drugs real bad, [and] he needed money for gas.” After Hardegree prevented her from reaching toward a can of Mace on her nightstand, the victim told him she was only getting a cigarette. Hardegree then gave her one of his, a GPC brand, and ordered the victim to show him where the phone was located.

As she left her bedroom, he shoved her into a spare room, pushed her onto the bed, and ordered her to remove his pants. When the victim refused, he stripped her, removed his pants, and attempted oral sex on her. Then he forced her to perform oral sex on him, turned her over a big stuffed animal, and raped her. While in that position, the victim noticed a hammer Hardegree had placed beside the bed. After Hardegree forced the victim to perform oral sex on him a second time, ejaculating into her hair and face, the victim struck him with the hammer. The victim and Hardegree then wrestled over the hammer until his mask ripped. He then yelled, “Oh my God,” and ran. Held:

1. The victim’s testimony that her attacker stated he was running from the law, had been drinking, was on drugs really bad, and needed money for gas was not impermissible character evidence. Had this issue been properly preserved for appeal, we would have found that the statements at issue, made during the commission of the offenses, were admissible as res gestae. OCGA § 24-3-3; Wynn v. State, 225 Ga. App. 206 (3), 207 (483 SE2d 352) (1997); Basu v. State, 228 Ga. App. 591, 592-593 (1) (492 SE2d 329) (1997) (failure to raise issue at trial constitutes waiver).

2. The identity evidence, viewed in the light most favorable to the verdict, was sufficient for the jury to find that Hardegree committed the crimes. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). Although the victim and her son could not identify the attacker because of the mask, strong circumstantial evidence linked Hardegree to the crimes. The victim described the perpetrator as a thin, white male with curly, brown hair, a description matching Hardegree. DNA evidence retrieved from the semen on the victim’s face and hair also matched Hardegree. The cigarette the attacker gave the victim was Hardegree’s brand. Police traced the hammer to Hardegree’s former employer, who testified that Hardegree borrowed it on his first day at work. He also testified that the. day after the offenses Hardegree claimed he lost the hammer and borrowed another. Hardegree was observed with a leg injury after the offenses occurred. Consonant with the victim’s testimony, Hardegree’s girl friend testified that on the night of the offenses, he had been drinking and he was running from the police, as she had called them to make him leave after a fight. The identity evidence was further strengthened by similar transaction testimony that Hardegree had raped another woman at knifepoint. This evidence was sufficient to exclude every reasonable hypothesis except that of guilt and entitled the jury to reject Hardegree’s contention that the victim consented to sex with him. Dean v. State, 181 Ga. App. 452 (352 SE2d 633) (1987).

3. The trial court’s failure to give curative instructions regarding the victim’s violation of the rule of sequestration on rebuttal does not require reversal. In response to a juror’s request, the evidence was reopened and the victim was presented with two additional questions in rebuttal despite the fact that she had remained in the courtroom after testifying. The victim was asked whether she had consensual sex with Hardegree the day before or day of the rape and whether she saw him on those days.

It does not appear from the record that the rule of sequestration was invoked. See Watson v. State, 222 Ga. App. 158, 159 (2) (473 SE2d 262) (1996). Nor did Hardegree request such an instruction. Assuming the issue is properly before us, however, we find the error, if any, was harmless. Violations of the rule of sequestration go to the witness’s credibility, not to competency to testify. Keller v. State, 221 Ga. App. 846, 848 (3) (473 SE2d 194) (1996). The trial court charged the jury on credibility, and during rebuttal, Hardegree cross-examined the victim about her presence in the courtroom during Hardegree’s testimony. Moreover, the victim’s initial testimony that she had met Hardegree only once before, while accompanied by her boyfriend, rendered the evidence garnered on rebuttal cumulative. Manchester v. State, 226 Ga. App. 653, 656 (3) (487 SE2d 449) (1997).

4. Hardegree did not receive ineffective assistance of counsel. To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). Absent a showing of prejudice, inquiry into counsel’s alleged deficiency is unnecessary. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995). Hardegree alleges ineffectiveness on several grounds.

(a) We reject Hardegree’s contention that his counsel was ineffective for failing to move for a directed verdict of acquittal at the close of the State’s case. As analyzed in Division 2, the evidence, though circumstantial, was sufficient to support the verdict, which precludes a showing of prejudice. See Mitchell v. State, 223 Ga. App. 319, 321 (6) (477 SE2d 612) (1996).

(b) Counsel’s failure to object when the victim testified that her attacker “said he was running from the law and he had been drinking, he was on drugs real bad, [and] he needed money for gas” did not constitute ineffectiveness. Hardegree cannot show prejudice when the testimony was admissible as res gestae, and any such objection would have been properly overruled.

. (c) Hardegree failed to show prejudice arising from his counsel’s failure to file a written request to charge on the victim’s violation of the rule of sequestration during rebuttal. Because the testimony was cumulative of that presented during the case in chief, we see no probability that the absence of this charge was outcome determinative. Moreover, Hardegree failed to demonstrate that the rule was invoked. Watson, 222 Ga. App. at 159 (2); see Court of Appeals Rule 27 (c) (3) (i).

5. We reject Hardegree’s claim that his burglary conviction merged with the rape and aggravated sodomy charges. Here, the burglary was completed when Hardegree entered the apartment without authority, with the intent to commit the two other crimes charged. Childs v. State, 257 Ga. 243, 251-252 (12) (357 SE2d 48) (1987). Thus, proof that he actually committed the rape and aggravated sodomy was unnecessary to establish the burglary offense. Id. at 252 (12). Accordingly, Hardegree was not sentenced twice for the same conduct. OCGA § 16-1-7.

Decided January 8, 1998.

Jerry W. Moncus, Michael A. Corbin, for appellant.

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

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

       Hardegree raised the ineffectiveness issue for the first time on appeal. Ordinarily, where appellate counsel makes a first appearance on direct appeal, as here, the case is remanded for an ineffectiveness hearing in the trial court. White v. Kelso, 261. Ga. 32 (401 SE2d 733) (1991); Elrod v. State, 222 Ga. App. 704, 705 (1) (475 SE2d 710) (1996). When remand would “serve no useful purpose,” however, the issue may be decided on the record by this Court. Id. at 705-706; Brundage v. State, 208 Ga. App. 58, 59 (2) (430 SE2d 173) (1993). Having analyzed Hardegree’s ineffectiveness claims on their merits in Divisions 1, 2, and 3 and found neither harm nor error, we find it apparent as a matter of law that he cannot establish ineffectiveness. Thus, we need not remand for a hearing on the matter. Id.


text:
    A97A1845.
    HICKS v. EVANS.
    (495 SE2d 588)
   Judge Harold R. Banke.

This appeal arose from a malpractice action filed by Linda Hicks, a South Carolina resident, against Warren Allen Evans, an Augusta-based attorney then licensed to practice in Georgia. After Evans failed to render the desired legal services, Hicks sued Evans in South Carolina for malpractice for mishandling her property damage claim against her Georgia landlord. Evans was properly served with the suit but did not respond. The South Carolina Court of Common Pleas, having previously entered a default judgment against Evans, held a separate trial on damages and awarded $20,000 in actual damages and $75,000 in punitive damages. When Hicks attempted to domesticate the South Carolina judgment under Georgia’s Uniform Enforcement of Foreign Judgments Law (OCGA § 9-12-130 et seq.), Evans moved to set aside the judgment as void by reason of lack of personal jurisdiction. During the bench trial of this issue, the parties disputed whether key events had transpired in South Carolina or Georgia. The evidence conflicted as to whether Hicks and Evans formed an attorney/client relationship in Evans’ law office in Augusta or at Hicks’ place of business in South Carolina. Although Evans conceded that he went to South Carolina to inspect the property damage, the testimony clashed as to whether any fee negotiations occurred during that visit to South Carolina.

The trial court repeatedly voiced its “grave concerns” over Evans’ credibility, since Evans had been suspended from the practice of law for mishandling clients’ cases. Nevertheless, it found for Evans partly due to inconsistencies between the testimony of Mr. and Mrs. Hicks. The court determined that Evans did not solicit or transact any business in South Carolina within the meaning of that state’s long arm statute, and that the exercise of personal jurisdiction over Evans “offended the traditional notions of fair play and substantial justice.” Concluding that the South Carolina court lacked personal jurisdiction over Evans, it refused to domesticate the judgment. Enumerating three errors, Hicks appeals. Held:

1. We reject Hicks’ contention that the Georgia court lacked authority to make its own findings as to whether the South Carolina court lacked personal jurisdiction over Evans. When an action is filed to domesticate a foreign judgment, that judgment may be collaterally attacked on the basis that the foreign court lacked personal jurisdiction. Sanwa Leasing Corp. v. Stan Hunt Constr. Co., 214 Ga. App. 837 (449 SE2d 347) (1994). A collateral attack based on lack of personal jurisdiction is precluded only where the defendant has appeared in the foreign court and had an opportunity to litigate the issue. Ramsey Winch Co. v. Trust Co. Bank, 153 Ga. App. 500, 501 (1) (265 SE2d 848) (1980). Where the foreign judgment, as here, is obtained by default, the existence of personal jurisdiction is not presumed. Brown v. U. S. Fidelity &c. Co., 208 Ga. App. 834, 835 (2) (432 SE2d 256) (1993). Because Evans did not litigate the issue of personal jurisdiction in South Carolina, he did not waive his right to collaterally attack the South Carolina judgment in Georgia. Ramsey Winch Co., 153 Ga. App. at 501 (1).

In order to accord the foreign judgment full faith and credit, personal jurisdiction over Evans must have been proper under South Carolina law. See Duffy v. Theatrical Electronics Corp., 193 Ga. App. 628, 629 (388 SE2d 743) (1989). Under South Carolina law, whether a court may exercise personal jurisdiction requires a two-step analysis. Southern Plastics Co. v. Southern Commerce Bank, 423 SE2d 128, 130 (S.C. 1992). First, the trial judge must determine that the South Carolina long arm statute applies; and, second, the trial judge must determine that the nonresident’s contacts with South Carolina are sufficient to satisfy due process requirements. Id. The South Carolina long arm statute authorizes jurisdiction over a person where the cause of action arises from the person’s “transacting any business in this State.” S.C. Code Ann. § 36-2-803 (1) (a). Having reviewed the record; we are constrained to find that the trial court did not clearly err in finding that the business that Evans transacted in South Carolina did not give rise to the underlying cause of action for malpractice. See Mut. Ins. Co. of New York v. Dublin Pub, 190 Ga. App. 94, 95 (378 SE2d 497) (1989) (factual findings will not be set aside unless clearly erroneous).

Decided January 8, 1998.

Michael H. Saul, for appellant.

Troutman Sanders, Sharon N. Hill, Herbert D. Shellhouse, John M. Bowler, for appellee.

2. Hicks contends that the trial court erred in finding that Evans did not waive his right to attack the South Carolina judgment when he wrote a letter to the South Carolina court seeking to reschedule the hearing on damages. After requesting the hearing date be changed, it is undisputed that Evans did not participate in the hearing, file any motions, or take any overt act submitting himself to the jurisdiction of the South Carolina forum. Assuming arguendo that the issue was properly raised and preserved below, Hicks cites no authority for her proposition that Evans’ act of contacting the South

Carolina court constituted an “appearance” so as to submit Evans to that court’s jurisdiction. Compare Packer Plastics v. Johnson, 205 Ga. App. 797 (423 SE2d 690) (1992) (filing motion in foreign court to set

aside default constitutes an appearance); see B & D Fabricators v. D. H. Blair Investment &c., 220 Ga. App. 373, 374 (1) (b) (469 SE2d 683) (1996). In light of the above, we need not reach Hicks’ remaining enumeration of error.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

       At the hearing, Evans admitted that his license to practice law had been under suspension since 1994, due to complaints from his clients to the State Bar of Georgia. See In the Matter of Warren Allen Evans, 264 Ga. 589 (449 SE2d 115) (1994).


text:
    A97A1991.
    MARSHALL v. THE STATE.
    (495 SE2d 585)
   Judge Harold R. Banke.

Fred James Marshall was convicted of burglary. He enumerates two errors on appeal.

This case arose after Marshall cut the screen and entered a window into the home the two elderly female victims shared. The victims, sisters, awoke to discover that two pocketbooks containing approximately $60 were missing. The responding officer searched the area surrounding the house and found the purses in a nearby dumpster. Inside one, he found a rubber glove which the victims denied was theirs.

Three months later, the victims were burglarized a second time and raped. Marshall was arrested but not charged in the crimes. He then became a suspect in the initial burglary, at which point the authorities sent the rubber glove to the crime lab, three months after the crime at issue here. Latent prints from all five fingers on Marshall’s right hand were found on the glove. Held,'.

1. Marshall’s rights to confrontation and a thorough and sifting cross-examination were not abridged by constraints placed on his inquiry into the delay in sending the glove to the crime lab. After Marshall moved in limine to exclude any reference to the rape, the State agreed to avoid that topic. In conjunction with argument on that motion, however, the State asked that Marshall refrain from raising the issue of law enforcement’s failure to have the glove tested immediately after the first burglary. Over Marshall’s protest that he should be permitted to explore what he characterized as “sloppy police work,” the trial court held that if Marshall broached the issue, the State could explain the delay with testimony that Marshall did not become a suspect until the rape and second burglary.

“The object of all legal investigation is the discovery of truth.” OCGA § 24-1-2. Marshall in effect sought to mislead the jury by discrediting law enforcement for its investigatory delay, while preventing the State from offering an explanation. We cannot say the trial court abused its discretion by permitting the State to provide a truthful answer if Marshall chose to pursue that issue. Compare Garcia v. State, 267 Ga. 257, 259 (7) (477 SE2d 112) (1996).

“ 'The Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ [Cit.] Price v. State, 223 Ga. App. 185, 189 (8) (477 SE2d 353) (1996). Having reviewed Marshall’s cross-examination of the investigating officer, which thoroughly explored the methods used in the instant investigation, we cannot say the trial court’s ruling abridged Marshall’s rights. Compare Hines v. State, 249 Ga. 257, 259-260 (2) (290 SE2d 911) (1982).

2. The trial court erred in allowing the admission of an incriminating in-custody statement Marshall made to a detention technician which was not timely provided to the defense as required by OCGA § 17-16-4 (a) (1). That statute mandates disclosure of any “relevant . . . oral statement made by the defendant while in custody, whether or not in response to interrogation” no later than ten days prior to trial.

Just prior to resting, the State sought permission to recall the detention technician who fingerprinted Marshall to testify that Marshall asked him, “How can they get you for burglary when there isn’t any money in the purse?” In explaining the State’s failure to provide Marshall’s statement to the defense, the prosecutor asserted that the detention officer had informed her of the statement only ten minutes earlier. Marshall then moved for a continuance and a mistrial, claiming the statement affected the entire theory of his case. After questioning the officer, who admitted that the prosecutor’s office had called him “a couple of times” prior to trial, the court denied these motions but permitted Marshall to interview the witness shortly before he was recalled to testify.

The reciprocal discovery statute vests trial courts with broad discretion to remedy violations of its provisions. OCGA § 17-16-6. The purpose is twofold: to deter the State from violating its discovery obligations and to correct the prejudice to defendants caused by such violations. Dickey v. State, 179 Ga. App. 383, 385 (1) (346 SE2d 864) (1986) (construing OCGA § 17-16-6’s precursor). To promote these dual goals, trial courts may “order the [Sjtate to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the [S]tate from introducing the evidence not disclosed, ... or may enter such other order as it deems just under the circumstances.” OCGA § 17-16-6. While the range of remedies permitted by OCGA § 17-16-6 is wide, the trial court’s discretion is not unlimited, particularly when its exercise affronts these goals. Williams v. State, 226 Ga. App. 313, 314 (1) (485 SE2d 837) (1997) (abuse of discretion standard of review).

Here, the State justified its failure to conform to the discovery rules on newly discovered evidence grounds. It is, however, undisputed that Marshall delivered the statement to a law enforcement officer included on the State’s witness list while in police custody well before trial. Such evidence is not “newly discovered” despite the prosecutor’s ignorance of it. Talley v. State, 251 Ga. 42 (302 SE2d 355) (1983) (construing OCGA § 17-16-6’s precursor, OCGA § 17-7-210); Ludy v. State, 177 Ga. App. 767, 768 (1) (341 SE2d 224) (1986). On the contrary, the statement was actually in the prosecution’s possession from the time it was communicated. OCGA § 17-16-1 (1) (evidence garnered by “any law enforcement agency involved in the investigation of the case” is in the possession, custody, or control of the State or prosecution); see Hammitt v. State, 225 Ga. App. 21, 24 (482 SE2d 437) (1997) (Blackburn, J., concurring specially) (absent an adequate explanation, the State’s failure to satisfy its affirmative duty to keep apprised of and produce all discoverable items in police possession justifies an inference of bad faith).

Decided January 8, 1998.

Paige A. Pastor, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Carol M. Kayser, Assistant District Attorneys, for appellee.

In the absence of an adequate explanation, the State’s failure to produce the incriminating admission, which provided the only direct evidence of guilt in this case, was clearly improper. Moreover, the timing of its disclosure to Marshall, shortly before its admission at the close of the State’s case, prevented Marshall from reflecting on the evidence, preparing a response, developing other evidence to impeach the testimony, or reconsidering his trial strategy. Id.

We believe the trial court abused its discretion in its handling of the State’s request to admit this evidence and its denial of Marshall’s motion for continuance. See Livingston v. State, 266 Ga. 501, 502 (1) (467 SE2d 886) (1996). The admission of this evidence under these circumstances certainly provides the State with no present or future incentive to ensure full compliance with its discovery obligations, one of OCGA § 17-16-6’s fundamental goals. Hammitt, 225 Ga. App. at 23. Nor can we say that the trial court attempted to minimize the prejudice caused by the State’s failure to comply with OCGA § 17-16-4 (a) (1). Id.

However, in light of the overwhelming evidence against Marshall, including his fingerprints on the glove found in the victim’s purse and similar transaction testimony that Marshall admitted to burglarizing three other apartments in the same manner, we find it highly probable that the error did not contribute to the jury’s verdict. Sterling v. State, 267 Ga. 209, 213 (8) (477 SE2d 807) (1996). Thus, we are constrained to find the error harmless. Had the evidence been less powerful, we would not hesitate to reverse.

Judgment affirmed.

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

       The record shows that Marshall opted to participate in reciprocal discovery under OCGA § 17-16-1 et seq.

       This discretion is a departure from OCGA § 17-16-6’s predecessor, OCGA § 17-7-210 (c), which mandated exclusion upon the State’s failure to comply with a defendant’s timely written request for a copy of his oral or written statement.

       This fact distinguishes Broomall v. State, 260 Ga. 220, 221-222 (2) (391 SE2d 918) (1990), on which the State relies. In Broomall the newly discovered information was in possession of an insurance agent, not law enforcement, and was provided to the defendant prior to trial.


text:
    A97A2058.
    DOBBINS v. BI-LO, INC.
    (494 SE2d 397)
   Johnson, Judge.

Betty Dobbins sued Bi-Lo, Inc. for injuries she sustained when she slipped and fell on one or more strawberries in the produce department of a grocery store owned by Bi-Lo. Bi-Lo moved for summary judgment, arguing that it lacked knowledge of the foreign substance and that Dobbins failed to exercise ordinary care for her own safety. Dobbins appeals from the grant of Bi-Lo’s motion for summary judgment. We reverse.

Decided January 8, 1998

Harriss, Hartman, Aaron, Wharton & Boyd, James A. Secord, for appellant.

Leitner, Williams, Dooley & Napolitan, David W. Noblit, Robert P. Manning, for appellee.

In Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), the Supreme Court of Georgia expressly reminded members of the judiciary that “the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.” The Robinson Court further stated that it purported to “lighten the load” placed on slip and fall plaintiffs by many of our recent decisions. Inasmuch as issues of fact remain which may be resolved only by a finder of fact, summary judgment was not authorized in this case.

Judgment reversed.

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


text:
    A97A2159.
    MOBLEY v. THE STATE.
    (495 SE2d 598)
   Judge Harold R. Banke.

The initial trial in this case ended in a mistrial. After a second trial, Gurnell Mobley was convicted of manslaughter, two counts of aggravated assault, and criminal trespass. He enumerates four errors, three of which challenge the trial court’s refusal to strike jurors for cause.

This case arose after Mobley’s former girl friend began seeing the victim. After the girl friend spurned his attempts to see her, Mobley broke into her home, got a knife from the kitchen, and walked into a bedroom where she lay sleeping with the victim. Mobley cut the phone cord, hit his former girl friend, and held the knife to her chin. Then, after a struggle, he stabbed the victim in the chest. Held'.

1. The trial court’s refusal to strike Juror 16 for cause based upon her admission that she had been raped at knifepoint 20 years before does not require reversal. Hardy v. State, 210 Ga. App. 811, 812 (1) (437 SE2d 790) (1993). The juror stated that she could be fair and impartial notwithstanding the emotions the evidence might arouse. In the absence of any evidence showing 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,” we cannot say that the trial court abused its discretion. Greenway v. State, 207 Ga. App. 511, 513 (3) (428 SE2d 415) (1993).

2. We reject Mobley’s contention that the affiliations with law enforcement acknowledged by Jurors 8 and 10 disqualified them. Juror 8 stated that she had been a federal park ranger for three summers years before. Juror 10, a hospital administrator, stated he had worked in security at the hospital nine years previously. Inasmuch as former law enforcement officers are not automatically disqualified from serving on juries and both jurors stated that they could be fair and impartial, the trial court did not abuse its discretion in refusing to strike them for cause. Potts v. State, 261 Ga. 716, 722 (8) (410 SE2d 89) (1991); Greenway, 207 Ga. App. at 513 (3).

3. The trial court’s rejection of Mobley’s proposed jury charge on the relation between voluntary manslaughter and self-defense was not reversible error. The record shows that the trial court instructed the jury on both voluntary manslaughter and self-defense. As the trial court observed, the proposed charge was confusing. See Lindley v. State, 225 Ga. App. 338, 342 (2) (a) (484 SE2d 33) (1997). Moreover, the charge given, as a whole, was not misleading and substantially covered the matters at issue in a way not likely to confuse the jury. Leigh v. State, 223 Ga. App. 726, 731 (3) (478 SE2d 905) (1996); see Asbury v. State, 175 Ga. App. 335, 337 (2) (333 SE2d 194) (1985).

4. Mobley claims the trial court abused its discretion in refusing to strike Juror 11, who asserted that he had formed an opinion about the case during voir dire. Because the record shows that this juror was excused, this enumeration lacks merit.

Judgment affirmed.

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

Decided January 8, 1998.

Alicia C. Head, for appellant.

Paul L. Howard, Jr., District Attorney, Cari K. Johanson, Assistant District Attorney, for appellee.

       Mobley has included no citations to the requested charge in the record, and it is not among the written requests for instruction to the jury included in the record. See Court of Appeals Rule 27 (c) (3) (i). The State, however, does not dispute that the requested charge stated the following: “Voluntary Manslaughter — Relation to Self Defense. The distinguishing characteristic between voluntary manslaughter and justifiable homicide is whether the accused was so influenced and excited that he reacted passionately rather than simply to defend himself. Circumstances which are sufficient to show voluntary manslaughter, as opposed to justifiable homicide, include a situation in which sudden passion, or fear, is aroused in the actor, without malice aforethought, and the actor willfully kills his attacker, when it was not necessary for him to do so in order to protect himself. The fear engendered by danger can be sufficient provocation to excite the passion necessary for voluntary manslaughter.”