text:
    76287.
    BROOKS v. COLISEUM PARK HOSPITAL, INC.
    (369 SE2d 319)
   Birdsong, Chief Judge.

This is an appeal from judgment entered on a jury verdict for the defendant, Coliseum Park Hospital, Inc., d/b/a Coliseum Psychiatric Hospital, in a medical malpractice action in which Mrs. Lucille M. Sterling, through her guardian, sought damages from the hospital, alleging that the hospital was negligent in not placing side rails on her bed, and in not having an attendant with her, and that because of such alleged negligence, Mrs. Sterling fell and broke her hip. An amended complaint also sought damages for the alleged negligent act of the hospital in failing to provide assistance to Mrs. Sterling in feeding herself, and claiming that because of such failure, she spilled her food and burned her thigh.

On June 20, 1984, Mrs. Sterling was admitted to the Coliseum Psychiatric Hospital, and shortly thereafter was transferred to its Special Care Unit for evaluation and treatment. She was 69 years old and suffering from Alzheimer’s disease. She had “severe mood swings,” experienced delusions and hallucinations, and had refused to eat or take her medication. Mrs. Sterling’s daughter and another friend advised hospital personnel that Mrs. Sterling had been sleeping in a hospital bed at home, with side rails. When they visited her at the hospital, Mrs. Sterling was found wandering around the hospital, and sleeping in other people’s beds. Mrs. Sterling’s daughter said her mother “basically [was] very confused” and felt more secure in a bed with side rails, and she requested the hospital provide side rails for her mother. During one visit the daughter saw a burn on her mother’s thigh, which looked as if it had not been treated and brought it to the attention of the hospital’s staff.

At 3:00 a.m. on the morning of July 29, 1984, Mrs. Sterling had been restless that night and the nurse on duty gave her Dalmane, a “hypnotic agent” to assist her in sleeping. Some side-effects of Dalmane are “nocturnal confusion,” “restlessness,” and “difficulty in walking. . . .” However, these are also the same symptoms exhibited by persons with Alzheimer’s disease.

Gregory Land, a psychiatric technician, in the hospital’s Special Care Unit, was on duty the morning of July 29, and had seen Mrs. Sterling several times before 4:15 a.m. He was at his desk, completing paperwork, when he heard a noise and saw Mrs. Sterling “was out of bed and walking unevenly toward the door of her room, and within a few steps she ran into the door frame of the door and then fell to the floor.” He was aware that the nurse had given Mrs. Sterling Dalmane at 3:00 a.m., and when he saw her, he began to stand up, but he could not get to her before she walked into the door frame. It was only “seconds” before he got to her, checked her briefly, and returned her to her bed where Nurse Brittain checked her and found nothing obviously wrong. There was no apparent injury.

However, x-rays revealed “a base-of-the-neck fracture” of her hip which required a “hip-nailing” device be placed over the area of the fracture. The device used to stabilize the fracture is called a “Ken nail.” In September, 1984, x-rays showed “healing was complete” and Mrs. Sterling was discharged from medical treatment for her broken hip. Later, infection manifested itself in the hip and the area where the “Ken nail” had been implanted had to be opened and drained. Finally another operation was required to remove the old Ken nail, cleanse the area, and implant a new Ken nail.

Dr. Jimmy Asbell, testifying for the plaintiff, was of the opinion that the infection could have been implanted at the first operation, or that Mrs. Sterling “herself could have seeded a bacteria to this area where the implant was.” On cross-examination, the doctor testified that he would not state with any “reasonable medical certainty that this bacteria was introduced as a result of the fracture or the surgery to repair the fracture. . . .”

Nancy R. Murphy, a registered nurse, graduate of St. Clair’s Hospital School of Nursing, also has a BS from Southwest Texas State University, a Master of Education from Mississippi State, and a Juris Doctor degree from Woodrow Wilson College of Law, who is now working as a lawyer, and has appeared as an expert witness for the prosecution in six cases, is of the opinion that “since there were no side rails on the bed, her [Mrs. Sterling’s] safety was compromised.” In her opinion, “the placing of side rails [is] a matter of a nursing decision . . .” and a physician is not required for a nurse to place side rails on a patient’s bed. Ms. Murphy was aware of Coliseum’s Psychiatric Hospital Policies and Procedures Manual, which stated that “Vindications for the use of side rails include, but are not necessarily limited to, (1) 65 years of age or above; (2) requiring restraints; (3) difficulty raising self up in bed, and (4) restless sleeping habits.” Ms. Murphy admitted that if Mrs. Sterling’s personal physician was of the opinion that side rails would make the patient less safe, she would change her opinion.

Mrs. Sterling’s personal doctor, Dr. Ray H. McCard, a physician and a psychiatrist, testified that he was contacted by her family and he recommended Mrs. Sterling be admitted to the Coliseum Psychiatric Hospital’s Special Care Unit. The special care unit was “closed” so that patients could not leave, and the patient received more supervision and care. He diagnosed Mrs. Sterling as suffering from Alzheimer’s disease, which is also called “organic brain syndrome . . . sort of a deterioration . . . she had a lot of hardening of the arteries and narrowing of the blood vessels going to her brain . . . leading to the cerebral atrophy. . . .” She was severely disturbed mentally and had physical problems. She had paranoid delusions and thought someone was trying to hurt her. The doctor was aware that the hospital was not using side rails, but the beds in the psychiatric unit are closer to the floor and lower than a regular hospital bed. Side rails can be added to the bed, if desired. Dr. McCard was asked: “Q. Did you feel at any time that side rails were appropriate and should have been added to that bed? A. No, I did not ... a philosophy has gradually evolved over a period of time concerning side rails, and side rails in older confused individuals can be quite dangerous because, in a confused state, older people will try to get out of bed, and by trying to get out of bed, they, of course, are not recognizing the danger associated with what they’re doing, and they will crawl over the side rails, which increases the length — the distance a person can fall . . . the philosophy now is that if you put up side rails in [sic] a person who is confused . . . then you should put some form of restraint of them. ... So we did not utilize side rails, which, in turn, would have also warranted the use of some type of restraint. . . .”

Dr. McCard stated that in dealing with an individual with Alzheimer’s, such as Mrs. Sterling, because she had osteoporosis, “which means fragile bones,” and had three compression fractures of her spine, they did not want to keep her restrained, “which would have been safe . . . but would not have been for her best interest. . . we did not want to aggravate her by tying her down . . .” which would have been required if side rails had been put on the bed. He did not think Mrs. Sterling would “acknowledge the significance of the side rails” and could have injured herself in attempting to get out of bed. He attempted “to create the most therapeutic situation for her” and had prescribed other medication, and could have ordered the side rails, but he would not order restraint as Mrs. Sterling “usually could walk steadily enough that you didn’t worry about — about her being up and on the unit. . . .” In his opinion, the hospital, by and through its staff, exercised that degree of skill, care and diligence generally exercised under similar conditions and like circumstances. Dr. McCard was aware of the burn suffered by Mrs. Sterling, and that she received treatment for the burn when ice was placed on the burn area and Furacin ointment was then applied. He was of the opinion that good medical practice was followed by the hospital in the treatment of the burn.

Lita M. Holder, an RN, who has a master’s degree in Psychiatric Nursing from the Medical College of Georgia, and a doctorate in education from the University of Georgia, found Mrs. Sterling to be suffering from Alzheimer’s — very confused, had delusions and hallucinations, and physically, had “angina . . . Raynaud’s Disease . . . osteoporosis and a hiatel hernia. . . .” She stated that psychiatric nursing’s goal was “to always try to help the client reach their maximum level of functioning.” Lang stated that they encouraged the patients to feed themselves, but sometimes they needed help. Mrs. Sterling had “good days and bad days.” She was able to walk around the unit by herself, and would feed herself “on occasions.” Lang encouraged Mrs. Sterling to feed herself.

The jury found for the appellee hospital and judgment was entered on the verdict. Appellant has filed this appeal. Held:

1. Appellant requested the trial court to charge “that the plaintiff must show that, prior to the fall, she was in a semi-conscious state, or under the influence of drugs, such as to cause the employees of the hospital to reasonably apprehend that the patient’s condition required the constant attendance of a nurse or other employee and/or the putting up of the side rails on the bed.” This request was denied and the denial is enumerated as error.

The respective positions of the parties at trial were that appellant contended the nurses had the authority to put up side rails under the hospital’s policy and procedure guidelines, and should have installed the rails because of the mental and physical condition of Mrs. Sterling; and the hospital established that the patient’s personal physician was primarily responsible for the care and treatment of the patient, and Mrs. Sterling’s personal physician not only had not requested side rails, but was opposed to them.

Appellant’s personal physician, Dr. McCard, testified that the hospital nurses performed an important function in the care and treatment of patients, but they were “carrying out the directions and orders of the physician who ultimately has the responsibility for the patient.” And, in this instance, the patient’s personal physician was against the use of side rails for an elderly patient with Alzheimer’s disease, because of her mental confusion and possibility of injury if she attempted to climb over the side rails.

“ ‘ “A private hospital is under the duty to exercise such reasonable care in looking after and protecting a patient as the patient’s condition which is known to the hospital through its agents and servants charged with the duty of looking after and supervising the patient may require. This duty extends to safeguarding and protecting the patient from any known or reasonably apprehended danger from himself which may be due to his condition, and to use ordinary and reasonable care to prevent it.” ’ ” Johnson v. Parnes, 163 Ga. App. 404, 405 (294 SE2d 624); accord Allrid v. Emory Univ., 249 Ga. 35, 41 (285 SE2d 521); Doctors Hosp. of Augusta v. Poole, 144 Ga. App. 184 (1) (241 SE2d 2); Hospital Auth. &c. v. Adams, 110 Ga. App. 848, 852 (140 SE2d 139). Further, “ ‘[t]he mere failure by a hospital to furnish a constant attendant to a patient does not constitute negligence. It is not the law of this state that one patient is entitled to one attendant at all times. However, a hospital is under the duty to exercise such reasonable care in looking after and protecting a patient as to the patient[’]s condition known through its agent charged [with] the duty of looking after and supervising the patient may require [sic].’ ” Cobb County &c. Hosp. Auth. v. Crumbley, 179 Ga. App. 896, 897 (348 SE2d 49). The mere fact of injury does not give rise to a presumption or inference of negligence, because negligence is not to be presumed, but is a matter for affirmative proof. Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 524 (317 SE2d 853). And, in the absence of affirmative proof of negligence, we must presume there was a performance of duty and freedom from negligence. Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 368 (203 SE2d 587).

Decided May 2, 1988.

John A. Draughon, Edward S. Sell III, for appellant.

R. William Buzzell II, Susan S. Cole, for appellee.

The charge given by the trial court was full and fair, adjusted to the facts of this case, and adequately covered the issues presented. It is not error to refuse to give a requested charge when the jury is accurately and fully charged on the relevant law for the issue covered by the requested charge. Ponder v. Ponder, 251 Ga. 323 (3) (304 SE2d 61); Freeman v. Saxton, 243 Ga. 571, 573 (255 SE2d 28); Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 18 (3) (195 SE2d 417); Green v. Gaydon, 174 Ga. App. 796, 798 (331 SE2d 106). This enumeration is without merit.

2. At the close of the evidence, appellant moved for a directed verdict on the issue of the hospital’s liability for the burn on Mrs. Sterling’s thigh. The motion was denied and the question submitted to the jury. Mrs. Sterling’s personal physician stated that he had attempted “to create the most therapeutic situation” for her. And, Ms. Holder, the psychiatric nursing expert, testified that psychiatric nursing’s goal was “to always try to help the [patient] reach the maximum level of functioning.” To that end, the psychiatric technician, Lang, encouraged Mrs. Sterling to feed herself, that she had “good days and bad days,” and on occasion she could feed herself. However, the injury occurred.

As stated above, the mere fact that an injury occurred is not dis-positive on an issue of negligence, for negligence is not to be presumed, but is a matter of affirmative proof. Famble, supra at 524. Except in plain, palpable, and indisputable cases, questions of negligence are solely for jury determination. Johnson, supra at 405. Hence, unless no other conclusion is permissible, questions of negligence are matters for jury resolution. Cowart v. Five Star Mobile Homes, 161 Ga. App. 278, 279 (291 SE2d 13); Epps Air Svc. v. DeKalb County, 147 Ga. App. 195 (1) (248 SE2d 300). The evidence did not demand a finding that the hospital’s actionable negligence was the cause of the injury. Thus, the trial court did not err in denying appellant’s motion for directed verdict.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    76462.
    GULLEY v. THE STATE.
    (369 SE2d 326)
    Decided May 2, 1988.

      Linda S. Cowen, for appellant!

      Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.
   Banke, Presiding Judge.

The appellant was convicted of violating the Georgia Controlled Substances Act by trafficking in cocaine. On appeal, his sole enumeration of error concerns the admission of the cocaine into evidence over his objection that the state failed to establish a sufficient chain of custody.

The cocaine was seized during the course of a search conducted at Atlanta’s Hartsfield International Airport. The substance was placed in an evidence bag which was then heat-sealed, marked for identification, and sent by registered mail to the Drug Enforcement Administration (DEA) laboratory in Miami, Florida. At the DEA lab, the package was assigned a lab number and placed in an evidence vault until such time as it was tested by the forensic chemist. Held:

The burden is on the state “ ‘to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.’ [Cit.]” Anderson v. State, 247 Ga. 397, 399 (2) (276 SE2d 603) (1981). The identity of the substance need not be proved beyond all possibility of doubt. “The circumstances need only establish reasonable assurance of the identity of the sample.” Patterson v. State, 224 Ga. 197, 199 (2) (160 SE2d 815) (1968). The appellant’s bare allegation that the evidence might have been tampered with is insufficient to defeat the state’s showing in this regard. It follows that the evidence in this case was properly admitted. See Baker v. State, 137 Ga. App. 33 (222 SE2d 865) (1975).

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


author: Deen, Presiding Judge.

text:
    76501.
    In the Interest of R. E. C. et al.
    (369 SE2d 323)
   Deen, Presiding Judge.

This appeal is from an order of the Juvenile Court of Cobb County terminating the parental rights of appellants in their two young daughters.

In his order, the trial judge noted that a termination petition was filed on September 26, 1985, and that after a trial, the court had terminated the parental rights of appellants in their two children. A notice of appeal to this court was filed and the case was docketed, but the parties consented to the grant of a new trial, and this court allowed the appeal to be withdrawn. The new trial was held on October 2, 1987, and it was agreed between the parties that all testimony and evidence presented in the 1985 trial be stipulated as evidence in the new trial. In addition, both sides offered further testimony to support their positions.

The children in question, G. M. C. and R. E. C., were born on October 14, 1982, and August 19, 1984, respectively. The parents were married in January 1980 and divorced in October of 1981. They reunited shortly thereafter and held themselves out as husband and wife. They separated again in April 1987 and reunited eight days before trial. In addition to the two children who are the subjects of this proceeding, the couple had another daughter, C. L. C., born April 23, 1980, who was placed in protective custody by the Cobb County Police when she was six months old upon allegations of abandonment and medical neglect. In May of 1982, the Cobb County Department of Family and Children Services filed a petition to terminate appellants’ parental rights in the child. A few days later they consented to the termination.

In April of 1983, when G. M. C. was six months old, the DFCS received complaints about her care, and in December the parents were ordered by the juvenile court to comply with certain terms and conditions regarding her care. They did not comply, and the trial transcript of the first termination trial contains a caseworker’s testimony as to the incredibly filthy conditions under which the child was kept and the extreme neglect to which she was subjected. Her little body was covered with cradle cap, sores and bruises. She was discovered clothed only in a diaper in 45°F. weather, and was very lethargic. The court ordered that her custody be temporarily placed in the DFCS. In May of 1984, she was returned by the Department to her parents subject to their compliance with conditions contained in the court order. The department offered the parents homemaker services, but the offer was declined. Thereafter, a caseworker was initially refused entry into their apartment because it was so filthy. The caseworker made appointments for the child to have a medical appraisal by the Health Department, but the parents did not keep the appointments, although admitting that they had transportation.

After the birth of R. E. C., the department received a protective services referral from a social worker at the hospital. The child was born with a high level of bilirubin, which could cause brain damage if left untreated. The doctor wanted to keep the baby in the hospital an extra day for observation, but the parents assured him that they would bring her back for repeat tests. When they did not return, the doctor attempted to locate them. They were finally located later that night at a Waffle House. When the baby was finally returned to the hospital, her bilirubin level was so high that she needed to be admitted, but the parents signed her out of the hospital against medical advice.

In 1984 the family’s living conditions deteriorated even further after they moved into a trailer. The conditions, were, in fact, found to be very dangerous by a caseworker, who noticed lighter fluid sitting next to a stove, sharp metal objects near a crib, and cigarette butts everywhere.

In January of 1985, a public health nurse examined the baby and found her to be filthy, pale, and with a bland expression on her face. The child also had a black eye, which the mother claimed to be self-inflicted. The nurse next saw the baby at home and wanted to arrange for a medical appraisal in the health department, but the parents refused to take her for examination. It was finally agreed that a caseworker would bring the mother and children to the department the next morning. R. E. C. was found to have congested lungs, a low hematocrit, small head circumference, poor circulation and underdeveloped muscles, and to be underweight and under height for her age. The mother did not keep a doctor’s appointment made for the child by the public health nurse. G. M. C. was also assessed for a nutritional support program and a free iron supplement was prescribed, but the mother did not pick it up. A few days later, when the nurse returned to the trailer, the younger child was still in the same congested condition and wheezing. She was clad only in a diaper on a very cold day. The nurse advised the parents to take her to the emergency room. The record is unclear as to whether they complied.

There was also testimony as to the unsanitary conditions that existed in the home. In August of 1984, when a police detective executed an ex parte order to take R. E. C. into custody, he was so shocked by the family’s living conditions that he also took the other child into custody. In September 1984, temporary legal custody of the children was granted to the DFCS. In October the children were again placed with their parents, and by January of 1985 both children were found to be physically, emotionally, and medically neglected. They were returned to foster care after receiving hospital treatment. The children have been in foster care since that time.

The evidence further showed that appellants were evicted from their apartment in July of 1985 for failure to clean it. Thereafter they lived in their automobile while traveling around the southeast, and then stayed in and out of hotels until they separated. Prior to returning to the children’s father, the mother lived with her sister, her sister’s boyfriend, and their children in a small apartment which social workers also found to be incredibly filthy. The mother claimed that she was babysitting for her sister’s children and helping care for them, but the living conditions became so bad that the department had to provide homemaker services. The mother told a caseworker that she was hiding from her husband because she didn’t want him to “find me and start messing with me.” The couple resumed living together at his grandmother’s residence some eight days prior to the last trial.

The evidence further showed that the parents have contributed nothing to their children’s support while they have been in foster care. The father has had no contact with them. The mother visited them regularly before the first trial. She has enrolled in parenting classes but has attended only three classes. The father attended one class a few days before trial. Since they married in 1980, neither of the parents has been employed, and both receive Supplemental Security Income payments which are made to a protective payee. Neither parent knows why they receive these payments and both seem to think it has something to do with “nerves.” The mother does some volunteer work sorting clothing in a thrift shop. The evidence also showed the couple to be out of touch with reality. The mother could not recall what she had for lunch that day or even where she had spent the night. She was late for court because she had to wash her hair, and the father claimed that he overslept.

The trial judge found that the couple has consistently failed without justification to comply with court orders designed to promote the proper care and well-being of their children, and to avail themselves of supportive services from DFCS which would assist them in maintaining and providing proper care for the children. They were found to be unfit parents whose children have suffered and would continue, in their custody, to suffer serious physical, mental and emotional harm. The court found that it would be in the best interests of the children to terminate parental rights. Held:

In making its ruling, the court below found that the evidence established. “by the clear and convincing standard that R. E. C. and G. M. C. are deprived children and that lack of parental care and control by respondents is the cause of such deprivation and that such deprivation is likely to continue or will not be remedied in the future, thereby causing serious physical, mental, emotional and moral harm to the children. There being clear and convincing evidence of parental misconduct or inability, the court further finds from the evidence herein by the clear and convincing standard that termination of parental rights is in the best interest of the children.”

The trial court’s findings of fact were more than amply supported by the evidence, and the standard for judging parental misconduct as set forth in OCGA § 15-11-81 (a) and (b) was properly applied. R. E. C. and G. M. C. were determined to be deprived by order of the juvenile court on September 25, 1984, and no appeal was taken from that order. The lack of parental care and control has been apparent for the entire short lives of these children. They have been totally neglected whenever they were placed in their parents’ care. The parents have shown little interest in developing parenting skills. Indeed, the father has shown no interest in being a parent, as he had never visited his children since they have been in foster care. The conditions under which these small children were forced to live whenever they were with their parents constituted criminal acts of mental and physical child abuse rather than mere neglect. See In re L. A., 166 Ga. App. 857, 861 (305 SE2d 636) (1983). These parents have also failed to provide any support for their children for the more than three years that they have been in foster care. Both parents have had sufficient time to show that they can care for their children but have failed to do so, and the court was authorized to find that the deprivation and neglect were likely to continue. See In re L. A., supra. Moreover, appellants are not employed, do not have their own home, and are not competent to receive their SSI checks in their own names.

Decided May 2, 1988.

Robert I. Donovan, for appellants.

Robert J. Grayson, Michael J. Bowers, Attorney General, Marion O. Gordon, First Assistant Attorney General, Carol A. Cos-grove, Senior Assistant Attorney General, for appellee.

“The trial court had the opportunity to question and observe the parties, and possesses a wide discretion in determining the issues before him, and if the judgment is supported by any evidence and is not clearly erroneous, an appellate court is not authorized to set it aside.” In re H. B. & K. B., 174 Ga. App. 435 (330 SE2d 173) (1985). Accordingly, we find that the trial court correctly found that there was present clear and convincing evidence of parental misconduct or inability, as set forth in OCGA § 15-11-81 (a) and (b), and his decision to terminate parental rights will be sustained.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Sognier, Judge.

text:
    76192.
    COVRIG v. CAMPBELL.
    (369 SE2d 293)
   Sognier, Judge.

K. C. Campbell, d/b/a Campbell Surveying and Mapping, brought suit against Alex Covrig to recover $1,200 for surveying services he performed for Covrig. Covrig filed a direct appeal from the trial court’s grant of summary judgment in favor of Campbell for $1,200 plus accrued court costs.

Decided April 21, 1988

Rehearing denied May 3, 1988

Alex Covrig, pro se.

W. David Cunningham, for appellee.

“Effective July 1, 1984, applications for discretionary appeals are required in ‘[a]ppeals in all actions for damages in which the judgment is $2,500.00 or less.’ OCGA § 5-6-35 (a) (6). This statute unambiguously refers to ‘judgments’ in general and we therefore construe it to be applicable to judgments in the amount of $2,500 or less obtained by verdict following a bench or jury trial as well as by summary judgment. [Cit.] Thus, because the appellant failed to follow the provisions required by OCGA § 5-6-35 (b) for cases in which an application for appeal is required, this direct appeal must be dismissed. [Cits.]” Jarrett v. Ford Motor Credit Co., 178 Ga. App. 600-601 (344 SE2d 440) (1986).

Appeal dismissed.

Deen, P. J., and Carley, J., concur.


text:
    76492.
    MITCHELL v. THE STATE.
    (369 SE2d 487)
   Deen, Presiding Judge.

The appellant, Ed Hill Mitchell, was indicted and tried for aggravated assault with intent to murder his mother, two counts of aggravated assault upon his mother with a deadly weapon, and making terroristic threats to his sister, all charges stemming from an incident that took place on November 30, 1986. Mitchell entered a special plea of insanity. The jury found him guilty but mentally ill of aggravated assault with intent to murder, one count of aggravated assault, and making terroristic threats, and this appeal followed.

Mitchell lived with his mother and sister in a duplex. He had an extended history of mental illness and substance abuse. According to Mitchell’s sister, he had been in and out of mental institutions as an adult. Diagnosed as a paranoid schizophrenic, he had been hospitalized at the Georgia Mental Health Institute for much of the time from August 1985 until July 1986. In October 1986, Mitchell was picked up for involuntary psychological evaluation, after he told his sister that she was fixing to die because an angel told him to beat her brains out with a baseball bat. Mitchell’s sister also recounted that he would never take his medication for his schizophrenia, but would continually get “high” sniffing glue, or paint, or even bug spray.

The incident of November 30, 1986, apparently was precipitated by Mitchell’s mother’s insistence that his dog stay outside. Mitchell became upset, cursed his sister, and then remarked, “I will stab everything in the house. I will kill everything in the house.” He then picked up a lamp and approached his sister, but desisted momentarily when his mother interceded. However, he quickly became angry again, picked up the lamp, and began beating his mother over the head. Mitchell’s sister ran out of the house to get help. Paul Jackson, who lived in the other half of the duplex, heard screaming and knocked on the Mitchells’ door; Mitchell came to the door, holding a can opener in his bloody hand, and told him, “If you come in, I will kill you.” Jackson then went back to his apartment and called the police.

Shortly thereafter, a police officer arrived and secured Mitchell in his patrol car. After rendering aid to Mitchell’s mother, the officer returned to his patrol car, at which point Mitchell uttered that he “should have killed the whole fucking house because they were evil,” and that he would not do time for what he had done.

At the station he made the following statement. “On November 30, 1986, at approximately, sometimes this morning, I am not sure what time. This morning I was coming home and my little dog, Bandit, was outside and I wanted him to come in because of the weather. My mother and my sister, Lady, reject that and I got upset. I took the lamp and beat my mother in the face until I could beat her no more. Then I took the skillet off the stove and hit her in the head with it. I called the police and they came and got me. I told the officer that I was the one and that I had almost committed a murder.”

The following question and answer session was also recorded: “Q: Do you care what happened to your mother? A: No, I don’t. I don’t care bout my mother and I don’t care anything about blackness period. I would put them in hell today if I had the power because they ain’t nothing but unclean, filthy, nasty, sissy bitches. Q: What would you do if you got out of jail? A: I would kill nothing but black people just like the man that killed all the little kids, what’s his name? Wayne Williams? Q: Do you go to mental health facilities? A: Yes, I ain’t been taking my medicine lately. I got out on Scott Boulevard every two weeks but I haven’t been lately and I have tried to commit suicide three times but God just will not let me pass. I have asked God to show me my life and the purpose of my life but he will not. I gave my life to mental health in 1972, when I realized that I had a problem. Q: Have you been treated fairly by the police today? A: The white police have, but that black police said that if he could, he would blow my brains out. Q: Is there anything else that you want to add to your statement? A: I can’t be happy because I love a white man and a white woman. That’s all.”

A psychiatrist, court-appointed to determine whether Mitchell was competent to stand trial and whether he was responsible for his behavior at the time of the incident, interviewed Mitchell twice before the trial. Other than when Mitchell claimed that he and the jail had formed a conspiracy to trap God in one of the jail cells, the psychiatrist generally found Mitchell to be in contact with reality. During the interviews, Mitchell had explained that he had beaten his mother because the Devil had instructed him to stop her from putting his dog out, else she might hurt the dog. The psychiatrist concluded that, although Mitchell was delusional at the time of the incident, he had not acted out of compulsion, because a compulsion required a perceived situation that if one failed to act, something catastrophic would happen. He also concluded that Mitchell probably knew the difference between right and wrong. The staff psychiatrist who had treated Mitchell during his hospitalization at Georgia Mental Health Institute also testified that Mitchell knew right from wrong, that he comprehended the necessity of continuing to take his medication for schizophrenia, and that Mitchell was capable of choosing to take those medications. Held:

1. Mitchell contends that the verdict of guilty but mentally ill cannot stand, because the evidence showed that at the time of the incident he was unable to distinguish right from wrong and was acting under a delusional compulsion. Under OCGA § 16-3-2, a person is not guilty of a crime if he lacked the mental capacity to distinguish between right and wrong at the time of the incident in question; under OCGA § 16-3-3, a person is not guilty of a crime if, because of a mental illness, he acted under a delusional compulsion which overmastered his will to resist committing the crime. The only evidence concerning Mitchell’s capacity to distinguish between right and wrong was the psychiatric opinion that he retained that capacity despite that mental illness. Concerning the issue of delusional compulsion, the uncontroverted evidence was that while Mitchell was delusional, he had not acted under a compulsion. Given this evidentiary posture, we concluded that “after reviewing the evidence in the light most favorable to the state, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the crime.” Brown v. State, 250 Ga. 66, 71-72 (295 SE2d 727) (1982).

Mitchell also contends that his conviction for making terroristic threats cannot stand because it was based upon “the uncorroborated testimony of the party to whom the threat is communicated.” OCGA § 16-11-37. Only slight circumstances are needed to corroborate a victim’s testimony, for purposes of OCGA § 16-11-37. Ellis v. State, 176 Ga. App. 384 (3) (336 SE2d 281) (1985). In the instant case, the terroristic threat consisted of Mitchell’s declaration to his sister that he would kill everything in the house, followed by his picking up a lamp and approaching his sister. The necessary corroboration of the occurrence of the terroristic threat was provided by (1) the victim’s recounting Mitchell’s previous threat against her which resulted in a brief involuntary hospitalization for psychological evaluation, (2) the fact that moments later Mitchell did use the lamp in a vicious assault upon his mother who had interceded on behalf of the sister, and (3) the arresting officer’s testimony that Mitchell had uttered to him in the patrol car that he should have killed everyone in the house.

2. Under OCGA § 16-3-3, a defendant may not be guilty of a criminal act where he acted under a delusional compulsion, but the delusion must be as to a fact which, if true, would have justified the act. Stevens v. State, 256 Ga. 440 (350 SE2d 21) (1986). In charging the jury on delusional compulsion as a defense, the trial court further instructed the jury on when a person is justified in using force against another person, tracking the language of OCGA § 16-3-21 (a) concerning use of force in defense of self or others. Mitchell contends that by so charging the jury, the trial court as a practical matter told the jury that keeping the dog from being put outside did not justify his attacking his mother. The trial court simply stated the correct law on justification; it was the jury that decided protection of the dog constituted no legal justification for Mitchell’s assault on his mother.

Mitchell also contends that the jury instruction was incomplete, as it did not inform the jury that justification may also exist “[i]n all other instances which stand upon the same footing of reason and justice as those enumerated in this article.” OCGA § 16-3-20 (b). However, ensuring that one’s dog gets to stay inside a house hardly stands upon the “same footing of reason and justice” as defending oneself or another against the imminent use of unlawful force by a third party, or any other situation enumerated in OCGA § 16-3-20 et seq.

3. Mitchell contends that the trial court erred in giving incomplete jury instructions on voluntary and involuntary intoxication. The trial court defined involuntary intoxication only to aid the jury’s understanding of voluntary intoxication. The trial court did not instruct the jury on the legal excuse that involuntary intoxication may furnish under OCGA § 16-3-4 (a), and such an instruction would have been inappropriate in the instant case. The only intoxication shown in this case was Mitchell’s chronic drug abuse, which, like chronic alcoholism, is not involuntary under the law. McLaughlin v. State, 236 Ga. 577 (4) (224 SE2d 412) (1976).

Concerning voluntary intoxication, the trial court did charge the jury in accordance with OCGA § 16-3-4 (c) that voluntary intoxication is not an excuse for any criminal act, but omitted any instruction that if intoxication rendered Mitchell incapable of forming the requisite intent, Mitchell would not be criminally responsible. However, this court has previously held that it is not error to refuse to charge that voluntary intoxication can negate the specific intent for a crime. Williams v. State, 180 Ga. App. 854 (2) (350 SE2d 837) (1986); Faircloth v. State, 175 Ga. App. 130 (332 SE2d 686) (1985).

The first Chief Justice of our Georgia Supreme Court, Joseph Henry Lumpkin, has observed in areas such as this: “ [Responsibility depends upon the possession of will — not the power over it. Nor does the most desperate drunkard lose the power to control his will, but he loses the desire to control it. No matter how deep his degradation, the drunkard uses his will whenever he takes his cup. It is for the pleasure of the relief of the draught, that he takes it.” Choice v. State, 31 Ga. 424, 473 (1860). As to related issues of voluntary imbibing of intoxicants, whether a product of the will versus whether it is a disease, see Burger v. State, 118 Ga. App. 328 (163 SE2d 333) (1968), and Grimes v. Burch, 223 Ga. 856 (159 SE2d 69) (1968). (When indulging in the Pierian Spring, however, it is noted that a different rule obtains: “[H]e drank deep of the Pierian Spring where shallow draughts intoxicate the brain and deep drinking sobers one again.” In Memoriam to Judge Spencer R. Atkinson, 150 Ga. 835, 857.)

4. Mitchell asserts that the trial court improperly entered judgment and sentence for both aggravated assault with intent to murder and aggravated assault with a deadly weapon, on the basis that under the facts of this case the two offenses merged. We are compelled to agree. Both charges referred to Mitchell’s assault on his mother, and the evidence actually showed only one attack upon his mother, i.e., when Mitchell beat his mother with a lamp. Since the facts adduced to prove the offense of aggravated assault with intent to murder were the same facts used to prove the offense of aggravated assault with a deadly weapon, as a matter of fact the latter must be considered an offense included in the former. OCGA § 16-1-7 (a); Luke v. State, 171 Ga. App. 201 (2) (318 SE2d 833) (1984).

5. The trial court decided against charging the jury on simple battery constituting a lesser included offense of the alleged offense of aggravated assault with intent to murder. Because no written request for such a jury instruction was made, it was not error for the trial court not to give it. State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976). Moreover, because the indictment did not allege any physical contact or harm, a charge on simple battery would have been inappropriate, notwithstanding the fact that a battery actually occurred. Tuggle v. State, 145 Ga. App. 603 (244 SE2d 131) (1978); Anderson v. State, 170 Ga. App. 634 (317 SE2d 877) (1984).

6. The trial court instructed the jury on insanity, mental illness, and voluntary intoxication. In doing so, the trial court also charged that a person who suffers periodic delusional states may not intentionally and voluntarily induce his delusions or mental disorder and then be excused for a criminal act committed during such delusional episode. Subsequently, the jury requested clarification on whether the failure to take medication, which could control a delusional state of mind or maintain the capacity to distinguish right from wrong, relates to the evaluation of that person’s sanity. The trial court, however, declined to answer the inquiry, considering it one of the matters to be deliberated by the jury. While Mitchell correctly points out that “[w]hen the jury is confused and in doubt and requests further instructions on a particular point, it is the duty of the court to further instruct them.” Freeman v. State, 142 Ga. App. 293, 294 (235 SE2d 560) (1977), we agree with the trial court that answering the particular inquiry in this case would have stepped over into the province of the jury.

7. The trial court instructed the jury that if it believed beyond a reasonable doubt that Mitchell was guilty and if it also believed by a preponderance of the evidence that he was mentally ill at the time of the offense, then it would be authorized to find him guilty but mentally ill. Mitchell contends that this jury charge was erroneous because under OCGA § 17-7-131 (c) the jury must find mental illness beyond a reasonable doubt, and because the charge subverts the mens rea requirement of criminal law.

In Spivey v. State, 253 Ga. 187, 189 (2) (319 SE2d 420) (1984), the Supreme Court held that “[t]he statutory provision [of OCGA § 17-7-131 (c) (2)] that such mental illness be proved beyond a reasonable doubt is not constitutionally infirm. [Cit.]” Subsequently, however, in addressing another constitutional attack on the same statute, the Supreme Court explained that “[t]he law places no burden on a defendant to prove that he is not mentally ill, or that he is guilty but mentally ill. The burden is on the state to prove that the defendant is guilty of the crime charged, including the requisite element of intent, beyond a reasonable doubt. The burden is on the defendant to prove he is not guilty by reason of insanity by a preponderance of the evidence. . . .” Keener v. State, 254 Ga. 699, 702 (334 SE2d 175) (1985). Keener seemingly would indicate that the trial court’s jury instruction in the instant case was a correct statement of law, while Spivey seemingly indicates the opposite.

In any event, even if the proper standard for establishing the element of mental illness under OCGA § 17-7-131 (c) (2) is that of “beyond a reasonable doubt,” the trial court’s instruction in this case could not have harmed the appellant. Dimauro v. State, 185 Ga. App. 524 (364 SE2d 900) (1988). This “guilty but mentally ill” statute also does not subvert any mens rea requirement. Id.

8. The trial court informed the jury that it could find Mitchell not guilty, not guilty by reason of insanity, guilty but mentally ill, or guilty. In all cases in which the insanity defense is asserted, the trier of fact must find one of the above alternative verdicts under OCGA § 17-7-131 (b) (1). Under OCGA § 17-7-131 (c) (2), if a jury finds a defendant guilty but mentally ill, it must indicate that finding in its verdict. Such a verdict of guilty but mentally ill does not conflict with the requirement of a general verdict as provided by OCGA § 17-9-2.

Decided April 19, 1988

Rehearing denied May 3, 1988

Carl Greenberg, J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Thomas S. Clegg, Nelly F. Withers, Assistant District Attorneys, for appellee.

9. We reject Mitchell’s argument that informing a jury that it could return a verdict of guilty but mentally ill in effect deprives a defendant of the defense of insanity, on the basis that alternative affords the jury a “palatable verdict” of simultaneously holding a defendant responsible for his actions by finding him guilty, yet mitigating that finding by also finding him mentally ill. The jury was clearly informed of its task of determining the validity of the defendant’s defense of insanity, and of the requirement to find the defendant not guilty by reason of insanity should it accept that defense. We will not assume that informing a jury of the possibility of returning a “guilty but mentally ill” verdict would cause the jury to ignore or avoid that task. Cf. Dimauro v. State, supra.

Judgment affirmed as to the convictions for aggravated assault with intent to kill and making terroristic threats; judgment reversed as to the conviction for aggravated assault with a deadly weapon.

Sognier, J., concurs. Carley, J., concurs in Divisions 1, 2, 3, 4, 5, 6, 8, 9 and in judgment.


text:
    76537.
    HESTER v. THE STATE.
    (369 SE2d 278)
   Deen, Presiding Judge.

Eddie Hester was convicted of two counts of violating the Georgia Controlled Substances Act (possession of cocaine and diazepam), and of being a habitual offender. He was found not guilty of possession of more than an ounce of marijuana.

The evidence showed that appellant brought his Datsun 280Z automobile to an upholstery shop to have the carpet replaced. While there, he entered into a conversation with Knowles, the shop’s owner, concerning change left on the floor of the car, and Hester was informed that everything which was in the car when it was brought in would be left in it although the inside of the vehicle would be cleaned. Hester remarked, “Well, how about if we’ve got some illegal stuff there?” Knowles assured him it also would not be removed. After work was begun on the Datsun, Knowles inquired of the workman if he had seen any “illegal stuff.” The employee stated that he had, and showed Knowles where it was located in a paper bag in a compartment in the rear of the car. After thinking it over, Knowles called the police. Police officers investigated, determined the material to be marijuana, replaced the bag, and had an arrest warrant issued for Hester. After Hester picked up his automobile, he was arrested. The marijuana in the paper bag was seized and yellow tablets, later determined to be diazepam, were found in his pocket during a search of his person. A packet containing cocaine was found on his person when he was booked at the correctional center.

1. Appellant asserts as error the trial court’s denial of his motion to suppress. The evidence shows that the discovery of the paper bag containing marijuana was made by a private citizen. The police responded to a report of discovery of contraband and verified the private citizen’s observation and obtained an arrest warrant.

There is no Fourth Amendment violation where an individual’s privacy is initially invoked by a private act. United States v. Jacobsen, 466 U. S. 109 (104 SC 1652, 80 LE2d 85) (1984). “The additional invasions of respondent’s privacy by the Government agent must be tested by the degree to which they exceeded the scope of the private search,” Id. 466 U. S. 115. As evidence shows that the officer’s search did not go beyond that of private citizen, we find no error. The discovery of the illegal material by a private citizen and the verification of this evidence by the officer which led ultimately to the issuance of the arrest warrant was reasonable and did not violate the Fourth Amendment. State v. Johnston, 171 Ga. App. 224 (319 SE2d 83) (1984) ; Marks v. State, 174 Ga. App. 711, 714 et seq. (330 SE2d 900) (1985) .

“ ‘Once a [person] has been placed under custodial arrest, police may search his person, incident to that arrest, for weapons or contraband.’ [Cits.]” Anderson v. State, 177 Ga. App. 130, 131 (338 SE2d 716) (1985). The seizure of the yellow tablets and packet of white powder from appellant’s person following his arrest was not illegal. The trial court did not err in denying the motion to suppress.

2. The trial testimony established the chain of custody of the contraband with a reasonable certainty.

Where evidence of a fungible nature is introduced against a defendant, the State must show with reasonable certainty that the evidence is the same as that seized and that there has not been any tampering or substitution. The State, however, need not negate all possibility of tampering and “ ‘need only establish reasonable assurance of the identity’ of the confiscated evidence. [Cit.]” Kelly v. State, 182 Ga. App. 7, 9 (354 SE2d 647) (1987).

The arresting officer identified the bag of marijuana and the yellow pills which he seized from the Datsun and appellant’s person. He identified the white powder as the substance that he received from the booking officer. The booking officer verified his testimony. The arresting officer testified that the items were placed in two bags and stapled together in his presence. Evidence cards were completed in his presence, stating from whom the property was obtained, where it was obtained, and the time and the date. It was signed by the evidence intake technician and stored in the evidence locker until a technician took it to the State Crime Lab for analysis. The chemist and evidence technician both testified that the bags were stapled and the paper bag had an evidence tag attached. The fact that the chemist found five yellow tablets and the arresting officer testified that he recovered four does not give rise to an implication of tampering absent evidence of such. The officer apparently made a mistake in remembering the number of tablets he recovered. The chain of custody was proven with reasonable certainty.

3. The trial court did not err in finding that a statement made by appellant after he was informed of his Miranda rights and that the waiver form he executed waiving these rights was voluntary. Appellant stated that the white powder was cocaine, that he was addicted to cocaine, and that the yellow tablets were Valium. He claimed that he did not know anything about the marijuana. Only after he was asked to reveal his source of supply did he request to speak to an attorney. Contrary to appellant’s assertion, we know of no necessity for recording all statements.

Absent a showing that the trial court’s finding that the statement was voluntary is clearly erroneous or a clear abuse of discretion, this court will not reverse. Jackson v. State, 180 Ga. App. 774 (350 SE2d 484) (1986).

4. It is not error for the prosecutor to “argue to the jury the necessity for enforcement of the law and may impress on the jury, with considerable latitude in imagery and illustration, its responsibility in this regard.” Terhune v. State, 117 Ga. App. 59, 60 (159 SE2d 291) (1967).

There was testimony at trial that appellant was “hooked” on cocaine and had it in his possession at the time of his arrest. A statement by the prosecutor that drugs are “killing our society” and pointing out that appellant committed a serious offense was merely pointing out to the jury its interest in law enforcement. This statement did not in any way prejudice appellant’s right to a fair trial.

Judgment affirmed.

Carley and Sognier, JJ., concur.

Decided April 19, 1988

Rehearing denied May 3, 1988

Neil E. Wester III, for appellant.

Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.


author: Beasley, Judge.

text:
    76833.
    LOVELESS v. PICKERING et al.
    (369 SE2d 281)
    Decided April 19, 1988
    Rehearing denied May 3, 1988
    Donald E. Loveless, pro se.

      E. Lewis Hansen, for appellees.
   Beasley, Judge.

This is a direct appeal from an award of expenses of litigation pursuant to OCGA § 9-15-14. Appeals from awards of attorney fees or expenses of litigation under this code section require application for appellate review. OCGA § 5-6-35 (a) (10). Inasmuch as appellant has failed to make application to this court and to have the same granted, we are without jurisdiction to entertain the appeal and it must be dismissed. Walker v. City of Macon, 166 Ga. App. 228 (303 SE2d 776) (1983).

Appeal dismissed.

Birdsong, C. J., and Banke, P. J., concur.


text:
    75916.
    BORDA v. THE STATE.
    (369 SE2d 327)
   Beasley, Judge.

Borda appeals his conviction of trafficking in cocaine, OCGA § 16-13-31 (a) (1), following a bench trial. His sole enumeration is the denial of his motion to suppress.

The motion was based on the Fourth Amendment and the corresponding Georgia provision, Ga. Const., Art. I, Sec. I, Par. XIII, and contended that the search was conducted without probable cause, without consent, and without a warrant.

Viewed in the light favorable to the state, the evidence showed that Borda arrived on a flight from Miami, one of the source cities for drug trafficking. As he left the plane, he ignored the airline agent who was aiding passengers with connecting flights and proceeded to view the monitors in the concourse. He then discarded a portion of his ticket in the trash, from which GBI agent Jordan retrieved it. Borda kept looking over his shoulder and appeared to be watching to see if anyone was observing him.

Agent Jordan and Officer Simmons had the airline obtain the reservation record on the ticket, which indicated that it was a one-way ticket purchased with cash, another characteristic of the drug courier profile. Scott v. State, 253 Ga. 147, fn. 1 (317 SE2d 830) (1984). They then walked up to Borda, who was leaving a restaurant on the concourse, and began to talk to him as they walked along. Without being asked to stop and without being restrained in any way, Borda stopped and began to talk to the officers. Upon request, he showed them his ticket and his driver’s license. Both bore his true name. At this point, the officers identified themselves to Borda and stated they were narcotics officers trying to interdict drugs at the airport. Borda became very nervous, his hands began to shake and he began to perspire.

The officers asked if he would consent to a search and he agreed. They gave him the option of going to a more private place, which they did. There, Agent Jordan read him his rights regarding the search, including his right to refuse the search. Borda orally consented and handed Officer Simmons his tote bag, which contained no contraband. Agent Jordan asked if he could pat him down. Borda raised up his arms and started turning so that his right side was away from the agent. Upon reaching up on Borda’s right side, Agent Jordan felt a lump in Borda’s coat pocket. When he asked what it was, Borda reached for the lump, Agent Jordan said he would remove it, and he did. The clear plastic bag contained others holding white powder — 99 grams of 90 percent pure cocaine.

“Where the state seeks to justify a warrantless search on grounds of consent, it ‘has the burden of proving that the consent was, in fact, freely and voluntarily given.’ [cit.] A valid consent eliminates the need for either probable cause or a search warrant, [cit.] The voluntariness of a consent to search is determined by looking to the ‘totality of the circumstances.’ [cit.] . . . .” Dean v. State, 250 Ga. 77, 79 (2 a) (295 SE2d 306) (1982).

The trial court’s ruling on disputed facts and credibility must be accepted unless clearly erroneous. Muff v. State, 254 Ga. 45, 48 (326 SE2d 454) (1985); Lockwood v. State, 184 Ga. App. 262, 263 (1) (361 SE2d 195) (1987). The trial court found that Borda’s consent was freely and voluntarily given. Borda does not dispute that he gave his consent to search his bag, but contends he did not specifically further consent to the patdown. There is sufficient evidence in the record to support a separate non-verbal consent to the patdown. Moreover, applicable is the maxim that “[o]nce consent is legally obtained, it continues until it is either revoked or withdrawn. [Cit.]” Mixon v. State, 184 Ga. App. 623, 624 (362 SE2d 111) (1987); Miller v. State, 183 Ga. App. 55, 56 (357 SE2d 876) (1987). We hold that no violation of either of the invoked constitutional provisions has been shown. Appellant raised two constitutional grounds but cited no authority construing either of them in a manner supportive of his contention.

Decided May 3, 1988.

Martin L. Cowen III, Linda S. Cowen, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.


text:
    75973.
    DOZIER v. THE STATE.
    (369 SE2d 328)
   Beasley, Judge.

Defendant appeals his conviction of driving under the influence of alcohol, OCGA § 40-6-391.

1. Defendant contends that the results of an intoximeter test were inadmissible because he was denied his right under OCGA § 40-6-392 (a) (3) to have an independent urine test. He enumerates as error the denial of his motion in limine, and his motions to dismiss made at the close of the State’s evidence and of all the evidence.

Puett v. State, 147 Ga. App. 300 (248 SE2d 560) (1978), in which the officers failed to take accused to a hospital where he had arranged for a test, held: “The law gives one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing. But of what value is that right if the accused is in custody of law enforcement officials who either refuse or fail to allow him to exercise the right? We hold that under such circumstances there is coupled with the right granted to the accused a corresponding duty on the part of law enforcement officers not to deny him that right.”

Subsequent decisions point out that where defendant is afforded the opportunity for an independent test, the fact that he is unable to obtain the method of his own choosing does not of itself require suppression of the State’s test results. State v. Laycock, 151 Ga. App. 145, 147 (259 SE2d 150) (1979); Grizzle v. State, 153 Ga. App. 364 (1) (265 SE2d 324) (1980). OCGA § 40-6-392 (a) (3) provides the predicate: “[T]he justifiable failure or inability to obtain an additional test shall not preclude” the evidence of the State’s test.

The requirements imposed upon defendant are stated in Harper v. State, 164 Ga. App. 230, 231 (1) (296 SE2d 782) (1982): “Before the duty of the police arises to transport a defendant to the location of the test, he must first show that he had made arrangements with a qualified person of his own choosing, that the test would be made if he came to the hospital, that he so informed the personnel at the jail where he was under arrest, and that those holding him then ‘either refused or in any event failed to take him to the hospital for that purpose.’ ” Accord Lovell v. State, 178 Ga. App. 366, 369 (2) (343 SE2d 414) (1986).

According to defendant, he was arrested for driving under the influence of alcohol, informed of his rights under the law and administered the breath test by an officer. He requested a urine test and was taken to the Tift General Hospital. There one of the officers stated he “wants a blood/urine test,” but defendant denied that and testified he requested a urine test. He paid a $26 fee and was taken to the back of the emergency area where he was informed that the hospital did not give urine tests. This was confirmed by a doctor present. Defendant asked permission to call a Dr. Smith or a Dr. Chiang. He also requested that he be taken to the Colquitt County Hospital “or anywhere where they’d give a urine test.” He was not taken for the reason, he asserts, that one of the officers had a grudge against him.

The officers who arrested defendant and transported him to the hospital gave a different version. Defendant requested a separate test, and “urine/blood” was written on the form one of the officers filled out. Defendant was taken to the hospital, paid a fee and completed the paperwork to have a blood test done, but before it could be accomplished he stated he did not want a blood test but wanted a urine test. Defendant was informed that the hospital did not perform urine tests for alcohol. Defendant protested and one of the officers told him he could still take the blood test. Defendant refused and demanded a urine test. He became “belligerent and fussing” so the officers handcuffed him and took him back to the police station. Both officers denied that defendant asked them to call either of the two named doctors or that he sought to be taken to Colquitt County Hospital. One officer testified that he would not have taken defendant to Colquitt Hospital because it was outside his jurisdiction and too far away, about thirty miles. It was routine for the Tifton Police to take an accused to Tift Hospital.

Defendant contends that the State has the burden of showing the statutory requirements were met, citing Munda v. State, 172 Ga. App. 857 (1) (324 SE2d 799) (1984). Here the evidence showed that defendant was informed of his right to an independent test as required by the code section and that he requested another test. Defendant testified that when the Tift Hospital did not perform the test he wanted, he sought permission to try elsewhere. The officers accompanying him denied this. Defendant admitted that he assumed the doctors and Colquitt Hospital had the ability to perform a urinalysis for alcohol, but he did not know. Because there was conflict, the evidence did not establish as a matter of law that defendant met the requirements necessary to show that he was denied the opportunity to obtain such test. The case primarily relied upon by defendant, State v. Hughes, 181 Ga. App. 464, 466 (352 SE2d 643) (1987), affirmed suppression, which was occasioned by a finding for defendant by the trial court based upon conflicting evidence. See also State v. Mallory, 180 Ga. App. 815, 816 (350 SE2d 823) (1986).

“Questions of credibility arising out of conflict in testimony regarding the circumstances of pursuing the additional testing . . . [are] for resolution by the court.” Lovell v. State, supra at 369. See State v. Dull, 176 Ga. App. 152, 153 (335 SE2d 605) (1985). In this case the trial court found for the State and there was evidence to sustain the finding that defendant made no arrangements with a qualified person to obtain a separate test. Thus, the results of the State’s test were properly considered.

Whether or not the trial court correctly found that defendant “elected” a particular test is not reached because there was ample evidence to sustain the finding that defendant was not denied the opportunity to obtain a separate test.

2. Defendant contends that the State failed to meet its burden of proving that the initial test for alcohol conducted at the option of the police was performed according to methods approved by the GBI by an individual possessing a valid permit issued by the GBI. Officer Zeigler who conducted defendant’s test stated that certificates were issued for one year and the certificate introduced into evidence showed it was issued on January 1, 1986. Since defendant was tested on January 18, 1987, he argues Zeigler was not certified when he gave the test. However, the certificate also clearly states “This permit expires Dec. 31, 1987.”

Furthermore, Zeigler testified that he was certified at the time he administered the test. That testimony was admissible and sufficient to establish the fact at issue. See Clarke v. State, 170 Ga. App. 852 (319 SE2d 16) (1984); Drayton v. State, 175 Ga. App. 803, 806 (5) (334 SE2d 720) (1985).

As to whether proper methods were employed, defendant made no such objection against the introduction of the evidence. Besides, the operator stated that he used procedures based upon instruction received from the Georgia Department of Public Safety for that machine. Defendant has failed to establish a legal mandate for suppressing the result of the breath test.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.

Decided May 3, 1988.

G. G. Joseph Kunes, Jr., for appellant.

David R. Hege, Solicitor, for appellee.


text:
    75981.
    McFARLIN v. TAYLOR.
    (369 SE2d 330)
   Beasley, Judge.

Taylor filed suit against McFarlin after a collision between their vehicles. Plaintiff alleged that she incurred certain medical expenses including treatment from dentist Woodall. Pursuant to OCGA § 9-11-34 (c), defendant served Woodall with a request for production of documents pertaining to Taylor’s treatment. Woodall did not file an objection within ten days of the request as required by OCGA § 9-11-34 (c) (2) but Woodall’s attorney sent a letter to McFarlin’s counsel which contended that Woodall was not insulated from liability for production of the records as a physician under OCGA § 24-9-40, requested that counsel have Taylor execute an authorization to release her medical information, and stated that with such authorization, Woodall would comply with the request and sign the accompanying affidavit. The record is silent as to whether or not such an authorization was ever requested or obtained. Defendant McFarlin moved to compel discovery; the trial court overruled the motion on the basis that Woodall was “a dentist under Chapter 11 of Title 43 of the O. C. G. A. and not subject to discovery sanctions provided under OCGA § 24-9-40.” An interlocutory appeal was granted to review this discovery ruling.

Appellant urges that Woodall is immune from liability under OCGA § 24-9-40. The clear language of the statute limits itself to physicians licensed under Chapter 34 of Title 43, which would not include dentist Woodall. However, OCGA § 24-9-44 provides that “[a]ny person, corporation, authority, or other legal entity acting in good faith shall be immune from liability for the transmission, receipt, or use of medical matter disclosed pursuant to laws requiring disclosure or pursuant to limited consent to disclosure.” If Woodall had complied in good faith with the production request, or if he had been compelled to comply by the trial court, he would have been shielded from liability for the disclosure under this statute. See Jones v. Thornton, 172 Ga. App. 412 (323 SE2d 217) (1984).

Aside from the immunity issue, Woodall failed to comply promptly with the production request because he did not file any objection to the discovery within ten days of receipt of the request. OCGA § 9-11-34 (c) (2). Even though the trial court has broad discre-

Decided May 3, 1988.

William D. Strickland, David S. Thomson, for appellant.

David A. Sellers, for appellee.

tion in dealing with discovery matters, its bounds were exceeded in overruling defendant’s motion to compel. See Tandy Corp. v. McCrimmon, 183 Ga. App. 744, 745 (1) (360 SE2d 70) (1987); Browning v. Powell, 165 Ga. App. 315, 316 (1) (301 SE2d 52) (1983).

Judgment reversed.

Birdsong, C. J., and Banke, P. J., concur.


author: Birdsong, Chief Judge.

text:
    76251.
    RHODES v. PERIMETER PROPERTIES, INC. et al.
    (369 SE2d 332)
   Birdsong, Chief Judge.

Rhodes, the defendant below, having been sued for breach of a real estate sales contract, brought in his realtors Perimeter Properties, Inc. and Realty Marketing Group, Inc. as third party defendants. He did not own the property when he contracted to sell it to the plaintiff, but was relying on the contingency that he could purchase it from another. He alleged the realtors are responsible for his liability, if any, to the plaintiff because they fraudulently failed to include in the sales contract, which they prepared, a clause excusing Rhodes from any obligation as seller unless he was first able to purchase the property.

The trial court dismissed the appellees as third parties, based on the appellant Rhodes’ own failure to read the contract before he signed it. On appeal, Rhodes contends his action against the third party realtors is sustained by the fact that the appellees, having failed to put the clause in the contract, had a confidential and fiduciary duty to appellant to tell him it was not there. He cites, e.g., Ringer v. Lockhart, 240 Ga. 82 (239 SE2d 349) and Wilhite v. Mays, 239 Ga. 31 (235 SE2d 532) for authority that where a confidential relationship exists, concealment when there is a duty to disclose is actionable as fraud. See also OCGA § 23-2-53, as to the suppression of a material fact by one under an obligation to communicate; and § 23-2-52. The appellant raises no issue of fact except that a jury might find under the conflicting evidence that the appellees had a confidential and fiduciary duty to “prepare a sales contract based on their representations to him and their knowledge of the circumstances,” and that they fraudulently concealed the fact that they did not put the clause in the contract. Held:

The trial court did not err in granting summary judgment to the third party appellees.

Assuming there existed between the appellant seller, Rhodes, and the appellee realtors such a confidential or fiduciary relationship as entitled Rhodes to rely absolutely upon the accuracy of the contract drawn up for him and the buyer by the appellee realtors, or entitled him to rely upon its compliance with his directions (see OCGA § 23-2-53); and generally Cochran v. Murrah, 235 Ga. 304, 305 (219 SE2d 421); Morrison v. Roberts, 195 Ga. 45 (23 SE2d 164)), nevertheless, there was no evidence of suppression, concealment or misrepresentation by the third parties in this case. This is not a case where the fiduciary is accused of fraud by intentionally concealing a fact for the purpose of obtaining an advantage or benefit. See Georgia Real Estate Comm. v. Brown, 152 Ga. App. 323, 324-325 (262 SE2d 596). In a case involving a fiduciary duty to disclose, an allegation of constructive fraud, which may be consistent with innocence and arises in legal fiction only by virtue of the relationship and the consequent high duty, should still require at least some degree of misrepresentation or bad faith. See Gaultney v. Windham, 99 Ga. App. 800, 805 (109 SE2d 914). The rule in this state is that he who can read must read; failure to read a document on the basis solely of reliance upon the fiduciary or other special duty of the other party, may be excused as between the parties themselves (see Van Den Berg v. Northside Realty Assoc., 172 Ga. App. 591 (323 SE2d 839)); but where there is no evidence of suppression, misrepresentation or concealment or bad faith so as to impute moral guilt, the mere omission of a matter from a document coupled with the failure to reveal the omission, can hardly be even constructive fraud unless it is “contrary to good conscience.” OCGA § 23-2-51 (b).

In this case the appellant sought to sell real estate he did not yet own; therefore, clearly the entire enterprise hung upon the fact that he must not be bound or liable on contract to sell the property unless he was able to first buy it. The proposition was all-risk unless he was able to buy it; but his great confidence in undertaking the proposition subject to that risk was attended by the necessity of keener vigilance. In short, this risk of selling property he did not own and the necessity for this contingency clause should have been foremost on his mind. The contract consisted of only one and one-half printed legal pages; it is undisputed that he had full opportunity to read the contract and in fact did read at least parts of the contract, made several changes in its terms and signed his name on each page of the brief contract.

Considering the fact that the entire obligation to which he signed his name was to sell property he did not own, and considering the fact that this contract was a short and simple one, and he admits he had the opportunity to read the whole thing, and he did read parts of it and studiously affixed such changes as he desired, and there was no concealment, suppression or misrepresentation by the third party, we think reasonable minds cannot differ that he was not misled as to the contents of the document, nor was any failing of it concealed, suppressed or misrepresented “contrary to good conscience,” nor did he rely upon the appellees as having put the clause somewhere in the document. We think in the circumstances of this case reasonable minds could not differ that he was bound to keener vigilance on his own behalf and was not entitled to the extraordinary privilege of relying on the fiduciary relationship to relieve him of his ordinary duty to read this document. There being no genuine issue of material fact as to this, the trial court did not err in granting summary judgment to the third party appellees.

Decided May 3, 1988.

Everett D. Caldwell, for appellant.

Anthony O. L. Powell, Lawrence S. Burnat, W. Howard Fowler, for appellees.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    76260.
    WOODS v. GENERAL ELECTRIC CREDIT AUTO LEASE, INC.
    (369 SE2d 334)
   Birdsong, Chief Judge.

Appellant, Annie Woods, appeals the order of the State Court of DeKalb County granting summary judgment to appellee-plaintiff and including therein an award of attorney fees in the amount of $942.78.

Appellant and her husband, Willie Ray Woods, co-signed a document, as lessees, entitled “New Vehicle Lease Agreement (Open-End).” Willie Ray Woods appears to have subsequently enjoyed the use and benefit of the automobile. The appellant and Willie Ray Woods divorced, and both signed a property settlement agreement wherein “[t]he Husband agrees to indemnify and hold harmless the Wife from any and all claims . . . against her arising as a result of his lease, use and operation of a 1983 Mercedes Sedan 240 automobile, such lease being with General Electric Auto Lease, of the State of Ohio.” (Emphasis supplied.) Willie Ray Woods thereafter continued his complete control over and use of the vehicle. When he failed to make monthly payments according to the terms of the document, appellee terminated the lease, recovered and sold the vehicle, and ultimately brought suit against both Woods demanding $9,177.76, plus attorney fees and court costs. The trial judge granted appellee’s motion for summary judgment against appellant and awarded appellee $9,177.76 principal, $404.32 interest to date, court costs and $942.78 attorney fees. The trial judge also granted appellant/cross-claimant’s motion for summary judgment against Willie Ray Woods. Held:

1. Appellant’s first and second enumerations of error are that the trial court erred in granting appellee’s motion for summary judgment and failing to find that a genuine issue of material fact existed regarding: (a) the matter of notice, and (b) the matter of commercial reasonableness of the sale of the automobile, respectively. Specifically, appellant assumes that appellee was a “secured party” and holder of a “security interest” in the automobile, and that therefore the notice and commercial reasonableness requirements of OCGA § 11-9-504 apply to this case.

The appellee asserts that OCGA § 11-9-504 is not applicable, as the vehicle was acquired by a transaction that constituted a mere lease and not by a transaction giving rise to a “security interest” within the meaning of OCGA § 11-9-102.

OCGA § 11-9-102 provides that the Uniform Commercial Code — Secured Transactions (Act. 9) applies “[t]o any transaction (regardless of its form) which is intended to create a security interest in personal property,” and further states that “[t]his article applies to security interests created by . . . lease . . . intended as security.” OCGA § 11-1-201 (37) pertinently defines the term “security interest” as “an interest in personal property . . . which secures payment or performance of an obligation. . . . Unless a lease ... is intended as security, reservation of title thereunder is not a ‘security interest’. . . . Whether a lease is intended as security is to be determined by the facts of each case; however, (a) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (b) an agreement that upon compliance with the terms of the lease, the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.” Thus, the provisions of OCGA § 11-9-504 (3) are applicable only if the New Vehicle Lease Agreement is not a true lease but is in fact a disguised security transaction. Mejia v. C & S Bank, 175 Ga. App. 80, 81 (332 SE2d 170).

Examining the New Vehicle Lease Agreement on its four corners and applying the rules of construction found in Mejia, supra, and Ford Motor Credit Co. v. Dowdy, 159 Ga. App. 666 (284 SE2d 679), we find that the Agreement is in fact a true lease and not a disguised security transaction.

Although the document does contain certain provisions more likely to be found in a security transaction, for example, that the appellant and her husband would be responsible for all necessary vehicle repairs, vehicle maintenance, taxes and vehicle insurance, examination of the document reveals that these factors are not controlling. Mejia, supra at 82.

The Agreement specifically is labeled a lease and consistently refers to appellant and her husband as lessees. It includes the original lessor’s assignment to the appellee of “all right, title and interest in and to the leased vehicle and to this lease. . . .” Moreover, it expressly provides “that this ... is a true lease. . . .” While these factors are not dispositive in construing the nature of the Agreement, see generally Mejia, supra at 81 and Ford Motor Credit Co., supra at 667, they are entitled to reasonable weight, as they are an indicator of the parties’ contractual intent and the purpose of the Agreement.

Other factors indicative of a true lease, and which are present in this case include (a) that the original lessor was apparently in the automobile leasing business, Mejia, supra at 82; (b) that the lessor did not require a financing statement, Mejia, supra at 82; and (c) that the Agreement expressly provided that the lessees “have absolutely no equity or other ownership rights in the vehicle,” unless they exercise their option to purchase the vehicle, see generally Ford Motor Credit Co., supra at 667, and cases cited therein. Additionally, the leasing of automobiles by individuals, as well as by business entities, is not an uncommon practice today.

We note that this Agreement provided for a refundable security deposit of $450, and required 60 monthly lease payments of $416. While the existence of both an “initial down payment” and “an additional payment of [a] security deposit” would be a factor also tending to establish that this transaction was a conditional sale, Ford Motor Credit Co., supra at 667, the mere existence of a reasonable security deposit would be consistent with many lease transactions. This Agreement on its face required no “initial down payment,” and the security deposit, which was refundable, was roughly equivalent to the amount required for a monthly leasing payment. Such an amount is not unreasonable and entirely consistent with a lease transaction.

Although the Agreement in this case does provide appellant and her husband with an option to buy, the inclusion of such a provision does not per se make the Agreement a lease intended for security or give rise to a conditional sales agreement. See OCGA § 11-1-201 (37); Mejia, supra at 81; Ford Motor Credit Co., supra at 666. When an alleged lease agreement contains an option to purchase the leased vehicle, the “best test” for determining the agreement’s purpose and the parties’ contractual intent “ ‘ “is a comparison of the option price with the market value of the equipment at the time the option is to be exercised.” ’ ” Mejia, supra at 82; Ford Motor Credit Co., supra at 667. This comparison will reveal whether the lessees are acquiring the property at or near its actual value or for a substantially reduced or nominal price. See Mejia, supra at 82; Ford Motor Credit Co., supra at 667. If the lessees can acquire the property under the purchase option for little or no additional consideration in relation to its true value, the lease would be one intended for security. OCGA § 11-1-201 (37).

The Agreement in this case provides the following purchase option formula: “[t]he purchase price shall be greater of, (1) the Balance Subject to Lease Charge [$24,427.78 — the stated initial value of the vehicle], less all depreciation amounts applied before termination [the average monthly depreciation is set at $195.96 for a scheduled lease term depreciation of $11,757.78 at the end of the 60-month lease period], or (2) 90% of the vehicle’s then Automotive Market Report ‘clean value’ (with accessories).” (Emphasis supplied.) This formula on its face shows that the lessees would not be paying “no consideration,” “nominal consideration” or even a purchase price “substantially lower” than the vehicle’s actual value. In fact, it appears from this formula that the lessees would have been required to pay at least a reasonable price if not a price equal to or greater than the actual value of the automobile at option time in order to exercise their purchase option.

Based on the foregoing, we find that the Agreement was intended to be and was in fact a true lease and not a disguised security transaction. Accordingly, we find appellant’s first and second enumerated errors to be without merit, as contrary to appellant’s assertions, no genuine issue of material facts exists for adjudication. See Hyman v. Horwitz, 148 Ga. App. 647, 649 (252 SE2d 74).

2. Appellant’s third enumerated error is that the trial court erred in awarding appellee attorney fees in any amount without conducting a hearing or by receiving evidence of fees from appellee ex parte. Appellee duly notified appellant of its intent to collect attorney fees and in its complaint demanded “judgment against [appellant and her husband], jointly and severally, in the principal sum of $9,177.76, plus attorney’s fees. . . .” See generally General Elec. &c. Corp. v. Brooks, 242 Ga. 109 (249 SE2d 596). The court entered judgment for appellee in the amount claimed, plus $404.32 interest, $942.78 attorney fees and court costs. The New Vehicle Lease Agreement, which appellant co-signed as a lessee, contained a default provision which pertinently provided: “I also agree to be liable for all collection and legal costs, including reasonable attorney’s fees ... to the extent permitted by law.”

OCGA § 13-1-11 (a) (2) provides a statutory methodology for calculating attorney fees when the “evidence of indebtedness provides for the payment of reasonable attorney’s fees without specifying any specific percent. . . .” Appellant has not contested the applicability of this statute under the facts of this case; and we have held that “[w]here a contract provides for reasonable attorney’s fees the amount of such fees is calculated under the provisions of the Act of 1953 (Ga. L. 1953, Jan.-Feb. Sess., pp. 545, 546; Code Ann. § 20-506)” (emphasis deleted); Carter v. Whatley, 97 Ga. App. 10, 13 (101 SE2d 899), questioned on other grounds, White v. Turbidy, 227 Ga. 825 (5) (183 SE2d 363). As OCGA § 13-1-11 (a) (2) is identical in all substantial respects to the language of Code Ann. § 20-506, we find that the attorney fees awarded in the present case were subject to calculation based on the provisions of OCGA § 13-1-11 (a) (2). The trial court’s award of $942.78 in attorney fees represents substantial compliance, within the meaning of OCGA § 1-3-1 (c), with this statutory formula. As the amount of attorney fees awarded complied with the provisions of OCGA § 13-1-11 (a) (2), the only other issues to be resolved are whether attorney fees can be awarded when plaintiff receives a grant of his motion for summary judgment, and whether a hearing is required in the case at bar as a prerequisite to such grant. We answer the first question in the affirmative and the second in the negative.

Decided May 3, 1988.

Gail T. Joyner, for appellant.

Christine C. Daniel, for appellee.

A plaintiff who is entitled to a summary judgment on a document establishing “evidence of indebtedness,” within the meaning of OCGA § 13-1-11 (a) “is also entitled to a judgment for attorney fees thereon.” See Mercantile Nat. Bank v. Berger, 129 Ga. App. 707 (5) (200 SE2d 921).

As the amount of attorney fees to be awarded in cases such as this is subject to computation by using either without variance, or by substantially complying with, the unambiguous statutory formula of OCGA § 13-1-11 (a) (2), a hearing is not required merely to effect this computation.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    76293.
    CIPROTTI v. THE STATE.
    (369 SE2d 337)
   Beasley, Judge.

On December 3, 1986, Ciprotti was indicted on two counts of forgery in the first degree, OCGA § 16-9-1. Represented by counsel, she waived formal arraignment on January 26, 1987. On February 3, her retained attorney filed several motions including a demand for trial under OCGA § 17-7-170. On the 24th, counsel notified Ciprotti of his intention to withdraw from the case. Ciprotti applied for appointed counsel on the 25th. An attorney accepted the appointment of the case on March 9 and met with Ciprotti on that date. The next day the trial court entered an order allowing retained counsel to withdraw. On the 18th, Ciprotti’s case was called for trial. At that time, appointed counsel asked for a two-week postponement in order to receive bank records which had been subpoenaed. Counsel acknowledged that the request “might in law result in a dismissal of our demand for trial,” and that defendant had asked that dismissal of the demand not be by consent but rather that the court order it done if such dismissal was, in the court’s determination, the legal result of the request for continuance; defendant did not agree that the request constituted a waiver of her demand.

The State moved to dismiss the speedy trial demand, and the court granted the motion after noting that there were jurors ready to be called in and that the court was ready to accommodate the defendant. Following dismissal of the demand, the court continued the case to its next jury calendar and also to a non-jury calendar because the court was aware that discussions were under way to nolle prosequi the case conditioned upon a binding restitution hearing. An order dismissing the demand was filed a few days later, on March 24.

On April 23, the case was continued by court order until May 11. Ciprotti filed a notice of change in counsel on April 29, stating that she waived her right to appointed counsel. On May 11, she filed a Motion for Autrefois Acquit on the basis that she had been acquitted as a matter of law as provided by OCGA § 17-7-170 (b) because she had not been tried when her demand for speedy trial was made or at the next succeeding regular court term.

After a hearing on May 12 on^ Ciprotti’s request to discharge appointed counsel, the court discharged counsel after finding that Ciprotti’s waiver of counsel was freely, understanding^, knowingly, and voluntarily made. On May 13, the State requested a continuance in order to obtain handwriting exemplars from the complaining witness and from Ciprotti. The court granted a continuance until July 13 over defendant’s objection to the continuance based upon her assertion that she had been acquitted by operation of law.

On July 13, the State tendered and the court accepted a nolle prosequi based on insufficient evidence. Ciprotti stated that she was not consenting to the nolle prosequi because she believed that she had already been acquitted of the charges.

On September 4, defendant submitted to the court a Rule Nisi for a hearing on her Motion for Autrefois Acquit, but the court did not sign it. A month later Ciprotti sent a letter requesting the court to reconsider denial of the Rule Nisi. On October 13, the court’s assistant sent defendant a letter stating that the court had instructed that defendant’s correspondence and attachments of October 4 be returned and that the court would take no action at that time because a nolle prosequi had been entered. The letter was filed with the clerk of court on October 21.

Ciprotti filed a notice of appeal pro se on November 20 from the March 24th dismissal of the speedy trial demand, from the July 13th nolle prosequi, and from the October 21 “decision of the trial judge refusing to hear, grant, or otherwise finally dispose of the defendant’s Motion for Autrefois Acquit.”

1. The State contends that this Court is without jurisdiction to consider the merits of the appeal because defendant failed to timely appeal the dismissal of the demand for trial and the nolle prosequi, and “failed to invoke a ruling” on the Motion for Autrefois Acquit.

It is true that defendant did not attempt to immediately appeal directly from the dismissal of the demand or from the nolle prosequi which was objected to on the basis of an alleged acquittal under OCGA § 17-7-170 (b). See Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985); see also Cook v. State, 183 Ga. App. 720 (1) (359 SE2d 716) (1987), and Ould v. State, 186 Ga. App. 55 (1) (366 SE2d 55) (1988), a physical precedent. But the record shows that defendant was waiting for the court’s decision on her motion for autrefois acquit since a decision on the merits of that motion would have decided whether her objections to the dismissal of the OCGA § 17-7-170 demand and to the entry of the nolle prosequi were valid. In fact, prior to the entry of the nolle prosequi, the court assured defendant that it would indeed rule on her motion for autrefois acquit at the appropriate time.

Contrary to the State’s implication that defendant simply failed to obtain a ruling on the motion for autrefois acquit, she made repeated attempts, short of seeking a writ of mandamus, OCGA § 9-6-20, to secure a hearing on the merits of the motion, and timely filed her appeal from what she considered to be, in effect, a denial of her motion. Because of the unique circumstances in this case, we deem the court’s refusal to rule on the merits of defendant’s motion for autrefois acquit on the basis of the intervening nolle prosequi as a final and appealable determination by the court that defendant’s motion was rendered moot by the nolle prosequi as a matter of law.

2. In her sixth enumeration of error, Ciprotti contends that the court erred in not granting her a hearing on the motion for autrefois acquit. We agree. The entry of an order of nolle prosequi in a case does not prevent a defendant as a matter of law from claiming the benefits of OCGA § 17-7-170. Coker v. State, 181 Ga. App. 559 (353 SE2d 56) (1987). The trial court therefore should have entertained the merits of defendant’s motion for autrefois acquit based upon OCGA § 17-7-170 (b) and decided the motion as required by OCGA § 15-6-21 (b).

3. A determination of the contentions in enumerations of error one through five and seven flow from a determination of the merits of defendant’s motion. Therefore, we do not address them at this time.

Decided May 4, 1988.

Laura M. Ciprotti, pro se.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Thomas A. Cole, Assistant District Attorneys, for appellee.

4. In the seventh and last enumeration of error, Ciprotti alleges ineffective assistance of counsel in numerous respects; she admits that the issue was not raised and determined below but argues nonetheless that there is sufficient evidence in the record for this Court “to admit that there was at the least a question of ineffective counsel.”

Inasmuch as defendant made no attempt to raise the issue before the trial court so that the challenge could be made at the earliest practicable moment, i.e., during the hearing on her discharge of appointed counsel, we regard the issue as waived. Smith v. State, 186 Ga. App. 303 (367 SE2d 573) (1988).

Judgment reversed and case remanded.

Birdsong, C. J., and Banke, P. J., concur.


text:
    76330.
    KELLEHER v. STATE OF GEORGIA.
    (369 SE2d 341)
   Banke, Presiding Judge.

This litigation began as an in rem forfeiture proceeding brought by the State of Georgia to condemn certain property belonging to the appellant, pursuant to the provisions of the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act, OCGA § 16-14-7. The appellant responded by filing a multi-million dollar counterclaim alleging that the state had seized his belongings without any valid legal basis, had maliciously pursued an unfounded criminal prosecution against him in connection with the seizure, and had defamed him by distributing “false unsubstantiated affidavits” accusing him of criminal activity. The RICO action was ultimately dismissed based on the state’s failure to establish “reasonable cause” for a belief that the items in question had been acquired or maintained through a pattern of racketeering activity. The state subsequently filed a release of its RICO lien notice and moved for dismissal of the appellant’s counterclaim on the ground that it was barred by the doctrine of sovereign immunity. The trial court granted that motion, thereby precipitating this appeal. Held:

1. The appellant first contends that the dismissal was in error due to the state’s failure to negate the possibility that the defense of sovereign immunity had been waived pursuant to Art. I, Sec. II, Par. IX (a) of the Georgia Const, of 1983, by the procurement of liability insurance protection covering his claims. The appellant never made any such allegation in the court below, with the result that the state was never called upon to deny the existence of such insurance coverage and the trial court was never called upon to rule on the issue. Consequently, this contention presents nothing for review on appeal. Accord Bryant v. Mayor &c. of Americus, 252 Ga. 76, 78 (4) (311 SE2d 174) (1984).

Decided May 4, 1988.

Billy L. Spruell, Howard J. Manchel, for appellant.

C. Andrew Fuller, District Attorney, Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, for appellee.

We reject the appellant’s unsupported assertion that “[t]he defense of sovereign immunity is an affirmative defense” with respect to which the state has the burden of proof. The defenses required to be affirmatively pled in civil actions are set forth at OCGA § 9-11-8 (c), and sovereign immunity is not among them. Indeed, the general rule is that “[i]n the absence of express statutory [or constitutional] authorization, neither counsel for the state nor any of its agencies may, by affirmative action or by failure to plead, waive the defense of governmental immunity.” 81A CJS 952-953, States, § 299. See also 72 AmJur2d 510, States, § 119.

2. Neither has the appellant asserted a cognizable claim under the theory that “private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.” Ga. Const, of 1983, Art. I, Sec. Ill, Par. I (a). See also United States Constitution, Amendments 5 and 14. There has been no allegation that the state applied any of the property to public use during the period it was in the state’s possession. Thus, even assuming arguendo that the seizure resulted in a violation of the appellant’s state and/or federal constitutional rights, no basis has been asserted upon which the state itself, as opposed to its officers, could be held liable for monetary damages on the basis of it. Cf. Quern v. Jordan, 440 U. S. 332, 343 (99 SC 1139, 59 LE2d 358) (1979).

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


author: Sognier, Judge. Deen, Presiding Judge,

text:
    76382.
    In the Interest of D. B. et al.
    (369 SE2d 811)
    Decided May 4, 1988.

      Mark J. Nathan, for appellant.

      Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, Carl S. Pedigo, Jr., Special Assistant Attorney General, for appellee.
   Sognier, Judge.

Appellant, the mother of D. B. and D. B., appeals from the order of the Juvenile Court of Chatham County terminating her parental rights in the children. The record affirmatively reveals that no attorney was appointed, pursuant to OCGA § 15-11-85 (a), to represent the children as . counsel in the proceeding terminating parental rights. Under the authority of In re L. L. B., 256 Ga. 768 (353 SE2d 507) (1987), we must therefore vacate the judgment of the juvenile court with the direction that on remand the juvenile court shall retry this case under OCGA § 15-11-80 et seq., considering OCGA § 15-11-85 (a) in particular. We note that appellant’s claim that she is an indigent, entitled to an attorney under OCGA § 15-11-85 (b), will necessarily have to be re-evaluated upon retrial of the proceeding terminating her parental rights in the children.

Judgment vacated and case remanded with direction.

Deen, P. J., and Carley, J., concur. Deen, P. J., also concurs specially.

Deen, Presiding Judge,

concurring specially.

While concurring fully with the majority opinion, it should be noted that promoting the interest of the family was placed in the Preamble of Georgia’s latest Constitution of 1983 in order to once again emphasize the high priority of value and importance to matters relating to family concerns.