text:
    75505.
    HATTAWAY v. THE STATE.
    (365 SE2d 480)
   McMurray, Presiding Judge.

Via indictment, defendant was accused of violating the Georgia Controlled Substances Act by selling a quantity of marijuana to “GBI Agent M. A. Dull, for a consideration of $20.00.” Defendant was convicted by a jury and subsequently sentenced to serve two years. Following the denial of his motion for new trial, defendant appealed, contending the trial court erred in refusing to submit a defense of entrapment to the jury. Held:

“In Georgia, the entrapment defense consists of three distinct elements: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement or deceit; and (3) the defendant must not be predisposed to commit the crime. OCGA § 16-3-25 (enacted in 1968). See Schaffer v. State Board of Veterinary Medicine, 143 Ga. App. 68, 71 (237 SE2d 510) (1977); Kurtz, Criminal Offenses in Georgia, p. 119 (1980). Under the majority view (which is followed in Georgia), the predisposition of the defendant toward crime is the key element of the defense. Johnson v. State, 147 Ga. App. 92, 93 (248 SE2d 168) (1978) (citing Sherman v. United States, 356 U. S. 369 (78 SC 819, 2 LE2d 848) (1958), and Sorrells v. United States, 287 U. S. 435 (53 SC 210, 77 LE 413) (1932)).” Keaton v. State, 253 Ga. 70, 72 (316 SE2d 452). “ ‘Because the concept of entrapment involves the predisposition of the accused, the question, like all fact questions, is generally one for the jury to decide.’ [Cit.]” Tolbert v. State, 138 Ga. App. 724, 726 (227 SE2d 416).

Defendant proffered evidence that he parted with the marijuana only because he was persuaded unduly to do so by one Harry Peaden. (Defendant knew Peaden in high school. Unbeknownst to defendant, Peaden was a Georgia Bureau of Investigation (GBI) informant.) In this regard, defendant testified as follows:

“I was pumping gas at the Nite Owl in my car and Harry walked up to me. And he asked me if I had any marijuana and I told him no. He asked me if I had any to sell and I told him no. And he wanted — he said, well you got a little bit, I know you got some. He said, come on me and my roommate’s down from where we’re going to school at. He said we’ve asked everybody in town and you’re the only one I’ve seen that I thought might have some. He said we’re fixing to go back to school and we need some. And I told him that all I had was just a small amount of my own and I didn’t want to get rid of it, didn’t want to sell none . . . He kept on telling me how bad they needed it and how they couldn’t find any and I went on in to pay for the gas. Q. Did you have any further conversation with Mr. Peaden after that? A. Yes. He — when I got — he kept on after I got back and I got in my car. Q. When you say kept on, tell the Court exactly what he said. A. Just kept on saying how bad they wanted some marijuana they was going back to school and they really needed some to smoke cause they couldn’t find none no where . . . Q. All right, sir. Was that the reason that you agreed to make a sell? A. One of the reasons is to get them to quit bugging me. Q. To get them off your back. A. Yes. Q. And what was the arrangements that you made with Mr. Peaden or with Mr. Dull [GBI agent] about the sell [sic] of the marijuana? A. Well after I got back from paying the gas, I got in my car. And — Q. Did Mr. Peaden come back over there to the car and repeat his request of you? A. Yeah. He was standing there at the car and he kept saying, come on man you can sell me a little bit of it. He said, you ain’t got to sell me all of it. Said, keep you some out to smoke and sell me a little bit. And I told him — I said, all right. I said, just give me — I’ll just take me some out and you can have some. And he said all right I’ll be back in a minute let me run over to the car and get the money. So that’s when I pulled up and parked in front of the Nite Owl. And he went to a car . . . And when he came back, he had Mr. Dull with him.

“Q. And did you have any conversation with both of them then? A. When he come back, I asked him who he was and he said — said, this is my roommate, Mike Scott. He said, he’s going to be the one buying it. Said, I ain’t got no money. Said, he wanted to buy it, but he wanted to come over here and check the bag out before he bought it, so I brung him over here and just going to let him buy it from you. . . . Q. Was the — can you tell the Court why you made this sell [sic], was it because they asked you to do it? And that they told you that they were going take it to — back to school and use it there? A. Yeah. Q. And to keep them from bothering you about it? A. Yes, sir. Q. Was that the only reason you sold it to them? A. Yes, sir. Q. You made no approach to them, did you? A. No.”

Evidence of defendant’s predisposition to sell marijuana was limited to his possession of the drug at the time of the sale. “There was no evidence that the accused had been regularly engaged in the illegal sale of marijuana or that he had made any sale other than the one sale of less than an ounce, this to the [GBI] undercover agent.” Tolbert v. State, 138 Ga. App. 724, 725, supra.

We think the evidence was sufficient to raise an entrapment defense (which was defendant’s sole defense) for the jury’s consideration although the evidence did not demand a finding that defendant was entrapped. State v. Royal, 247 Ga. 309 (1) (275 SE2d 646). The evidence raised questions which could not be resolved as a matter of law. Tolbert v. State, 138 Ga. App. 724, 725 (1), supra; Johnson v. State, 147 Ga. App. 92, supra. Compare Garrett v. State, 133 Ga. App. 564, 565 (3) (211 SE2d 584) (where defendant’s testimony demonstrated “a marked disposition” to sell drugs) and Mafnas v. State, 149 Ga. App. 286, 290 (6) (254 SE2d 409) (where defendant admittedly sold drugs for I-V2 years).

Judgment reversed.

Sognier and Beasley, JJ., concur.

Decided January 22, 1988.

Howard P. Wallace, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, for appellee.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    75182.
    MOSLEY v. THE STATE.
    (365 SE2d 451)
   Sognier, Judge.

Appellant was convicted of driving under the influence of alcohol and driving with .12 percent or more by weight of alcohol in his blood. The court found that the accusations set forth two alternative methods of charging the offense of driving under the influence of alcohol, and ordered that appellant be sentenced only for Count 2, driving with .12 percent or more by weight of alcohol in his blood. Mosley appeals.

1. Appellant contends his conviction should be reversed because the State responded falsely to appellant’s Brady motion (Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215)). The basis of this contention is that in response to appellant’s motion, the State included the following statement: “Defendant was in shock after the accident. Impossible for officers or witnesses to tell that Defendant was drunk since he was so shaken. ...” (The accident referred to occurred when a woman leaving a night club ran into the road in front of appellant’s vehicle; the woman was struck by the car, resulting in her death.) At the hearing on appellant’s motion for a new trial, police officer Harvey Jennings testified that his opinion at the time of the incident and at the hospital where appellant was taken for treatment of shock was that appellant was not under the influence of alcohol. Jennings also testified that he volunteered this information to appellant’s counsel after the trial of this case. Because of this testimony, appellant argues that the State falsely responded to his Brady motion for exculpatory information, and that the false response constituted reversible error. We do not agree.

Jennings was the prosecuting officer in this case and testified at appellant’s trial. Appellant did not cross-examine Jennings about the statement supplied by the State in response to the Brady motion, nor did appellant ask Jennings his opinion as to appellant’s state of intoxication, if any, at the scene of the accident. Jennings’ name was on an amended list of witnesses furnished to appellant prior to trial, and there is no indication that he was not available to be interviewed prior to trial as to his expected testimony. Appellant also stated in his brief that he “has no evidence and does not suggest that the Solicitor knew of that opinion at any time prior to trial.” Under such circumstances we find no error.

Logic dictates that an opinion of a witness, unexpressed verbally or in writing, is not discoverable under a Brady motion, since the State is not required to disclose something it does not know. Lingerfelt v. State, 147 Ga. App. 371, 377 (9) (249 SE2d 100) (1978); Upshaw v. State, 172 Ga. App. 671, 672 (1) (324 SE2d 529) (1984). However, pretermitting the question of whether an unexpressed opinion of a police officer is “knowledge” in possession of the State (prosecutor) which is unknown to the defense, and thus discoverable, the police officer’s opinion in this case does not create a reasonable doubt that did not otherwise exist. See Castell v. State, 250 Ga. 776, 782 (2) (301 SE2d 234) (1983). Appellant was convicted and sentenced for driving with .12 percent or more by weight of alcohol in his blood. It is undisputed that appellant was driving his car, and the State introduced the results of a blood test showing that appellant had .19 percent by weight of alcohol in his blood after the accident. OCGA § 40-6-391 (a) (4) creates no presumption that a person is intoxicated, but merely proscribes driving with a blood alcohol level of .12 or more. Cunningham v. State, 255 Ga. 35, 37 (1) (334 SE2d 656) (1985). Thus, the police officer’s opinion as to whether or not appellant was under the influence of alcohol at the time of the accident was immaterial to the issue of whether he was driving with .12 percent or more by weight of alcohol in his blood. Accordingly, it was not error to deny appellant’s motion for a new trial on the ground that the State made a false response to appellant’s Brady motion.

2. Appellant alleges the evidence is not sufficient to support the verdict, because there is no evidence that at the time of the accident, appellant had a blood alcohol count of .12 percent or more by weight. The basis of appellant’s argument is that the State did not present evidence as to the effect of shock on a person’s blood alcohol level, and thus, there was no evidence that appellant was driving with .12 percent or more by weight of alcohol in his blood. This argument is without merit.

It is undisputed that appellant was driving at the time of the accident, and that a blood sample was taken from him about thirty minutes later at the hospital. Nor is it disputed that the results of a test of that blood disclosed a blood alcohol level of .19 percent. Since there was no evidence to show that appellant consumed any alcohol between the time of the accident and the time a blood sample was drawn, it may be inferred that the alcohol was in appellant’s blood at the time of the accident. Appellant has cited no authority, and we have found none, which requires the State to negate the possibility that appellant’s high blood alcohol level was caused by something other than his consumption of alcoholic beverages. Once the State established a prima facie case, as it did here, it was up to the defense to overcome such evidence; the State need not disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of the accused. Strong v. State, 246 Ga. 612, 616-617 (8) (272 SE2d 281) (1980). Since appellant did not overcome the State’s evidence, the evidence is sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided January 6, 1988

Rehearing denied January 25, 1988.

Donald T. Wells, Jr., for appellant.

Ken Stula, Solicitor, Kristopher Shepherd, Assistant Solicitor; for appellee.

Judgment affirmed.

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


text:
    75192.
    McINTOSH v. THE STATE.
    (365 SE2d 454)
   Sognier, Judge.

Appellant was convicted of trafficking in cocaine and possession of a firearm during commission of a felony, and he appeals.

1. Appellant contends the trial court erred by denying his motion to suppress evidence seized from the car in which he was a passenger, because the investigative stop was pretextual, and therefore, illegal. Evidence presented at a hearing on the motion disclosed that appellant was a passenger in a station wagon that was stopped on 1-95 by deputy sheriff Jeff Ginter after he observed the car weaving across lanes. Ginter had overheard truckers on his CB radio talking about a station wagon weaving on the road as though the driver was drunk, and running a car off the road. Thus, when Ginter saw a station wagon fitting the description given by the truckers, he followed the car for about a mile, and saw it weave across the centerline several times. When Ginter stopped the vehicle Richard Lackerson, the driver and a co-defendant, was extremely nervous, his hands shaking so badly he could not find his driver’s license in his wallet. Appellant kept reaching under the seat for something. Ginter called over his radio for backup assistance and after another deputy sheriff arrived, Lackerson and appellant were asked to step out of the station wagon. They did so and Ginter asked Lackerson if he would mind Ginter checking the vehicle for any type contraband; Lackerson said “sure, go ahead.” Ginter then found a loaded .38 calibre revolver under the passenger seat; a police scanner; and a yellow container with a large number of Q-tips which concealed a plastic bag containing a white powdery substance. The yellow container was in the tire well under the spare tire.

We find nothing in the evidence to indicate that Ginter stopped the station wagon on a traffic violation as a pretext for searching the vehicle. On the contrary, Ginter’s stop was based on what truckers had said over the radio and Ginter’s personal observation of the station wagon weaving across the centerline while following it for a mile. Only after stopping the vehicle was Ginter’s suspicion aroused by Lackerson’s extreme nervousness and appellant’s actions in reaching under the seat. It is undisputed that Lackerson’s consent to search was given freely, and one of the exceptions to the requirements of both a warrant and probable cause is a search conducted pursuant to consent. Mancil v. State, 177 Ga. App. 663, 664 (340 SE2d 279) (1986). Hence, it was not error to deny appellant’s motion to suppress evidence seized from the car by Ginter.

2. Appellant asserts error by failing to grant a mistrial after his character was improperly placed before the jury. In administering the oath to the jury, the clerk stated that appellant was charged with trafficking in cocaine, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. The latter charge had been severed from the instant charges for trial and was not before the court for consideration; thus, appellant moved immediately for a mistrial. He contends denial of the motion was error.

The trial court immediately instructed the jury that the charge of possession of a firearm by a convicted felon had no relationship to trial of the case, and instructed the jury to disregard anything the clerk had said in that regard. The court further instructed the jury that the only issues for the jury’s consideration were the offenses of trafficking in cocaine and possession of a firearm during the commission of a felony. The court again instructed the jury to disregard any inadvertent statement by the clerk, and overruled appellant’s motion for a mistrial. The court then ordered the clerk to administer the correct oath, and the clerk did so.

“A trial court has broad discretion in ruling on a motion for mistrial, and this court will not disturb such a ruling in the absence of a manifest abuse of discretion, and a mistrial is essential to preserve the defendant’s right to a fair trial. [Cit.]” Davis v. State, 182 Ga. App. 841, 842 (2) (357 SE2d 294) (1987). Under the circumstances here, we find no abuse of discretion in view of the corrective measures taken by the trial court, and thus, it was not error to deny appellant’s motion for a mistrial. Aldridge v. State, 153 Ga. App. 744, 745-746 (3) (266 SE2d 513) (1980).

Appellant also argues that his character was improperly placed before the jury by entry on the record of the nolle prosequi of the charge of possession of a firearm during commission of a felony against Lackerson, appellant’s co-defendant. However, there is nothing in the record to indicate that the jury was informed of the nolle prosequi of a charge against Lackerson, and appellant made no motion for a mistrial as to such an alleged action. Hence, there is nothing for us to review as to this matter.

3. Appellant alleges that the trial court erred by allowing Gail Bruen, a State witness, to testify because her name was not on the list of witnesses provided to appellant. When this issue arose the prosecuting attorney stated on the record that the witness had only become known to him within the preceding 72 hours. The trial of this case commenced on a Wednesday, and the State learned of this witness and interviewed her late in the afternoon of the preceding Monday. The prosecuting attorney notified appellant’s counsel of the State’s witness on Tuesday morning, and the witness was interviewed by appellant’s counsel the same day.

The purpose of OCGA § 17-7-110 (furnishing list of witnesses to accused) is to insure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had an opportunity to interview prior to trial. Logan v. State, 170 Ga. App. 809, 810 (318 SE2d 516) (1984); Bryant v. State, 174 Ga. App. 522, 524 (4) (330 SE2d 743) (1985). Since appellant’s counsel acknowledged that he interviewed the witness prior to trial, and the trial court offered counsel time to interview the witness if counsel had not earlier talked to the witness, it was not error to allow the witness to testify. Id.

4. Appellant contends the trial court erred by denying his motion to sever his trial from that of Lackerson, resulting in prejudice to appellant constituting a denial of due process. He argues that once the State was allowed to nolle prosequi the charge of possession of a firearm during commission of a felony against Lackerson, after the jury had knowledge that the charge was originally pending against both defendants, appellant would be unduly prejudiced because the jury would have the impression that appellant was guilty.

A motion for severance of defendants is a matter within the sound discretion of the trial court, and the ruling of the court is subject to reversal only for an abuse of that discretion. Grimes v. State, 168 Ga. App. 372, 374 (2) (308 SE2d 863) (1983). In exercising its discretion, the trial court should consider whether a joint trial will create confusion of evidence and law; whether there is a danger that implicating one defendant will be considered against the other; and whether the co-defendants will present antagonistic defenses. Cole v. State, 162 Ga. App. 353, 355 (4) (291 SE2d 427) (1982). In the instant case the evidence as to trafficking in cocaine was the same as to both defendants, so there was no danger of confusion of evidence and law. The remaining charge against each defendant was for a different offense as to each accused, so there was no danger that evidence against Lackerson could be used against appellant. Lastly, we note that the two defendants did not have antagonistic defenses.

Before this court will find an abuse of discretion we must be satisfied that appellant suffered prejudice of a substantial nature, and the burden is on him to make a clear showing of prejudice which was harmful; appellant must also show that the harm could have been avoided by a separate trial. Grimes, supra. Appellant has not met this burden, and we find nothing in the record to show prejudice against appellant resulting from a failure to sever his trial from that of Lackerson. Appellant’s reliance on Johnson v. State, 158 Ga. App. 398, 399 (4) (280 SE2d 419) (1981), is misplaced, as that case dealt with joining separate offenses, committed by the same defendant, solely on the ground that the offenses were of the same or similar character. Accordingly, there was no error in denial of appellant’s motion to sever.

5. Lastly, appellant alleges error in denial of his motion for a directed verdict of acquittal, which was based on insufficiency of the evidence. In addition to evidence of the search and seizure of evidence from the vehicle in which appellant was a passenger, discussed in Division 1, a forensic chemist testified that he analyzed the white powder found in the vehicle and determined that it contained cocaine. The powdery substance weighed 188.3 grams and contained 73.6 percent, or 138.6 grams, of pure cocaine. Appellant testified that he and Lackerson were in a rental car that appellant borrowed from Alice Brown, and appellant did not know the cocaine and the revolver were in the car.

Appellant argues that OCGA §§ 16-13-31 (a) (1) (trafficking in cocaine) and 16-11-106 (possession of a firearm during commission of a felony) both require actual physical possession of cocaine and a firearm on his person, and since neither the cocaine nor the revolver was on his person, his conviction of those offenses cannot be sustained.

As to the offense of trafficking in cocaine, this argument has been decided adversely to appellant. Evans v. State, 167 Ga. App. 396, 397 (1) (306 SE2d 691) (1983). Since OCGA § 16-13-31 (a) (1) provides that any person who is knowingly in actual possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine commits the felony offense of trafficking in cocaine, we find the evidence as to that offense sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). As to possession of a firearm during commission of a felony, however, we agree with appellant that his conviction of that offense must be reversed.

This court has held that evidence that guns were in a car during commission of a felony was not sufficient to show that the defendants had guns on their persons during commission of a felony, as required by OCGA § 16-11-106, supra. Beal v. State, 175 Ga. App. 234, 238 (4) (333 SE2d 103) (1985). Although § 16-11-106 (a) has been amended by adding the phrase “or within arm’s reach” after the phrase “on his person,” Ga. L. 1987, p. 624, § 1 (now OCGA § 16-11-106 (b)), that amendment was not effective until July 1, 1987, almost two months after appellant’s trial. Thus, the amendment would be an ex post facto law insofar as appellant’s trial and our consideration of this appeal are concerned, and as such, is prohibited. Art. I, Sec. I, Par. X, Const, of Ga., 1983. “As a general rule, ‘any law is ex post facto which is enacted after the offense was committed, and which, in relation to it or its consequences, alters the situation of the accused to his disadvantage.’ ” Winston v. State, 186 Ga. 573, 575 (1) (198 SE 667) (1938); Todd v. State, 228 Ga. 746, 748 (187 SE2d 831) (1972). The amendment clearly alters the situation of appellant to his disadvantage, and thus, cannot be considered on this appeal. While we recognize that the prohibition against ex post facto laws applies only to substantive, not procedural, changes, Cannon v. State, 246 Ga. 754, 755 (1) (272 SE2d 709) (1980), the amendment was clearly a substantive change as it altered the evidence required to be found guilty of this offense. See Todd, supra. Accordingly, appellant’s conviction of possession of a firearm during commission of a felony must be reversed, because the revolver was not on his person during commission of a felony (trafficking in cocaine). Beal, supra.

Decided January 6, 1988

Rehearing denied January 25, 1988

John B. Achord, for appellant.

Dupont K. Cheney, District Attorney, James S. Archer, Assistant District Attorney, for appellee.

Judgment affirmed as to Count I, trafficking in cocaine. Judgment reversed as to Count II, possession of a firearm during commission of a felony.

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


text:
    75210.
    GRESHAM v. THE STATE.
    (365 SE2d 459)
   Sognier, Judge.

Appellant was convicted of armed robbery, assault, possession of a handgun during commission of a crime, and possession of a firearm by a convicted felon; he was also found to be a second offender, having been previously convicted of a violation of the Georgia Controlled Substances Act. On appeal, appellant enumerates two errors, both relating to the allegedly erroneous admission of hearsay testimony by Officer Joel Casper. Therefore, the two enumerations will be considered together.

Decided January 11, 1988

Rehearing denied January 25, 1988

James E. Hudson, Kenneth Kalivoda, for appellant.

Harry N. Gordon, District Attorney, Richard J. Weaver, Assistant District Attorney, for appellee.

Casper was allowed to testify, over objection, as to what he was told by Monique Wade, a customer in the store when appellant committed the armed robbery which was the subject of this case. Appellant argues that Casper’s hearsay testimony was inadmissible as substantive evidence without some indicia of reliability, or as evidence to explain conduct. These arguments are without merit.

In regard to appellant’s complaint that Casper’s testimony was inadmissible hearsay, Wade testified prior to Casper, and after testifying as to the events at the store, Wade testified as to what she had told Casper. His testimony as to what he was told by Wade was consistent with her testimony as to what she told Casper. Thus, his testimony was merely cumulative of testimony already before the jury. In Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985), the court held: “At trial [Wade] was under oath and subject to cross-examination about her testimony and about her out-of-court statement. The concerns of the rule against hearsay are satisfied.”

As to the admissibility of Casper’s testimony as substantive evidence, that issue has been decided adversely to appellant. Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982); Cuzzort, supra. Hence there was no error in allowing Casper’s testimony as to what Wade told him, and such testimony was admissible as substantive evidence. Since the testimony was admitted properly, we need not address the issue as to whether such testimony was admissible to explain Casper’s conduct.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    75243.
    GRAHAM v. THE STATE.
    (365 SE2d 482)
   Banke, Presiding Judge.

The appellant was convicted of burglary and possession of a firearm by a convicted felon. He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that the trial court erred in admitting evidence of an incriminating statement which he made to a police detective two days following his arrest confessing, in essence, to his participation in the burglary. The appellant asserts that this evidence was inadmissible both because the detective had promised to help him leave Georgia for Kentucky in return for his cooperation and because he was not advised of his Miranda rights in a timely fashion.

With regard to the former contention, the detective testified during the Jackson v. Denno hearing as follows: “Q. Did you offer him any assistance in going back to Kentucky? A. The only thing that I told him that I could tell the authorities that he did cooperate with me. I told him I could not promise him anything or anyway to get him out of Georgia or get him back to Kentucky.” A confession is not rendered involuntary by the mere fact that it is preceded by a promise to the accused that his cooperation will be revealed to the proper authorities, such as the district attorney or the judge. See Rounds v. State, 166 Ga. App. 212 (2) (303 SE2d 543) (1983); State v. Summers, 173 Ga. App. 24 (2) (325 SE2d 419) (1984).

The appellant’s claim that his Miranda rights were violated is based on his assertion that the detective discussed with him the charges and the evidence against him before giving him the Miranda warnings. In this regard, the detective admitted that, prior to reading the Miranda warnings to the appellant, he explained who he was, why he was there, and what he already knew about the case from his prior investigation. The detective further testified, however, that he did not ask the appellant any specific questions about the offenses until after he had orally advised him of his Miranda rights and obtained his signature on a written waiver form.

“The state is required only to prove by a preponderance of the evidence that the appellant’s statement was voluntarily made. [Cits.] . . . We must accept the trial court’s determination that the appellant’s statement was voluntarily made absent a showing that this determination was clearly erroneous. [Cits.]” Tyler v. State, 247 Ga. 119, 123 (274 SE2d 549) (1981). From the totality of the evidence presented at the Jackson v. Denno hearing in this case, the trial court was authorized to conclude that the appellant made his statement freely and voluntarily, without inducement of the slightest hope of benefit or fear of injury by the detective, and after full advisement of his Miranda rights. See generally OCGA § 24-3-50. It follows that the trial court did not err in admitting the statement.

2. The appellant contends that the trial court erred in failing to sever the trial on the burglary charge from the trial on the firearm possession charge. In Head v. State, 253 Ga. 429 (322 SE2d 228) (1984), the Georgia Supreme Court ruled that where a defendant is charged both with possession of a firearm by a convicted felon and with a more serious offense which is unrelated in the sense that proof of the former is not required to prove the latter, the trial must be bifurcated to prevent evidence of the defendant’s prior felony conviction from influencing the jury unnecessarily. Because proof of the firearm possession charge in this case was in no way material or necessary to proof of the burglary charge, we must agree with the appellant that the trial court erred in not bifurcating the trial. However, we must agree with the state that the error was harmless in the context of the overwhelming evidence establishing the appellant’s guilt of the burglary. In addition to his confession, there was evidence that the appellant was in possession of the property stolen from the burglarized premises on the night the burglary occurred, that he resisted arrest upon being apprehended that same night, and that he gave a false name both to the arresting officers and to the booking officers. Viewing the evidence in its entirety, we conclude that it is highly probable that the evidence of the appellant’s prior felony convictions did not contribute to the verdict. Accord Stone v. State, 253 Ga. 433 (3) (321 SE2d 723) (1984); Bogan v. State, 177 Ga. App. 614 (1) (340 SE2d 256) (1986).

Decided January 25, 1988.

Linda B. Borsky, for appellant.

Thomas J. Charron, District Attorney, for appellee.

3. The evidence was amply sufficient to support the court’s charge on flight.

4. The appellant’s contention that the trial court erred in allowing the state to prove more than one of his prior felony convictions as a predicate to the firearm possession charge was not raised in the trial court and would, in any event, establish no ground for reversal, for the reasons set forth in Division 2 of this opinion.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    75382.
    KNIGHT v. THE STATE.
    (365 SE2d 484)
   Sognier, Judge.

Appellant was convicted of four counts of burglary, two counts of rape and two counts of aggravated sodomy. He appeals from those convictions.

1. Appellant alleges error in denial of his motion to sever for trial the counts of the indictment involving different victims. The offenses against the four victims occurred at separate residences on July 29, 1986; August 21, 1986; September 13, 1986; and October 23, 1986. Appellant argues that because the separate crimes did not arise out of the same conduct, did not involve the same victims, and evidence of the separate offenses would not be admissible one against the other, the trial court abused its discretion by denying the motion to sever the offenses for a trial. We do not agree.

Each of the four burglaries was charged as an unlawful entry into a dwelling house with intent to commit rape, and in two of the four burglaries, appellant accomplished his purpose. In each case appellant entered through a window in the early morning hours (between 1:00 and 4:00 a.m.); the incidents occurred once a month for four consecutive months; except for one instance when appellant was wearing only shorts, he was always naked, wearing only a stocking mask; each unlawful entry was made in low-income housing projects in Macon, Georgia, into residences occupied by young women living without a man, but with children present; and in the two instances where sexual acts were completed, appellant threatened the victims with some type of implement, apparently a knife and a screwdriver.

“[The Supreme Court of Georgia] has held that a defendant has a right to severance ‘where the offenses are joined solely on the ground that they are of the same or similar character . . . “because of the great risk of prejudice from a joint disposition of unrelated charges.” ’ [Cits.] However, where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance ‘lies within the sound discretion of the trial judge since the facts in each case are likely to be unique.’ [Cits.] In determining whether severance is necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense, the ‘court should consider whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.’ [Cit.]” Coats v. State, 234 Ga. 659, 662 (4) (217 SE2d 260) (1975); Fluellen v. State, 163 Ga. App. 425 (2) (294 SE2d 653) (1982). Where the modus operandi of the perpetrator is so strikingly alike that it demonstrates and designates the defendant as the common perpetrator, the offenses may be joined, subject to the right of the defendant to a severance in the interests of justice. Davis v. State, 159 Ga. App. 356, 357 (1) (238 SE2d 286) (1981); Mack v. State, 163 Ga. App. 778, 779 (1) (296 SE2d 115) (1982).

Applying the rules set forth above to the facts of the instant case, we find no abuse of discretion by the trial court in denying appellant’s motion to sever for trial the offenses of which he was convicted. The facts as to the crimes charged were so similar as to evidence a common plan or scheme, and involved the same modus operandi. Id.

2. Appellant contends the trial court erred by denying his motion to require the State to reveal the name of the confidential informant. A Brady motion was made prior to trial requesting such information. At a hearing on this issue Detective Henderson Carswell testified that he was interviewing a suspect in an unrelated child molestation case, and in the course of the interview informed the suspect of the modus operandi of the man Carswell was looking for in the case sub judice. The suspect then stated that Terry Knight (appellant) is “the kind of guy that would do that type of thing.” The suspect then told Carswell about an incident when appellant was in a room nude with the suspect’s five-year-old daughter. Based on this information the police asked appellant to come in for fingerprinting. He did so voluntarily, and it was determined by experts that his fingerprints and a palm print matched fingerprints and palm prints found on windowsills of the houses where the burglaries and sexual assaults occurred.

“[X]f the state proves to the court’s satisfaction that the informer is a pure tipster, who has neither participated in nor witnessed the offense, any evidence he might offer would be hearsay and inadmissible. Thus the tipster’s identity could not be material to the guilt or innocence of the defendant under Brady . . .” Thornton v. State, 238 Ga. 160, 165 (2) (231 SE2d 729) (1977). It is clear from the information given to Carswell that the informant was not a witness or participant in the offenses charged, and thus, the informant fell in the category of a tipster rather than a confidential informant. In fact, the informant did not give the police any information about the offenses charged, but stated only that appellant was the sort of person who would do something of that nature. Under such circumstances the tipster’s identity would not be material to a determination of appellant’s guilt or innocence, and it was not error to deny his motion for disclosure of the tipster’s identity.

3. Appellant asserts the evidence is not sufficient to support the verdict. The evidence disclosed that one victim was awakened by a naked man who was committing oral sodomy on her and then raped her while threatening her with a knife. Another victim was returning to her bedroom and was grabbed by a man clad only in a pair of shorts. The man forced the victim into her bedroom and made her commit oral sodomy on him. The man then committed oral sodomy on the victim and thereafter had carnal knowledge of her forcibly and against her will. A third victim was awakened by a naked man in bed with her with one hand over her mouth and the other hand behind her head. When the woman screamed for her mother the man jumped out the bedroom window and escaped. In the fourth instance, an eight-year-old girl awakened and saw a naked man in bed with her eleven-year-old sister. The younger girl ran to her mother’s bedroom and told her what was happening. As they started toward the bedroom the man ran out the front door. In each instance the victim’s homes were unlawfully entered through a window. Although none of the victims could identify the assailant, appellant’s fingerprints were found on a window sill of each victim’s home. The victims who were sexually assaulted were given medical examinations shortly after the assaults occurred and sperm was found in the vagina of each victim.

Decided January 25, 1988.

Walter J. Lane, Jr., for appellant.

Willis B. Sparks III, District Attorney, Sharon T. Ratley, Assistant District Attorney, for appellee.

Appellant argues that the fingerprint evidence alone was not sufficient to support his conviction as there might have been other explanations for the presence of appellant’s fingerprints. In Anthony v. State, 85 Ga. App. 119 (68 SE2d 150) (1951), we held that to warrant a conviction on the sole evidence that the defendant’s fingerprints were found at the place where the crime was committed, the evidence must be sufficient to exclude every reasonable hypothesis save that the fingerprints were impressed at the time the crime was committed. See also Glover v. State, 175 Ga. App. 285, 286 (333 SE2d 165) (1985). In the instant case, none of the victims knew appellant and appellant had no authority to enter any of their homes. While there might have been other explanations for the presence of appellant’s fingerprints at the homes of the victims, no such explanations were presented in court, and whether every reasonable hypothesis save that of the guilt of the defendant has been excluded is primarily a question for the jury where the jury is properly instructed on circumstantial evidence, Johnson v. State, 185 Ga. App. 505 (364 SE2d 893) (1988), as was done in the instant case. Accordingly, we find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs in Divisions 2 and 3 and in the judgment.


author: McMurray, Presiding Judge.

text:
    75476.
    BLASENGAME v. THE STATE.
    (365 SE2d 487)
   McMurray, Presiding Judge.

Appellant was indicted and tried for voluntary manslaughter. The jury returned a guilty verdict and he appeals.

Appellant was socializing with his brother-in-law in the early morning hours of October 11, 1986, when a seventeen-year-old girl he had recently dated also dropped into his motel room to visit. The seventeen-year-old male victim, whom the girl had been with earlier in the evening, was invited to join them although appellant had exhibited some signs of jealousy. All of them had partaken of various drugs and/or alcohol during the course of the evening, and at about 6:00 a.m. appellant drew a pistol and shot the victim, who was armed with a “knuckle-knife.” Appellant did not deny shooting the victim but claimed it was done in self-defense. Held:

1. Appellant attempted to present testimony that the victim had made threats against a third person and to show his general lifestyle to prove how likely it was he did the things the witness would say he did. The court ruled this evidence inadmissible unless some groundwork was laid. Appellant complains that the trial court thereby improperly disallowed proof of the victim’s general character for violence and his own reasonable apprehension of danger, and that the judge also erred in interposing objections, absent specific objections, to exclude defense evidence.

While evidence of prior acts of violence between the defendant and the victim may be allowed in some instances to show that the defendant acted in self-defense, “this rule does not apply to acts of the deceased against third persons. [Cit.]” Lee v. State, 256 Ga. 410, 412 (3) (349 SE2d 711) (1986). See Vuong v. State, 183 Ga. App. 37 (1) (357 SE2d 818) (1987). See generally McDonald v. State, 182 Ga. App. 509 (1) (356 SE2d 264) (1987). The trial transcript discloses that defense counsel did elicit testimony from this witness that the victim “wanted to kill” appellant. Furthermore, the trial court’s only participation was in colloquy in which the judge merely sought to ascertain to whom the threats had been made before the testimony was in fact allowed. This enumeration is without merit.

2. Next, appellant contends that the trial court erred in permitting the State to argue to the jury over objection that an intentional pre-planned killing was committed, as this was a greater offense than that for which he was indicted and could not be the basis for a conviction. We are unable to assess the full import of the remark as the arguments of counsel were not transcribed. However, upon objection the court instructed the assistant district attorney to stay within the bounds of the evidence, but allowed him to argue any reasonable deduction. We can only conclude that “[i]t was not error to overrule the objection to this comment as being improper and impermissible. ‘In the absence of anything to the contrary, the [assistant district attorney’s] remarks will be regarded as a deduction from the evidence.’ [Cit.]” Hall v. State, 180 Ga. App. 881, 884 (3) (350 SE2d 801) (1986). “Counsel may draw remote deductions and inferences from the evidence and there is no basis for objection even if the deductions and inferences are illogical or unreasonable. [Cit.]” Callahan v. State, 179 Ga. App. 556, 563 (5) (347 SE2d 269) (1986).

Appellant insists that the trial court’s failure to correct the argument objected to resulted in harm to him, but the evidence presented was such that a jury could infer that appellant intentionally shot the victim out of jealousy. Moreover, “in Hall, we also said that if the trial court is not requested to take further curative action, this failure to act cannot be addressed on appeal as error, although the original improper statement may be examined for reversible error.” Miles v. State, 183 Ga. App. 346, 348 (2) (358 SE2d 904) (1987). Thus, this enumeration cannot be sustained.

Decided January 25, 1988.

Frank G. Smith, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

3. The evidence was sufficient to authorize a rational trier of fact to find the appellant guilty of the offense of voluntary manslaughter beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). Accord Harris v. State, 183 Ga. App. 219 (1) (358 SE2d 634) (1987); Hardeman v. State, 180 Ga. App. 632 (1) (349 SE2d 839) (1986). We find no grounds for reversal.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    75521.
    GRAY v. GOBER.
    (365 SE2d 279)
   McMurray, Presiding Judge.

Appellant Misty Michelle Gray filed suit against Margaret Ann Swint and appellee Helen R. Gober seeking damages for injuries incurred in a automobile collision. Her complaint alleged that she was attempting to make a left turn off U. S. Highway 78 onto property owned by Ms. Gober; that Ms. Swint was driving at a high rate of speed toward her from the opposite direction; that a pile of dirt and gravel placed upon the right-of-way of U. S. Highway 78 obstructed her entrance into the driveway of the Gober property; and that as a result of the joint and concurrent negligence of the two defendants a collision occurred between her automobile and the one operated by Ms. Swint. Both defendants responded, denying the material allegations, and appellee Gober filed a motion for summary judgment.

Ms. Gober also filed a statement of material facts as to which there was no genuine issue, supported by affidavits, interrogatories, depositions and photographs. The uncontradicted facts were that plaintiff Gray, appellee Gober’s granddaughter, had no memory or recollection of the automobile collision due to trauma induced amnesia caused by head injuries; that the purpose of Ms. Gray’s visit on the day of the visit did not involve the conduct of any business between them; that approximately two days before the visit a county agency deposited a load of dirt and gravel in the driveway of appellee Gober’s residence without her request, knowledge or consent; that the dirt was piled in a mound about three feet high situated more or less in the center of the driveway many feet beyond the edge of the two paved lanes of U. S. Highway 78 and the right-of-way; that the mound was clearly visible, unconcealed and unobscured to anyone turning into the driveway; and that the collision occurred within the paved portion of U. S. Highway 78.

Sharon Elaine Allen deposed by affidavit the following uncontradicted facts: She was driving west on Highway 78 at 5:00 p.m. with her sister as a passenger and had been following for some time the automobile operated by Ms. Gray. When Ms. Gray’s vehicle signaled a left-hand turn and began to slow down, Ms. Allen also slowed down. She saw that a car was headed east in the other lane. She felt sure that Ms. Gray would wait for the oncoming car to pass because it was so close, but “to [her] surprise, just as the car was upon her Ms. Gray began her left-hand turn and was immediately struck by the oncoming car,” which was operated by Ms. Swint. Because of the suddenness of the turn Ms. Allen did not think the oncoming car had time to apply brakes or take any evasive action. “Ms. Gray did not hesitate or stop while she was making her turn but simply began and steadily continued to turn until she was struck by the oncoming vehicle.” Ms. Gray’s car at no time hesitated, stopped or traveled at a slow rate of speed, but the turn was made in such close proximity to the oncoming car that Ms. Allen did not believe that Ms. Gray’s automobile could have cleared the lane of traffic and completed the turn even if she had accelerated at maximum speed.

Appellant Gray moved to strike all affidavits and exhibits submitted by appellee Gober on various grounds, including specified alleged remaining genuine issues of fact, and also, because of her amnesia moved pursuant to OCGA § 9-11-56 (f) for the court to refuse the application for judgment or order a continuance until such time as her memory improved so that she could present by affidavit “all the facts essential to justify her opposition” to the motion for summary judgment. After reviewing the motions, arguments and supporting documents, the court ruled that the assertions of negligence against appellee Gober regarding the mound of dirt in her driveway could not be construed as the proximate cause of Ms. Gray’s injuries, nor was the mound causally related to the collision between her and Ms. Swint. Appeal is from the grant of Ms. Gober’s motion for summary judgment. Held:

1. Appellant contends that the trial court’s ruling was erroneous because it impermissibly invaded the province of the jury by usurping the factual determinations remaining to be made in regard to issues of negligence in general, and causation in particular. She argues that the court apparently focused only on whether a mound of dirt could ever be the proximate cause of an injury, rather than the issues of where the dirt was located, the size of the mound, the joint occurrence of the oncoming car and when the dirt could first be seen, and appellee Gober’s responsibility for having the dirt placed in her driveway and failure to have it removed or warn of potential danger.

This argument fails both factually and as a matter of law. There was no contradictory competent evidence that appellee Gober caused the dirt to be placed where it was or that its location caused a hazard. In his deposition appellant’s father deposed that the mound of dirt was some 20 feet away from the paved road surface, and there was room for a car to pass around it in the driveway. This was corroborated by photographs. While Mr. Gray’s affidavit contained certain speculations as to how the mound might have contributed to the collision, the observations of the one eyewitness to the collision are the only evidence to affirmatively show what happened.

We are certainly aware that “a landowner whose land is immediately adjacent to a public way . . . may not, without incurring a duty, maintain an artificial condition so situated that persons lawfully using the public way may, by accident or some force not their own fault . . . be injured by the artificial condition. [Cits.]” International Paper &c. Co. v. Bethune, 256 Ga. 54, 55 (344 SE2d 228) (1986), aff'g 177 Ga. App. 330 (339 SE2d 296) (1985). However, the liability of the landowner in such cases is based upon injuries to innocent persons lawfully on the property resulting from the negligent maintenance of such property. Appellant’s injuries were not caused by running into the mound of dirt on the Gober property, or even by trying to avoid it; she turned in front of an oncoming car and was struck in the paved roadway. Her assertions to the contrary are merely speculations as to what difficulties the mound might have caused, which were negated by the undisputed eyewitness account of the collision. “We are aware of no precedent which would impose a standard of care on one person which requires him to presume the negligence or sudden emergency of another. This proposition is simply untenable.” Tallman Pools of Ga. v. James, 181 Ga. App. 341, 343 (352 SE2d 179) (1986).

Thus, while it cannot be said that the mound of dirt, under any set of circumstances, could not be the proximate cause of appellant’s injuries, it was affirmatively established under the circumstances shown that appellant’s injuries were not caused by any negligence on the part of appellee. “ ‘A proximate cause in the law of negligence is such a cause as operated to produce particular consequences without the intervention of any independent unforeseen cause without which the injuries would not have occurred.’ [Cit.] The Supreme Court of the United States in Milwaukee &c. R. Co. v. Kellogg, 94 U. S. 469 (24 Led. 256), said: ‘It is admitted that the rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to a wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances . . . We do not say that even the natural and probable consequences of a wrongful act of omission are in all cases to be chargeable to the misfeasance or nonfeasance. They are not when there is a sufficient and independent cause operating between the wrong and the injury. In such a case the resort of the sufferer must be to the originator of the intermediate cause. But when there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. The inquiry must, therefore, always be whether there was any intermediate cause disconnected from the primary fault.’ [Cit.]” Georgia Power Co. v. Murray, 57 Ga. App. 141, 149, 150 (194 SE 403) (1937). Accord Ivey v. Fort Valley Utilities Comm., 178 Ga. App. 791 (344 SE2d 543) (1986).

“Summary judgment should only be granted when there is no genuine issue of a material fact to be resolved by the trier of facts, and the movant is entitled to judgment as a matter of law applicable to the facts. [Cit.] In adjudication of the motion, the trial court must give the respondent the benefit of all favorable inferences that may reasonably be drawn from the evidence. [Cit.] Although negligence cases are not frequently susceptible to final adjudication by motion for summary judgment, nevertheless, in cases of plain, palpable and indisputable evidence, summary judgment may be awarded. [Cits.]” Tallman Pools of Ga. v. James, 181 Ga. App. 341, supra at 342. “. . . Only (appellant’s) bare assertion that the situation is unsafe opposes (appellee’s) evidence (to the contrary). This simply is insufficient to show any breach of duty to (appellant) by (appellee). It shows only that appellant unfortunately [was injured]. In these circumstances, the trial court did not err in granting summary judgment to [appellee].” Ivey v. Fort Valley Utilities Comm., 178 Ga. App. 791, 792, supra. See Martin v. Bank South, 175 Ga. App. 422, 423-24 (333 SE2d 616) (1985). Accord Wanless v. Winner's Corp., 177 Ga. App. 783, 785 (2) (341 SE2d 250); Fort v. Boone, 166 Ga. App. 290 (304 SE2d 465) (1983).

2. Appellant complains that the trial court’s failure to deny appellee’s application for summary judgment based upon her invocation of OCGA § 9-11-56 (f) was an abuse of discretion. We do not agree. The cited Code section provides that the court “may refuse the application for judgment, or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had . . .” (Emphasis supplied.) However, it has been recognized that postponements are required only when there is an identified eyewitness to the occurrence, not for unidentified or unknown witnesses or to engage in “fishing expeditions” in the hope of coming up with a tenable cause of action. Herring v. R. L. Mathis &c. Co., 121 Ga. App. 373, 377 (2) (173 SE2d 716) (1970).

Decided January 25, 1988.

George C. Turner, Jr., for appellant.

Thomas E. Greer, William H. Boling, Jr., for appellee.

Appellant sought a continuance solely on the hope that her memory might improve to the point that she could remember the events at the time of the collision, but she offered no medical or other expert evidence that this was likely to occur. Moreover, there is no way to know whether any regained memories would be favorable or unfavorable to her case. “ ‘What must be shown ... are such circumstances as give the court reason to expect that beneficial objectives of pretrial discovery will be achieved.’ [Cit.]” Herring v. R. L. Mathis &c. Co., 121 Ga. App. 373, supra at 377. Since almost four years had passed at the time of trial with no return of memory, we cannot say that refusal to grant a continuance was an abuse of discretion. Accord Calcutta Apts. Assoc. v. Linden & Deutsch, 131 Ga. App. 743, 744 (1) (206 SE2d 559) (1974).

3. It follows that the grant of summary judgment to appellee was proper, since no genuine issue of material fact remained for jury determination.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    75578.
    COLEMAN v. McDONALD'S CORPORATION.
    (365 SE2d 282)
   Sognier, Judge.

McDonald’s Corporation brought suit on a promissory note against Roscoe Coleman, a former franchisee. Coleman answered and counterclaimed for breach of contract and fraud. The trial court granted summary judgment in favor of McDonald’s on both the main claim and the counterclaim, and Coleman brings this appeal.

The record reveals that in 1983 appellee entered into an agreement with appellant to repurchase his southeast Atlanta franchise, which had lost approximately $90,000. Under the terms of the agreement, appellant was to be paid $317,000, which was placed in escrow for payment to certain creditors of appellant. Appellant also borrowed $50,000 from appellee, which was likewise placed in the escrow account. To evidence this, he signed a secured promissory note. The actual purchase and sale agreement provided, inter alia, a priority list for the payment of appellant’s creditors to the extent the sales proceeds were sufficient. The purchase and sale agreement also included the following provision: “[Appellee] shall use its best efforts to obtain full and absolute releases from any and all creditors of [appellant], not paid in full, but in the event such releases cannot be obtained, then [appellant] shall continue to be legally responsible for any deficiency payment.”

The evidence is undisputed that appellant made no payments on the promissory note, despite proper demand by appellee. However, appellant contends appellee was not entitled to the summary judgment granted it by the trial court because genuine issues of material fact remain as to what efforts, if any, appellee used to obtain full and complete releases from appellant’s creditors. First, we note that appellant’s pleadings do not raise this issue. Instead, the answer and counterclaim allege that appellee was required by the agreement to pay off appellant’s creditors, and that it had not done so. However, as appellant now notes in his brief on appeal, the agreement did not require appellee to “pay off” appellant’s creditors, but only to use the escrow funds to pay creditors according to the priority list, and to use its best efforts to obtain releases from those creditors not paid in full. Second, appellant produced no evidence to rebut the affidavit of appellee’s vice president who stated on personal knowledge that the funds in escrow were used to pay appellant’s tax liabilities and obligations to appellee; that the amount in escrow was not sufficient to pay all creditors of appellant; and that appellee had not represented that it would do so. “ ‘When a motion for summary judgment is submitted and supported by evidence, the adverse party may not rest his case as made, but must set forth specific facts and present his case in full in order to show there is a genuine issue for trial. [Cits.]’ [Cit.] The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him. [Cit.] ‘(I)f the defenses set up in an answer are pierced by the plaintiff’s affidavits and the defendant fails to respond with specific facts showing a genuine issue for trial, summary judgment is properly granted.’ [Cit.]” Kelly v. American Fed. Savings &c. Assn., 178 Ga. App. 542-543 (1) (343 SE2d 755) (1986). Appellee’s unrebutted evidence having successfully pierced appellant’s allegations, the trial court did not err by granting summary judgment to appellee.

Judgment affirmed.

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

Decided January 25, 1988.

Bobby L. Giddens, for appellant.

Elizabeth J. Mallory, F. Steven Starling, for appellee.


author: Beasley, Judge.

text:
    72854.
    DEPARTMENT OF TRANSPORTATION v. LAND et al.
    (366 SE2d 242)
    Decided January 26, 1988.

      Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Roland F. Matson, Senior Assistant Attorney General, Gary H. Brakefield, Assistant Attorney General, for appellant.

      Warren N. Coppedge, Jr., F. Gregory Melton, J. Tracy Ward, for appellees.
   Beasley, Judge.

The judgment of this court in this case at 181 Ga. App. 94 (351 SE2d 470) (1986) has been affirmed in part and reversed in part by the Supreme Court after grant of certiorari. Therefore, insofar as it is inconsistent with the judgment of the Supreme Court in Dept. of Transp. v. Land, 257 Ga. 657 (362 SE2d 372) (1987), we vacate our earlier judgment and adopt the judgment of the Supreme Court.

Judgment affirmed in part and reversed in part.

Deen, P. J., and Benham, J., concur.


author: Pope, Judge.

text:
    75175.
    BARNES et al. v. DESTINY INDUSTRIES, INC.
    (365 SE2d 488)
   Pope, Judge.

Plaintiffs Kenneth and Nancy Barnes purchased a mobile home from an entity known as Destiny Homes Factory Outlet in Cobb County. In conjunction with the purchase, they received a written warranty from the company which manufactured the home, Destiny Homes of Moultrie, Georgia. Destiny Homes is apparently the trade name of defendant Destiny Industries, Inc. Because of certain problems they encountered after moving into the home, plaintiffs filed a breach of contract suit in Cobb County against “Destiny Industries, Inc., d/b/a Destiny Homes and/or Destiny Homes Factory Outlet.” Defendant filed an affidavit executed by its president attesting that it has never maintained any office or place of business in Cobb County. Defendant’s motion to dismiss for lack of venue was granted and plaintiffs hereby appeal. Plaintiffs’ two enumerations of error will be addressed as one.

Decided January 26, 1988.

Michael J. Kramer, for appellants.

Although the entity from which plaintiffs purchased their home has a similar name, there is absolutely no evidence in the record to support plaintiffs’ mistaken conclusion that Destiny Homes Factory Outlet is a division of Destiny Industries, Inc. In fact, the undisputed affidavit submitted by defendant establishes it maintains no office or place of business in Cobb County. Thus, the facts of this case are distinguishable from cases cited by plaintiffs in which a corporation with its principal place of business in another county nevertheless maintained an “office” in the county in which it was sued by employing the facilities of a separate local business. See Musgrove v. Kirksey Ford Sales, 159 Ga. App. 276 (283 SE2d 292) (1981); Gillis v. Orkin Exterminating Co., 155 Ga. App. 804 (272 SE2d 728) (1980). Venue may not be had over a manufacturer simply because a retailer, which is a separate legal entity, sells its product in the county in which suit is brought. See Barrow v. Gen. Motors Corp., 172 Ga. App. 287 (2) (322 SE2d 900) (1984).

Plaintiffs argue the warranty contract issued to them through the Cobb County vendor establishes that defendant conducts business in Cobb County. The warranty shows on its face that it was issued from defendant in Moultrie, Georgia, which is not located in Cobb County. Even if the contract was made in or is to be enforced in Cobb County, venue would be established over defendant only if, in addition to the contract, “it has an office and transacts business” in Cobb County. OCGA § 14-2-63 (c). The undisputed evidence shows defendant does not have an office in Cobb County.

'íhe uncontradicted sworn affidavit of an officer of the corporation stating it maintains no office in the county where suit was filed is sufficient to establish lack of venue. Daughtry v. Chaney-Bush Irrigation, 166 Ga. App. 708 (2) (305 SE2d 439) (1983). However, the trial court should have treated the motion to dismiss as a motion to transfer to the appropriate court where venue is proper, pursuant to the Uniform Transfer Rules (251 Ga. 893) (1984) adopted by the Supreme Court. Accordingly, we reverse the grant of the motion to dismiss and remand the action for transfer to the appropriate court where venue is proper. See Routh v. St. Marys Airport Auth., 178 Ga. App. 191 (2) (342 SE2d 502) (1986).

Judgment reversed and case remanded with direction.

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

C. Saxby Chambliss, for appellee.


text:
    75393.
    CURTIS v. BUTLER.
    (365 SE2d 490)
   Pope, Judge.

Plaintiff L. D. Butler brought this action to recover the balance due him pursuant to a written promissory note executed by defendant F. Randall Curtis and in default. Curtis brings this appeal from certain adverse rulings of the trial court which resulted in the entry of summary judgment in favor of Butler.

Curtis executed the note in question on September 13, 1979. The note was secured by 7,125 shares of stock of Butler Brothers Tire Company, Inc. and, in relation thereto, provided: “Notwithstanding any other provisions of this note, the undersigned [Curtis] shall have no obligation or liability for the payment hereof beyond the undersigned’s interest in the property described in the security agreement securing this note which is herein mentioned, including the dividends thereof and the proceeds from a sale of said stock. By the acceptance of this note and said assignment and security agreement securing this note, Holder [Butler] agrees that in the event of a default hereunder Holder will rely solely for the payment hereof on the collateral securing this note, and will not sue or otherwise seek recourse against the undersigned for any deficiency remaining after a foreclosure or sale of said stock pledged and described by the security agreement securing this note.” On March 4, 1980 Butler executed a release of any lien and security interest created by the September 13, 1979 agreement in 3,675 shares of Butler Brothers stock. This release provided that it shall not “in any way be construed to impair or release any portion of this debt owed by . . . Curtis to me represented by the promissory note wherein the stock ... is pledged.” On March 24, 1980 Butler executed a release to the remaining shares of Butler Brothers stock “created by the Collateral Agreement signed by . . . Curtis on the 13th day of September 1979, which Collateral Agreement is hereby terminated for all purposes.” Consideration for this second release was stated as ten dollars and other good and valuable consideration.

The thrust of Curtis’ enumerations of error is his contention that he is not personally liable to Butler on the subject note due to Butler’s release of the collateral securing the note. We find this argument to be entirely meritless. The note itself provided that Curtis promised to pay Butler a specified principal sum plus interest, and Butler established a prima facie case for recovery in this regard. The plain and unambiguous language of the two releases executed by Butler compels the conclusion that only the collateral was released, not Curtis’ obligation to Butler under the note. “It is, of course, basic law that the purpose of collateral is to secure the creditor and increase his chance of recovery in the case of default. The existence of a security interest in no way affects the existence of the debt. It merely provides the secured party with an immediate source of recovery in addition to the standard remedies of an unsecured creditor.” (Emphasis supplied and punctuation omitted.) ITT Terryphone Corp. v. Modems Plus, 171 Ga. App. 710, 712 (320 SE2d 784) (1984); McCullough v. Mobiland, Inc., 139 Ga. App. 260 (2) (228 SE2d 146) (1976); see also OCGA § 11-9-406.

Decided January 26, 1988.

David. R. Bundrick, for appellant.

Jeffrey B. Talley, for appellee.

The arguments raised by Curtis on appeal provide no ground for reversal of the trial court’s grant of summary judgment to Butler.

Judgment affirmed.

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


text:
    75401.
    WILLIAMS v. THE STATE.
    (365 SE2d 491)
   Beasley, Judge.

Defendant appeals his conviction of aggravated assault with intent to rape. OCGA § 16-5-21 (a) (1).

1. Although his first enumeration of error appears to raise a different issue, defendant argues that the trial court’s charge violated the principle in Walker v. State, 146 Ga. App. 237, 243 (2) (246 SE2d 206) (1978), which held erroneous an instruction to the jury that a crime may be committed by either of two methods, when the indictment charges it was committed by one specific method. Defendant asserts when the indictment sets forth that the offense was committed in more than one way, which is not the case here, the jury must be charged there can be no conviction unless the offense was committed in the manner alleged in the indictment. Defendant advances no basis for reversal. As in Searcy v. State, 168 Ga. App. 233, 234 (1) (308 SE2d 621) (1983), the trial court did follow that portion of the charge dealing with the offense with specific instructions that the jury would be authorized to convict only if it found beyond a reasonable doubt that the defendant was guilty of aggravated assault “as charged in the indictment.” See Lumpkin v. State, 249 Ga. 834, 835 (2) (295 SE2d 86) (1982).

2. Defendant contends that it was error to fail to instruct the jury, without request, as to the lesser included offense of simple assault since this amounted to defendant’s sole defense.

Decided January 26, 1988.

Raymond A. Majors, Jr., for appellant.

Dupont K. Cheney, District Attorney, for appellee.

The landmark Supreme Court decision of State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976), requires a criminal defendant to make a timely written request in order to later assign error on the failure to charge a lesser included offense not encompassed in an indictment. As was pointed out in the special concurrence to that opinion, this prevents “sandbagging” by defense counsel who seeks to obtain an acquittal and only after conviction becomes willing to settle for a conviction of a lesser offense. If it is genuinely contended that defendant may be found guilty of a lesser offense, it need only be requested.

Defendant did not submit a written request, and when objection was interposed after the submission of the charge no mention was made that this was defendant’s sole defense. Under the circumstances, defendant’s enumeration of error is without merit. See Gray v. State, 163 Ga. App. 720, 721 (294 SE2d 697) (1982).

3. There was evidence, although circumstantial insofar as intent is concerned, sufficient to establish that the defendant assaulted the victim with intent to commit rape; a rational trier of fact was authorized to find the defendant guilty of the crime charged beyond a reasonable doubt. See Burnett v. State, 137 Ga. App. 183, 184 (1 & 3) (223 SE2d 232) (1976). Bissell v. State, 153 Ga. App. 564 (266 SE2d 238) (1980) describes the essential elements of the offense.

Judgment affirmed.

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


text:
    75455.
    SAYLOR v. THE STATE.
    (365 SE2d 493)
   Beasley, Judge.

Defendant appeals her conviction of possession of more than one ounce of marijuana. OCGA § 16-13-30. Her sole enumeration of error questions the admissibility of evidence obtained as a result of a warrantless search.

The Columbus police department received an anonymous call reporting that defendant and her husband had two pounds of marijuana at their residence. When additional verifying information was requested, the caller hung up.

Narcotics officers made a surveillance of defendant’s home for two days without acquiring probable cause for a warrant. On the third day, one of the officers called defendant and told her the police were aware of what she had on the premises and “you’ve got to get that stuff out of there.” He hung up without identifying himself. Shortly thereafter defendant emerged from her house carrying two plastic bags which the officers observed through binoculors. One officer testified that the bags, which defendant put in the back seat of the car, were of the type commonly used to package marijuana and contained a substance with marijuana coloration.

When defendant drove off the officers followed and stopped her four or five blocks away. Defendant objected to the search being conducted on a public street, so at her request they returned to her home to complete the search. She agreed to a search of her home, but an officer found the two plastic bags of what was later shown to be marijuana in the rear seat of her vehicle. One bag included 67 smaller bags of marijuana and the other contained about a quarter pound of the same substance.

Defendant contends that the officers were not authorized to search the back seat of her vehicle without obtaining a warrant and that they should not be permitted to create exigent circumstances so as to justify the search.

Although the initial tip to the police was not sufficient to supply probable cause, it plus the information gathered by observation during the surveillance was. A search does not result from merely observing what is in plain sight. See 68 AmJur2d 678, Searches & Seizures, § 23; Harris v. United States, 390 U. S. 234 (88 SC 992, 19 LE2d 1067) (1968). The use of binoculors to enhance vision is permissible. Lee v. United States, 343 U. S. 747, 754 (72 SC 967, 96 LE 1270) (1951); Griffin v. State, 180 Ga. App. 189 (348 SE2d 577) (1986). There was no violation of defendant’s right in establishing the vantage point for public observation. Thus, what they saw indicating the presence of contraband in the circumstances described was sufficient for a finding of probable cause by a detached magistrate. See Galloway v. State, 178 Ga. App. 31, 34 (342 SE2d 473) (1986). The search of the automobile and its contents was authorized even though slightly delayed to accommodate defendant. See Michigan v. Thomas, 458 U. S. 259 (102 SC 3079, 73 LE2d 750) (1982); Florida v. Meyers, 466 U. S. 380 (104 SC 1852, 80 LE2d 381) (1984); United States v. Johns, 469 U. S. 478 (105 SC 881, 83 LE2d 890) (1985).

The ruse about which defendant complains was not used to gain entrance to defendant’s home or to obtain a means of observing inside that house. It merely prompted defendant to come out of the house into a publicly observable place with what appeared to be marijuana in tow. Because deception is prohibited only where used as a means to violate defendant’s rights, the calculated advice given here was not of that character and not a basis to suppress the evidence obtained. See Lewis v. United States, 385 U. S. 206 (87 SC 424, 17 LE2d 312) (1966).

Decided January 26, 1988.

Edgar G. Kimsey, Jr., for appellant.

William J. Smith, District Attorney, for appellee.

Judgment affirmed.

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


text:
    75553.
    SKIPWORTH v. THE STATE.
    (365 SE2d 284)
   Pope, Judge.

Defendant Earl W. Skipworth was convicted of possession of cocaine with intent to distribute. Held:

1. In his first enumeration defendant argues that the affidavit upon which the warrant to search his apartment was issued was insufficient because it failed to specify the dates on which the confidential informant observed the events enumerated therein. In a related enumeration, defendant also argues that the information contained in the affidavit was insufficient to overcome the issue of staleness.

“In State v. Luck, 252 Ga. 347 (312 SE2d 791) (1984), . . . [t]he Supreme Court held that ‘(t)ime is assuredly an element of the concept of probable cause. (Cit.) However, the precise date of an occurrence is not essential. Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant. (Cit.) When the affidavit indicates the existence of an ongoing scheme to sell drugs, the passage of time becomes less significant than would be the case with a single, isolated transaction. (Cit.)’ Luck v. State, supra at 347.” Borders v. State, 173 Ga. App. 110, 113 (325 SE2d 626) (1984).

In the present case, the affidavit, which was dated October 11, 1985, provided, in relevant part, as follows: “On 10-11-85, I (Inv. W. C. Britt), received information from a confidential and reliable informant who . . . was present at the above location and did personally observe the named subject selling, storing and concealing cocaine. The informant further states that cocaine is presently being sold, stored, and concealed inside of 518 Auburn Ave., NE Apt. # 2 upstairs by black male known only as Skip.”

Based on the foregoing we are convinced that although the affidavit did not specify each and every date on which the informant observed the selling, storing and concealing cocaine, the information provided therein “certainly created ‘a reasonable belief that the conditions described in the affidavit still prevailed at the time of the issuance of the warrant.’ ” Little v. State, 173 Ga. App. 512, 513 (326 SE2d 859) (1985). See also Landers v. State, 183 Ga. App. 691 (2) (359 SE2d 748) (1987); Ayers v. State, 181 Ga. App. 244 (5b) (351 SE2d 692) (1986); Cline v. State, 178 Ga. App. 470 (1) (343 SE2d 506) (1986). Hence defendant’s first two enumerations of error are without merit.

2. Defendant also contends that the search warrant was fatally defective because the presenting officer did not affirm under oath the contents of the supporting affidavit. Contrary to defendant’s assertion, however, the testimony of Officer Britt is uncontradicted that the affidavit was presented under oath properly administered by the issuing judicial officer. Consequently, this enumeration is also without merit.

3. Lastly, defendant contends that the trial court erred in refusing to grant defendant’s request for disclosure of the identity of the confidential informant who supplied the information contained in the affidavit.

“Public policy in Georgia favors nondisclosure of the identity of an informant in the interest of the free flow of information about criminal activity. (Cit.) Grimes v. State, 168 Ga. App. 372, 376 (5) (308 SE2d 863) (1983). But this is not conclusive. Brady v. Maryland, 373 U. S. 83, 87 (83 SC 1194, 10 LE2d 215) (1963), held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment. The evidence is material if it is of sufficient significance to result in the denial of the defendant’s right to a fair trial if not disclosed. (Cits.) Considered from this perspective, an absolute privilege against disclosure in every case involving an informer is impermissible where a Brady motion is made. Thornton v. State, 238 Ga. 160, 163 (231 SE2d 729) (1977).

“(T)he basis of both Brady and Roviaro (Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1956)) is fundamental fairness to the accused. Therefore, (Brady and Roviaro) must be read together where the question is disclosure of the identity of the state’s (informant).

“(T)he trial judge must, therefore, conduct a hearing on the merits of the Brady motion and if he finds the evidence material under Brady weigh it against the state’s privilege under Roviaro. Davidson v. State, 156 Ga. App. 457, 459 (3) (274 SE2d 807) (1980); Williams v. State, 178 Ga. App. 581, 585 (3) (344 SE2d 247) (1986).

“Disclosure could be material to the defense where the informant is a witness or a participant, or entrapped a defendant into committing a crime he would not otherwise have committed. Grimes v. State, supra at 376 (5).

Decided January 26, 1988.

Harvey A. Monroe, for appellant.

Lewis R. Slaton, District Attorney, Chris Jensen, Assistant District Attorney, for appellee.

“However, if the court is satisfied that the informant was merely a tipster, that he did not participate in or witness the alleged crime, no further inquiry is necessary and the informant’s identity remains privileged. (Cits.) Dyer v. State, 162 Ga. App. 773, 774 (2) (293 SE2d 42) (1982).” (Punctuation omitted.) Roden v. State, 181 Ga. App. 287, 290-91 (351 SE2d 713) (1986).

In the present case, defendant was charged with possession of cocaine with intent to distribute based on the contraband that was discovered in defendant’s apartment at the time the warrant was executed. Because the testimony of Officer Britt is undisputed that the informant was not present at the time the warrant was executed and this contraband was found, the trial court was authorized to conclude that the informant was a mere tipster, who neither participated in nor witnessed the offense with which defendant was charged. Accordingly, the trial court did not err in refusing to require disclosure of the identity of the informant. Accord State v. Mason, 181 Ga. App. 806 (3, 4) (353 SE2d 915) (1987); Roden, supra; May v. State, 179 Ga. App. 736 (3) (348 SE2d 61) (1986); Ramsay v. State, 175 Ga. App. 97 (2) (332 SE2d 390) (1985).

Judgment affirmed.

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


author: Birdsong, Chief Judge.

text:
    75634.
    SCHWARTZ v. RENNIE et al.
    (365 SE2d 159)
   Birdsong, Chief Judge.

This is an appeal of the separate orders of the trial judge granting appellee-defendant Lawrence J. Konter’s and appellee-defendant Donald Rennie’s motions for summary judgment. This suit was initiated after appellant’s agreement to purchase real property terminated following his failure to timely obtain the requisite commitment for financing. Appellant has asserted two enumerated errors. Held:

1. Appellant’s first enumerated error is that the trial court erroneously granted summary judgment in favor of the appellee-defendant, Lawrence J. Konter, denying the claim of appellant for damages based on appellees’ breach of his fiduciary obligation and fraud.

As appellant has failed to support that portion of his enumerated error which asserts fraud on the part of appellee Konter, we find that pursuant to our Rule 15 (c) (2) this portion of his enumerated error has been abandoned. See Craft v. Hosp. Auth. of Hall County, 173 Ga. App. 444 (326 SE2d 590).

Decided January 26, 1988.

John G. Hunter, for appellant.

John R. Calhoun, Stanley E. Harris, Jr., Malcolm MacKenzie III, Neil C. Manson, for appellees.

In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Bridges v. Interstate Truck Leasing, 171 Ga. App. 361 (319 SE2d 531); see Dickson v. Dickson, 238 Ga. 672, 675 (235 SE2d 479), citing Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442). Applying this test to the trial court’s grant of summary judgment in favor of appellee-defendant, Lawrence J. Konter, we find that the trial court’s ruling was correct, as the evidence, when viewed in this posture, shows that “there is no genuine issue as to any material fact and that the [appellee-defendant, Konter] is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). Appellee-defendant Konter’s motion for penalty is denied.

2. Appellant’s second enumerated error is that the trial court erred in granting summary judgment in favor of the appellee-defendant, Donald Rennie, denying the claim for damages based on the appellees’ breach of its fiduciary obligation to appellant, fraud, acquisition of antagonistic rights to a confidential relationship and interference with appellant’s business opportunity. Although we find that appellant and appellee Rennie did occupy a confidential relationship (OCGA § 23-2-58) and that as to appellant the appellee Rennie was a fiduciary, the evidence of record when viewed most favorably for appellant shows that there is no genuine issue as to any material fact concerning the alleged breach of this relationship.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    75089.
    WALLACE et al. v. ARA SERVICES, INC. et al.
    (365 SE2d 461)
   McMurray, Presiding Judge.

This negligence case stems from a motor vehicle collision in which defendant Adkins operated a vehicle owned by defendant ARA Services, Inc. (“ARA”). Plaintiffs alleged that the collision, which occurred on October 2, 1984, was caused by the negligent acts of Adkins (it was asserted that Adkins was “following too closely” and that she was driving under the influence of alcohol) and that ARA was liable under the doctrine of respondeat superior. ARA answered the complaint and moved for summary judgment. The motion was supported by the affidavit of Barber Forrest, ARA’s Division Manager in Gaines-ville, Georgia. In his affidavit, Forrest deposed that Adkins was employed by ARA as a catering worker; that her job required her to travel to various facilities within a 90-mile radius of Gainesville; that she travelled to the various facilities in an ARA Services, Inc. van; and that she “kept possession of the ARA van on a full time basis, but was explicitly instructed that other than using the van to drive to or from a plant, or to and from Gainesville for her weekly check in, she was not to use the van for any personal business or pleasure.” Forrest also deposed that Adkins asked him if she could be off from work on October 2, 1984, because she needed to move to another residence; that he granted Adkins’ request and, therefore, she was not scheduled to work that day; that Adkins’ use of the ARA vehicle on October 2, 1984, was unauthorized; and that Adkins was not acting “within the course and scope of her employment with ARA Services, Inc.” when she collided with plaintiffs.

Thereafter, plaintiffs amended their complaint to add a second theory of liability — negligent entrustment — and ARA moved for summary judgment again. In support of the second motion, ARA submitted another Barber Forrest affidavit. Therein, Forrest deposed that Adkins was initially employed by ARA as a commissary worker; that she was laid off by ARA on August 13, 1983; that he began looking for an employee to perform the catering job in March 1984; that he hired Adkins for the catering job position because he had heard that she was a good employee; and that he “specifically instructed Sandra Adkins not to use the [ARA] vehicle for any personal business or pleasure whatsoever and to only use the vehicle for the business of ARA.” The affiant further deposed that “[a]t no time prior to the [collision], nor any time subsequent thereto, did ARA have any knowledge that Sandra Adkins had ever been involved in an automobile accident . . . that she had ever been arrested for driving while intoxicated; that she had ever driven while intoxicated; that her driver’s license had ever been revoked or suspended; or that she had ever been charged with any traffic violation.” Finally, Forrest deposed that ARA never had any knowledge that Adkins was an incompetent or reckless driver or that she had a “drinking problem.”

Following a hearing, the trial court granted ARA’s motions for summary judgment. This appeal was filed by plaintiffs. Held:

1. “ ‘To hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own; that is, the injury must have been inflicted in the course of the servant’s employment’ [Cits.] ‘For a tort committed by the servant entirely disconnected from the service or business of the master, the latter is not responsible under the doctrine of respondeat superior, although it may occur during the general term of the servant’s employment.’ [Cit.]” Sparks v. Buffalo Cab Co., 113 Ga. App. 528, 529 (148 SE2d 919). The undisputed evidence demonstrates that Adkins was not pursuing the business of ARA at the time of the collision. Rather, Adkins was engaged in a personal endeavor. Accordingly, ARA is not responsible under the respondeat superior doctrine. “ ‘Where a servant, while not engaged in the performance of his master’s business, and during a time when he is free to engage in his own pursuits, uses his master’s automobile for his own purposes (although he does so with the knowledge and consent of his master), and, while so using it, negligently injures another by its operation, the master is not liable for the injuries.’ [Cits.]” Sparks v. Buffalo Cab Co., 113 Ga. App. 528, 530, supra.

2. “Under the theory of negligent entrustment, ‘liability is predicated not on the doctrine of respondeat superior but on a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless, and this negligence must concur, as a part of the proximate cause, with the negligent conduct of the driver on account of his incompetency and recklessness. (Cits.)’ Saunders v. Vikers, 116 Ga. App. 733, 735 (158 SE2d 324).” May v. Phillips, 157 Ga. App. 630, 631 (2) (278 SE2d 172). The second affidavit of Barber Forrest establishes that ARA had no knowledge that Adkins was a reckless or incompetent driver. “It was incumbent upon [plaintiffs], in opposing defendant [ARA’s] motion for summary judgment, to show that [ARA] had ‘actual knowledge of a pattern of reckless driving or facts from which such knowledge could be reasonably inferred in order to preserve the issue for jury determination.’ Saunders, supra, Division 7. The evidence presented by [plaintiffs] simply does not support such a determination or inference.” May v. Phillips, supra.

3. Plaintiffs contend the trial court erred in granting ARA’s motion for summary judgment because Barber Forrest’s second affidavit was contrary to his earlier deposition testimony. In this regard, plaintiffs point out that in his affidavit Forrest averred he personally instructed Adkins that the ARA vehicle was to be used for business only while in his deposition Forrest stated that he did not personally orient Adkins although ARA’s policy was “reiterated at our meetings.”

Ordinarily, summary judgment should not be granted where a question of credibility is raised upon a material issue in the case. Ash v. Spear, 137 Ga. App. 12, 13 (223 SE2d 26). But see Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). On the other hand, summary judgment is not inappropriate where contradictory statements are made with regard to wholly immaterial matter. See generally Raven v. Dodd's Auto Sales & Svc., 117 Ga. App. 416, 422 (4) (160 SE2d 633). In this case, Forrest’s seemingly contradictory statements do not touch upon material matters. The orientation of Adkins concerning the use of ARA’s vehicle has no bearing upon respondeat superior or negligent entrustment issues.

Decided January 14, 1988

Rehearing denied January 27, 1988

John W. Timmons, Jr., for appellants.

Eve A. Appelbaum, for appellees.

4. The trial court did not err in granting defendant ARA’s motion for summary judgment.

Judgment affirmed.

Sognier and Beasley, JJ., concur.