text:
    A90A1205.
    WEST v. NODVIN.
    (397 SE2d 567)
   Birdsong, Judge.

Appellant, Thomas B. West, appeals the order of the trial court granting judgment to appellee, Marvin P. Nodvin, “upon a jury verdict along with all orders granted prior thereto.”

Both appellant and appellee are attorneys. This suit was filed on August 15, 1984, in two counts, one in contract and one in tort (fraud); the complaint was subsequently amended to pray inter alia for punitive damages in the amount of “not less than $25,000.”

This suit in essence was based on averments that appellant contracted, with intent to defraud, for certain legal services of an original value of $983.70 and thereafter did not pay for them. Pretrial discovery procedures in this case were conducted in such a manner that the appellee moved for sanctions against appellant under the provisions of OCGA § 9-11-37 (d). On November 17, 1986, the trial court entered an order finding that appellant wilfully failed to appear in the taking of his deposition, awarded attorney fees and costs to appellee in the amount of $2,092, and ordered appellant to give his deposition instanter. In December 1987, appellee moved for sanctions against appellant asserting inter alia that appellant had “wilfully fil[ed] evasive and untrue pleadings, wilfully fil[ed] evasive and false responses to interrogatories and request for production, and wilfully fail[ed] to provide discovery.” By order of June 8, 1988, filed June 12, 1988, the trial court awarded appellee’s attorney $600 in attorney fees for bringing the motion. On June 1, 1988, co-counsel for appellee took appellant’s deposition. On June 9, 1988, appellee again moved for sanctions against appellant, under OCGA § 9-11-37, requesting inter alia that the appellant’s answer be stricken, that he be declared in default, and that judgment be rendered against him where appropriate for appellant’s wilful failure to obey the court’s order of April 8, 1988, particularly by not making payment of attorney fees as ordered. The trial court, as admitted in judicio in the briefs of both appellant and appellee, subsequently ordered that appellant’s answer be stricken and that appellant be declared in default.

The trial court, upon timely motion by appellee, entered a directed verdict against appellant for $4,295.41 principal and interest and for $8,803 attorney fees. The jury returned a verdict for $72,000 in punitive damages against appellant. Judgment was entered accordingly. Held:

1. Appellee’s motion for damages for frivolous appeal is denied.

2. Appellant asserts that the trial court erred in granting appellee’s motion to quash appellant’s notice to produce and appellee’s motion in limine.

(a) The only notice to produce filed by appellant that has been adequately identified within the record of trial is a notice to produce served by mailing on October 12, 1989. This notice includes inter alia a request for “[a]ny business books and records” of appellant or his firm and all other related entities where appellant practiced law during the time when he represented appellee, “which reflect payments received for legal services rendered to [appellant] or to any corporation in which [appellant] had an ownership interest. . . .”

Appellee asserts that this notice is so broad and harassing in nature as to require that it be quashed. In its motion to quash appellee asserted the following ground: “Defendant is in default, there is no issue as to the amount of the contractual indebtedness from the [defendant to the [p]laintiff, and the documents requested are irrelevant and immaterial and are not admissible.”

Appellant’s notice to produce is so broad in scope that if granted it would potentially necessitate the search for and the production of books and records neither relevant nor in any manner relating to the case sub judice. Moreover, “Georgia law is clear that, once liability has been established [as in this case], evidence which is proffered for the purpose of establishing the appropriate amount of damages, but which at the same time tends to suggest comparative or contributory negligence [or would otherwise tend to contest the right of recovery] on the part of the plaintiff, is inadmissible. [Cits.]” Fulton County Hosp. Auth. v. Hyman, 189 Ga. App. 613, 615 (4) (376 SE2d 689); compare Krystal Co. v. Carter, 180 Ga. App. 667, 669 (350 SE2d 306). Appellant’s notice to produce is so broad it includes a request for the production of documents inadmissible in evidence under the rationale of Fulton County Hosp. Auth. and Krystal Co.

As our courts have long held, “[e]ven if some of these [requested documents] may have been relevant... no court should impose upon the opposite party the onerous task of producing great quantities of records which have no relevancy. The notice should be specific enough in its demands to relate the documents sought to the questions at issue.” Horton v. Huiet, 113 Ga. App. 166, 169 (1) (147 SE2d 669); compare Master Mtg. Corp. v. Craven, 127 Ga. App. 367 (2) (193 SE2d 567). Appellant’s notice of production is not specific within the meaning of Horton, and accordingly, the trial court did not abuse its discretion in denial of the order to produce. A correct ruling of the trial court will not be reversed regardless of the reason given therefor. National Consultants v. Burt, 186 Ga. App. 27, 33 (366 SE2d 344), writ vacated, 258 Ga. 645 (374 SE2d 532).

(b) During the hearing on the motion to quash, appellee made an oral motion seeking “an order in limine against [appellant’s] introduction of any documents.” The record reflects that on the day of trial appellant attempted to tender, four statements of account from appellee’s office; upon certain of these statements, appellant West had made a handwritten notation that the obligation had been paid, stating the payment date, and a check number. The trial court ruled these documents would be excluded because of the lateness of their production and because the notations thereon were self-serving.

Appellant cites us to no express ruling by the trial court granting appellee’s oral motion in limine. “It is not the function of this court to cull the record on behalf of a party in search of instances of error.” Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (386 SE2d 709). “This court can not read every line of the record and transcript to hunt for error.” Benefield v. Benefield, 224 Ga. 208, 209 (5) (160 SE2d 895).

Moreover, the trial court did not err in refusing to admit the statements in question for several reasons. Those statements bearing the notation of appellant that the bill had been paid would be inadmissible under the rule of Krystal Co., supra; and we agree with the trial court that they are self-serving. Assuming arguendo the statements were relevant for any purpose, a trial judge may exercise his discretion in excluding relevant evidence if he finds that its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice or of misleading the jury. Friedman v. Friedman, 259 Ga. 530, 532 (3) (384 SE2d 641). Thirdly, as a general rule, admission of evidence is a matter which rests largely within the sound discretion of the trial court and an appellate court will not interfere with its rulings absent abuse of that discretion. Whisnant v. State, 178 Ga. App. 742 (1) (344 SE2d 536). We find that, under the circumstances of this case, the trial court did not abuse its discretion in refusing to admit documents which purportedly had been discovered and made available only on the day of trial.

3. Appellant asserts in his third and fourth enumerations of error that the trial court committed reversible error in admitting certain evidence of “stubborn litigiousness” and of other transactions. We disagree.

(a) Appellant refers to evidence, concerning his conduct and demeanor, introduced during the taking of his deposition. The record reflects that his objection to the admission of this particular evidence at this particular point in time was sustained. Subsequently, in an attempt to impeach appellant’s testimony to the effect he was not abusive during this litigation, appellant was asked whether during the taking of his deposition he had responded to appellee’s co-counsel by saying, “Jesus Christ! Bitch!” Appellant made no timely objection to this procedure. On appeal only those issues properly raised before the trial court will be considered. Department of Transp. v. Hillside Motors, 192 Ga. App. 637, 638 (1) (385 SE2d 746).

(b) Regarding the remaining incidents where evidence of “stubborn litigiousness” was admitted, appellant in essence asserts that his “liability for stubborn litigiousness was deemed admitted and was not an issue. The only evidence that would have been properly admitted on Count I was the amount of attorney’s fees.” Pretermitting the question of whether the evidence could properly have been admitted as being relevant to establish appellant’s stubborn litigiousness for purposes of award of attorney fees is the issue of whether it was relevant to establish the amount of attorney fees to be awarded. We hold that it is. The trial court could consider the type and nature of appellant’s acts of stubborn litigiousness in determining whether the amount of attorney fees claimed was excessive. Acts of stubborn litigiousness have some relevancy in supporting an attorney’s claims both as to the number and type of billable hours spent upon a case. Unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, “[t]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.” (Citations and punctuation omitted.) Department of Transp. v. Swanson, 191 Ga. App. 752, 754 (3) (382 SE2d 711). Moreover, considering the posture of the record, we are satisfied to the extent, if any, that any evidence of “stubborn litigiousness” either was not relevant as to matters in issue or was not admissible for purposes of impeachment (see generally OCGA § 24-9-82), the introduction of such evidence was harmless within the meaning of OCGA § 9-11-61.

(c) Appellant testified that “I pay all my bills.” The trial court did not err in admitting in evidence a number of tax fi. fas. to impeach the asserted fact that appellant paid all his bills. OCGA § 24-9-82.

(d) “It is well settled that motive and intent may be shown by conduct in other transactions of a similar nature to that under investigation.” Terry v. Fickett, 199 Ga. 30, 38 (8) (33 SE2d 163); Green, Ga. Law of Evidence (3d ed.), Relevancy, § 68. Such evidence also is admissible to show malice (Worn v. Warren, 191 Ga. App. 448 (1) (382 SE2d 112)) and good faith or bad faith (Tapley v. Youmans, 95 Ga. App. 161, 175 (97 SE2d 365)); and, it is admissible when it provides probative evidence of wilful misconduct, fraud, wantonness, oppression, or a course or pattern of conduct which would raise the presumption of conscious indifference to consequences. “ ‘Evidence of other transactions or occurrences is admissible if it is relevant to the particular instance and does not place too great a danger of undue consumption of time, confusion of issues, undue prejudice or unfair surprise.’ ” Worn, supra. The evidence of appellant’s other allegedly fraudulent or similarly related conduct was relevant in this particular case, to show wilful misconduct, motive, fraud, oppression, or conduct evidencing an entire want of care evidencing conscious indifference to consequences; and as such would be relevant regarding the amount of punitive damages, if any, to be awarded. See Jackson v. Co-op Cab Co., 102 Ga. App. 688, 692 (3) (117 SE2d 627); see also OCGA § 51-12-5.

The trial court did not abuse its discretion in admitting the evidence in question; moreover, the admission in evidence inherently contained the ruling of the trial court that any danger of undue consumption of time, confusion of issues, undue prejudice, or unfair surprise did not substantially outweigh the probative value of the testimony. Accordingly, we will not interfere with the ruling of the trial court’s admission of this evidence of similar transactions. Whisnant, supra.

(e) Appellant in essence asserts that it was fundamentally unfair to him to have precluded him from introducing documentary evidence in his behalf when “the trial court gave [appellee] a virtual field day” in introducing evidence. Suffice it to say that “[o]ne cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.” Rush v. Southern Prop. Mgmt., 121 Ga. App. 360, 361 (2) (a) (173 SE2d 744). Appellant’s second and third enumerations of error are without merit.

4. Appellant asserts that the trial court “erred and abused its discretion in entering an amended judgment, ex parte, purporting to award both ex contractu damages and ex delicto damages after having granted appellee’s motion for directed verdict which could only have been granted with respect to liquidated, ex contractu damages.”

(a) At the onset, we note that this court cannot consider factual representations contained in appellate briefs when such evidence does not appear on the record. Behar v. Aero Med Intl., 185 Ga. App. 845, 847 (366 SE2d 223).

The record fails to establish that the trial court entered an amended judgment, ex parte. In the resolution of this issue, we cannot consider the documents attached to the appellee’s brief, because a brief or attachments thereto cannot be used to add evidence to the record. Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 SE2d 33).

Appellant cites this court to the judgment at page 394 of the trial record, as evidence that appellee presented the court with the typewritten order on an ex parte basis and thereby deprived appellant of his opportunity to object or to raise various issues on appeal in support of this enumeration of error. The judgment on its face does not establish any of the assertions contained in the enumerations of error, particularly the assertion that damages both ex contractu and ex delicto were being awarded. Rather, the judgment reflects that there was a prior judgment entered upon verdict which failed to reflect that appellee did “after the verdict, and upon the presentation of the original . . . judgment, elect [as a remedy] to recover upon the fraud claim in accordance with the jury verdict.” (Emphasis supplied.) Moreover, in the absence of a showing that the procedure caused specific prejudice to an appellant, an election of remedies that occurs even after judgment is rendered will not result in reversible error. See All Risk Ins. Agency v. Belk, 191 Ga. App. 576 (1) (382 SE2d 361).

Appellant refers to a certain handwritten judgment in his brief that is not contained in the record. Suffice it to say it is the appellant’s responsibility to prove both harm and error (Baker v. Baker, 194 Ga. App. 477, 480 (390 SE2d 892)), and we cannot presume error from the absence of the original judgment in the record.

(b) Appellant asserts numerous matters in its brief which are not reasonably contained within this or any other enumeration of error. These matters will not be considered on appeal. “An enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration. . . . One cannot expand the scope of review or supply additional issues through a process of switching, shifting, and mending your hold.” (Citations and punctuation omitted.) City of College Park v. Ga. Power Co., 188 Ga. App. 223, 224 (372 SE2d 493).

(c) Appellant’s fourth enumeration unequivocally asserts at least two separate and distinct errors. First, appellant has asserted that the amended judgment was entered ex parte. This error we have addressed above. Secondly, he asserts the judgment purports to be an award of both ex contractu damages and ex delicto damages when appellee’s motion for directed verdict could only have been granted with respect to liquidated ex contractu damages. This court has long recognized that OCGA § 5-6-40 requires that an enumeration of errors “shall set out separately each error relied upon.” The unauthorized practice of lumping more than one assertion of error within a single enumeration creates a fair risk that ambiguity, misdirection, or confusion as to the errors asserted will occur, thereby giving rise to an increased likelihood of generating inadvertent appellate error. Such practice also may result in unnecessary appellate delay. Therefore for the purpose of protecting our judgments on appellate review (see generally Ga. Const., Art. VI, Sec. I, Par. IV) this court, in the exercise of our sound discretion, may elect to review any one or more of the several assertions of error contained within a single enumeration and to treat the remaining assertions of error therein as abandoned.

Pursuant to Ga. Const., Art. VI, Sec. I, Par. IV and OCGA § 5-6-40, we elect to treat all enumerations of error contained in appellant’s fourth enumeration of error as abandoned, except for the ex parte judgment issue above addressed.

In any event appellant’s assertion in this enumeration that the motion for directed verdict could only have been granted properly with respect to liquidated ex contractu damages in this instance also is without merit. Appellee’s complaint averred in its tort count that “[p]laintiff has been damaged in the amount of $983.70, together with interest at one and one-half percent per month from July 30, 1981 until paid.” This amount of damage averred in the ex delicto claim is identical to the indebtedness averred under the ex contractu claim in the complaint. Moreover, appellee testified as to the amount of the initial bill and the pertinent interest rate, and that the bill had not been paid. Appellant made an admission at trial that he knew of “no reason why [the bill] should not have been paid.” A claim is liquidated when it is for an amount certain and fixed. Arora v. Thakrar, 187 Ga. App. 170 (369 SE2d 524); Cobb & Eldridge, Ga. Law of Damages (2d ed.), § 5-1. Appellant’s liability was not in issue because the sanctions imposed against him resulted in default. The trial court directed a verdict for appellee for $4,295.41 principal and interest and $8,803 attorney fees. “A directed verdict is demanded when there is no conflict in the evidence as to any material issue and a particular verdict is demanded as a matter of law.” St. Paul Fire &c. Ins. Co. v. Ga. Interstate Elec. Co., 187 Ga. App. 579 (370 SE2d 829). “Where the amount of damages recoverable appears from the undisputed evidence to be certain, it is proper for the court to direct the verdict.” Cobb & Eldridge, supra at § 11-31. We are satisfied in view of the evidence of record and the effect of appellant’s default that the trial court did not err in directing a verdict for appellee as above indicated.

Further, the $4,295.41 amount was not limited in application to the ex contractu claim. It may be inferred from the wording of the directed verdict and the conduct of the parties that the $4,295.41 amount represented an award applicable to both the indebtedness under the ex contractu claim and to the damages under the ex delicto claim. Assuming arguendo, the directed verdict was ambiguous and susceptible of two constructions, one of which would uphold the judgment of the trial court and one which would not, that construction which would uphold both the verdict and judgment is to be applied. See Department of Transp. v. Hillside Motors, supra at 640; Haughton v. Judsen, 116 Ga. App. 308, 310 (157 SE2d 297). It is clear from their conduct at trial that the parties and court considered the $4,295.41 principal and interest award contained in the directed verdict to apply to both the ex contractu and the ex delicto claims. Particularly, following the granting of directed verdict, the trial court inquired whether the only issue to be sent to the jury would be that of punitive damages, and appellant responded: “That’s correct.” Inherent in this response is the contention that all other issues were resolved. A party cannot subsequently complain of a judgment that his own conduct aided in causing. Rush v. Southern Prop. &c., supra.

Decided September 10, 1990.

Theodore L. Marcus, for appellant.

Richard A. Gordon, for appellee.

Marvin P. Nodvin, pro se.

5. Appellant asserts that the trial court erred in entering a judgment on an excessive verdict for punitive damages for $72,000 when the amount of punitive damages sought in the complaint was $25,000.

Appellant cites several cases which hold that a default judgment may not exceed the amount prayed for in the demand for judgment. This is, of course, a correct statement of law. OCGA § 9-11-54 (c) (1). In this instance, however, the record conclusively reflects that appellee’s amended complaint expressly prayed for punitive damages “in the amount of not less than $25,000.00.” (Emphasis supplied.) Accordingly, the amount of punitive damages awarded did not exceed the amount prayed for by appellee, and appellant’s enumeration of error is without merit.

Moreover, we find the award of punitive damages in light of the evidence of record, which included volunteered testimony by appellant regarding an escrow established on behalf of appellee from appellant’s recent sale of 159 acres of land at $15,000 an acre with “one-third” down and the balance due within the next two years, was not so excessive as to “ ‘shock the judicial conscience,’ ” and allow this court to set aside the award. Hospital Auth. of Gwinnett County v. Jones, 259 Ga. 759, 766 (386 SE2d 120).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A90A1278.
    BRONNER BROTHERS MANUFACTURING, INC. et al. v. RUSSELL et al.
    (397 SE2d 172)
   Birdsong, Judge.

Bronner Brothers Manufacturing, Inc. et al. appeal the jury verdict awarding plaintiffs Ray Russell and E.C. Culpepper, Inc., $22,500 for sales commissions, and attorney fees, in Russell’s breach of employment contract suit. In eight enumerations of error, appellants Bronner Brothers complain that the pertinent commissions provision in the contract was ambiguous, and thus parol evidence should have been allowed to explain the intended meaning of the provision and the circumstances surrounding its execution, and the jury should have been charged the law regarding construction of ambiguous contracts against the drawer. Held:

Appellants’ enumerations of error are argued in concert, involving as they do the same bone of contention; and, we will answer in like form.

The provisions at issue state that in addition to $25,000 salary, Russell was “to be paid thusly: 3% on all orders personally generated by [Russell]; 2% on all orders generated other than personally initiated, by [Russell] not to exceed $25,000 during fiscal year of agreement.” (Emphasis supplied.)

Appellant Bronner insists the provision allowing 2 percent on “all orders generated other than personally initiated by [Russell]” is thoroughly ambiguous, and that in addition to allowing extraneous exploration, the trial court should have allowed a comma to be inserted following the word “personally.” The provision would thus read: “2% on all orders generated other than personally, initiated by [Russell].” We agree with the trial court that to insert a comma in that spot, in addition to arbitrarily rewriting the contract, would create nonsense, and make ambiguous what was not.

The contract provision is not ambiguous. It clearly means that Russell was to get 3 percent on all orders personally initiated by him, and 2 percent on all orders other than those personally initiated by him, up to the maximum allowed for commissions. Evidently this latter phrase results in Russell getting 2 percent of all orders generated by the company, regardless whether he had anything to do with initiating them. This construction is what Bronner Brothers finds offensive, and we concede it is not a brilliant specimen of draftsmanship, but it is not clearly ambiguous and Bronner Brothers has failed to point out what harm has been done by it. It is undisputed on appeal that Russell’s commissions were not to exceed $25,000, because the company would not pay more than $50,000 compensation total (salary and commission). But, the award given by the jury is well within this $25,000 limit on commissions, and appellant Bronner has failed utterly to show that a particular lesser commission would have resulted if some other construction were allowed.

In fact, Bronner Brothers has failed to impress upon the court what other construction it would insert in the place of what is there. Bronner Brothers suggests only that “the only logical conclusion to be drawn from the contract provision in question is that the parties did not intend to enter into an agreement whose effect would be to pay Russell a straight salary of $50,000.” We can concede this is true, and that the provision as stated did not result in Russell’s being paid more than $50,000. At least appellants have not shown that it did, nor have they suggested what amount he would have been paid if some other unnamed construction was made of the provision.

If there were anything ambiguous about the provision, appellants have not suggested an unambiguous interpretation. Moreover, Bernard Bronner was permitted to explain that the parties intended Russell to get 2 percent only of those orders he initiated, when the account was then taken over and served by another salesman. A jury charge instructing the jury to construe ambiguous provisions against the maker (allegedly Russell) would have accomplished nothing, because this provision is not ambiguous, and there is no other unambiguous construction to consider. As to ambiguity of contract provisions generally, see Building Assoc. v. Crider, 141 Ga. App. 825 (234 SE2d 666). Since the provision was not ambiguous, parol evidence was not admissible to vary its terms. See Quigley v. Jones, 255 Ga. 33 (334 SE2d 664); Isaacson v. Carbo, 176 Ga. App. 514 (336 SE2d 373); Redfearn v. C & S Nat. Bank, 122 Ga. App. 282 (176 SE2d 627). We find no error in the trial court’s handling of this case.

Decided September 10, 1990.

Vaughan & Murphy, Clifford E. Hardwick IV, for appellants.

William R. Parker, for appellees.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1327.
    JONES v. BURLINGTON INDUSTRIES, INC.
    (397 SE2d 174)
   Birdsong, Judge.

Appellant Jones appeals the order of the trial court granting appellee Burlington Industries’ motion notwithstanding the verdict, and setting aside the jury verdict in favor of appellant/defendant and entering judgment for the appellee/plaintiff.

Appellee brought suit against appellant on an unpaid account. The pertinent facts, inter alia, are as follows. In mid-1986, appellant was doing business under the name RBJ Textiles and was not then incorporated. Appellant sought a line of credit from appellee. In the time frame of August or September 1986, appellant sent appellee a financial statement. Appellant made an admission in open court that the statement was a personal financial statement, although it apparently listed only personal business assets therein. The financial statement was prepared under the name “Ronnie B. Jones d/b/a RBJ Textiles,” and appellee initially opened the account for appellant under this particular name. On September 10, 1986, November 21,1986, and February 18, 1987, certain letters of credit were issued to appellee by the Fidelity Savings Bank on behalf of appellant, under the name of “Ronnie B. Jones D/B/A RBJ Textiles.” On September 12, 1986, an agent of appellee noted the change of the name of appellant’s account to “Ronnie B. Jones, Inc. D/B/A — RBJ Textiles,” with certain notations, including a notation that this is “how the Letter of Credit was opened up.” In all subsequent billings and invoices of the account by appellee, the account was thereafter treated as “Ronnie B. Jones, Inc., d/b/a RBJ Textile(s),” except one credit memorandum of December 14, 1987, reflects a sale to “Ronnie B. Jones, DBA RBJ Textile.” Appellant wrote several checks to appellee payable on account. The fronts of these checks are imprinted “RBJ Textiles” and are signed with appellant Ronnie Jones’ signature; appellant made an in-court admission that the signature card for this checking account, although bearing the notation of a “corporate account,” listed the account as “Jones, Ronnie or Brenda Jones d/b/a RBJ Textiles,” and contained two authorized signatures including appellant Jones’ signature as “owner.” In January 1987, appellee attempted to obtain a written personal guarantee from appellant Jones and his wife, but they apparently refused to execute such a document. Appellant’s purchase of goods from appellee between April and June, 1987, is the subject of this suit on unpaid account.

The evidence of record is uncontradicted that no corporation ever was in existence under the name of “RBJ Textiles, Inc.,” “Ronnie B. Jones, Inc.,” “Ronnie B. Jones, Incorporated,” “RBJ, Inc.,” or “RBJ Textiles.” However, effective March 2, 1987, appellant did obtain a certificate of incorporation for “RONJON, Inc.,” apparently after appellant was unsuccessful in incorporating under the name “RBJ Textiles.” At some point in time after RONJON was incorporated, appellant registered “RBJ Textiles” as a “trade name” for RONJON. (T 67-68). Appellant admitted in open court that he never mentioned to appellee that he was acting as an agent for RONJON, Inc., or that RONJON, Inc., was incorporated. Appellant’s counsel further admitted in judicio that “Mr. Jones has testified . . . that he never told [appellee] that RONJON, Inc. existed,” and that “we don’t dispute that.” Held:

1. The standards for granting a directed verdict or a judgment notwithstanding the verdict are the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable inferences therefrom, shall demand a particular verdict, such verdict shall be directed. OCGA § 9-11-50. Thus, in reviewing grant of a directed verdict or a judgment notwithstanding the verdict, we must decide whether all the evidence demanded it, or whether there was some evidence supporting the verdict of the jury. Where the jury has ruled, this court must view the evidence in the light most favorable to the party who secured the jury verdict. Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554); accord United Fed. Savings &c. Assn. v. Connell, 166 Ga. App. 329 (1) (304 SE2d 131).

2. In granting appellee’s motion notwithstanding the verdict, the trial court found the case of Don Swann Sales Corp. v. Echols, 160 Ga. App. 539 (287 SE2d 577) to be controlling in regard to appellant’s assertion of corporation by estoppel, as set forth in former OCGA § 14-5-4, and concluded for reasons expressly stated that “[t]he application of the doctrine of corporation by estoppel would be inequitable in the instant case. . . .” (Note: this case does not involve an interpretation of the 1988 Georgia Business Corporation Code, which became effective on July 1, 1989.)

The appellant, relying primarily upon Goodwyne v. Moore, 170 Ga. App. 305 (316 SE2d 601), asserts that the doctrine of corporation by estoppel is in issue in the case sub judice, and that the trial court erred in granting appellee a judgment notwithstanding the verdict.

Appellee in essence asserts that the critical date for examining this issue is the late summer of 1986 when it extended the line of credit to appellant, and at which time there was in existence no corporation whatsoever. Conversely, appellant argues that the critical date is between April and June 1987, when all sales for which appellee was suing on account were effected, and at which time RON JON was duly incorporated. We find that the controlling date is the date when the line of credit was “originally extended” (cf. Associated Distributors v. Westphal, 125 Ga. App. 271 (187 SE2d 322)), and that there was no corporation “claiming a charter under color of law” in existence at the time the account was opened and the line of credit obtained, within the meaning of OCGA § 14-5-4. The doctrine of corporate estoppel historically has been accorded a relatively limited application in this state. See generally Cahoon v. Ward, 231 Ga. 872 (204 SE2d 622); 39 Emory L. J. 523, 574-580, An Empirical Study of Defective Incorporation (Spring 1990). Further, “this court has held in no uncertain terms that the doctrine [of corporation by estoppel or estoppel by corporation] does not permit an individual to escape liability for obligations undertaken as an agent for a corporation which has not yet been ‘registered’ [i.e., issued a certificate of incorporation] by the Secretary of State.” Video Power v. First Cap. Income Prop., 188 Ga. App. 691, 692 (1) (373 SE2d 855); accord Don Swann, supra; compare Echols v. Vienna Sausage Mfg. Co., 162 Ga. App. 158 (290 SE2d 484). One who assumes to act as agent for a non-existent principal or for a principal having no legal status renders himself individually liable in contracts so made. Don Swann, supra at 541. “All persons who assume to act as a corporation before the Secretary of State has issued the certificate of incorporation . . . shall be jointly and severally liable for all debts and liabilities incurred or arising as a result thereof.” (Emphasis supplied.) OCGA § 14-2-23, repealed eff. July 1, 1989; compare OCGA § 14-2-204, eff. July 1, 1989.

Appellant argues that he should not be penalized for dealing with appellee through use of the registered trade name of RBJ Textiles, and that a mere misnomer of a corporation is not of material consequences if the identity of the corporation intended is clear or can be ascertained by proof. At the outset we note that RONJON, Inc., was not in existence until long after the line of credit had been established. Obviously, appellant’s dealings with appellee under the name of RBJ Textiles or RBJ Textiles, Inc., before RONJON, Inc., had been issued its certificate of incorporation could not have been accomplished as a registered trade name or trade style of RONJON, Inc. Moreover, the record in this case fails to disclose any evidence as to the date that appellant registered its trade name or the nature of that registration. Accordingly, accepting that RBJ Textiles at some point became a registered trade name of RONJON, Inc., appellant has failed to establish that a corporate trade name was registered at any time relevant to this suit. Nor do we believe that a misnomer occurred in this case at any point in time. Unlike the situation in Robinson v. Reward Ceramic &c., 120 Ga. App. 380 (170 SE2d 724), the variance in the names used in dealing with appellee and the actual name of the subsequently created corporation, RONJON, Inc., was not clerical in nature and was a substantial variance in name content. In fact, the names of RBJ Textiles, Inc., and RBJ Textile(s) on their face appear to be completely separate legal entities from that of RONJON, Inc. Compare Robinson, supra at 381. Thus, the use of the names RBJ Textiles, Inc., and RBJ Textile(s), particularly in light of appellant’s admissions that he never informed appellee of the incorporation or existence of RONJON, Inc., did not place appellee on notice that it was, at any point in time, dealing with the RONJON, Inc., “as a corporation” within the meaning of OCGA § 14-5-4. Nor is there any evidence of any written or express oral agreement with plaintiff that RONJON, Inc., would be substituted as the legal entity to assume liability for the indebtedness on account. Compare Carnes v. Mobley’s Tire &c., 134 Ga. App. 913 (216 SE2d 703).

Further, appellee had no duty to search the public records in an attempt to discover whether any of the names being used by appellant were or were not registered trade names. As a general rule, “ ‘where an agent wishes to avoid personal liability, the duty is on him to disclose his agency, and not on the party with whom he deals to discover it.’ ” Clonts v. Associated Distributors, 132 Ga. App. 558, 559 (2) (208 SE2d 570). We find no reason to depart from this general rule in this case; particularly, as even if appellee had searched the public records it could not have discovered the registration of the corporate trade name until such registration occurred, and the evidence of record fails to establish this date. Additionally, we find that the use of the names RBJ Textile(s) and RBJ Textiles, Inc., by appellant, before such time as such name was legally registered as a trade name of RONJON, Inc., would have been only as a fictitious or as a personal business trade name. “ ‘ “An undertaking by an individual in a fictitious or trade name is the obligation of the individual.” ’ ” Pinson v. Hartsfield &c. Commerce Center, 191 Ga. App. 459, 461 (382 SE2d 136), citing Hawkins v. Turner, 166 Ga. App. 50, 51-2 (303 SE2d 164).

Decided September 10, 1990.

Minor, Bell & Neal, Rick L. Brown, Sara-Ellen Midkiff, for appellant.

John H. Watson, for appellee.

Goodwyne, supra, and Pinson, supra, are factually distinguishable from this case and are not dispositive of the issue before us. The trial court did not err in relying on the precedent of Don Swann, supra (as at the time the line of credit was extended there was in existence no valid corporate entity), and in granting appellee’s motion notwithstanding the verdict. Don Swann, supra; Echols, supra at 160. Finally, assuming arguendo, that a valid corporation had been in existence at the critical point of this venture, nevertheless, we agree with the trial judge that the application of the doctrine of estoppel would be inequitable in this case. Appellant failed to come before the trial court with clean hands by its failure to reveal the subsequent existence of RONJON, Inc., and by its utilization of the benefit of dealing with appellee under the other various names shown by the record, none of which was a valid corporation or corporation existing under color of law. In such circumstances, appellant is not entitled to the benefits of equity by utilizing the doctrine of corporation by estoppel to escape personal liability. Cf. Murawski v. Roland Well &c., 188 Ga. App. 760, 765 (374 SE2d 207).

Appellant’s enumerations of error and assertions in support thereof also are without merit.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Pope, Judge.

text:
    A89A0811.
    GRESHAM v. ATLANTA GAS LIGHT COMPANY.
    (397 SE2d 632)
   Pope, Judge.

In Atlanta Gas Light Co. v. Gresham, 260 Ga. 391 (394 SE2d 345) (1990), the Supreme Court reversed the judgment of this court in Gresham v. Atlanta Gas Light Co., 193 Ga. App. 841 (389 SE2d 502) (1989). Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.

Decided September 11, 1990.

Chesnut & Livingston, Tom Pye, for appellant.

Fain, Major & Wiley, Charles A. Wiley, Jr., Robert M. Nesselroth, Paula M. Rafferty, Long, Aldridge & Norman, James J. Thomas II, John L. Watkins, for appellee.


author: Beasley, Judge.

text:
    A90A0882.
    McCARTHY v. THE STATE.
    (397 SE2d 178)
   Beasley, Judge.

McCarthy was acquitted of violation of the Georgia Controlled Substances Act by selling cocaine and convicted of possessing cocaine with intent to distribute, OCGA § 16-13-30 (b). His motion for new trial was denied.

The evidence is construed so as to uphold the verdict. Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985). Sikes, a Drug Enforcement Administration (DEA) informant, called Jones, whom he had known for approximately one to one-and-a-half years, to arrange to purchase one-half ounce of cocaine. When Jones received the call from Sikes, he called McCarthy. Jones “knew at some point in time that, . . . [McCarthy] would be able to get some between now and the time that [Jones] saw Sikes again.” McCarthy arranged to go to Jones’ apartment the next day, and Jones told Sikes to come to his apartment.

Sikes, a DEA agent, and a surveillance team went to Jones’ apartment. Sikes was searched before leaving the DEA office and rode with the agent. Sikes went to Jones’ apartment but was told to wait outside because the drugs had not arrived. About five minutes later, Sikes and the DEA agent knocked again at Jones’ door and Jones allowed them in. Shortly thereafter, McCarthy arrived.

Sikes and the DEA agent remained downstairs while Jones and McCarthy went upstairs. McCarthy pulled a plastic bag containing cocaine out of his pocket and showed it to Jones, who called Sikes and told him to bring the money. The DEA agent gave the $1,000 to Sikes, Sikes went upstairs and produced the money, and McCarthy produced the cocaine.

1. Appellant contends the evidence was insufficient to convict him of possessing cocaine with intent to distribute inasmuch as the jury found him not guilty of selling cocaine.

The State’s evidence was not consistent about who actually received the money from Sikes, i.e., whether it was given to Jones or to appellant. However, its evidence was consistent as to appellant being the supplier of the cocaine. The jury could have believed that appellant possessed the cocaine with the intent to distribute it beyond a reasonable doubt but that the evidence fell short of proving that appellant was a direct actor in the money-drugs exchange, i.e., the sale. The verdict of not guilty of the sale is not inconsistent with the finding of guilt as to possession with intent to distribute.

The evidence was legally sufficient to convict appellant of possession with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Relying on State v. Estevez, 232 Ga. 316 (206 SE2d 475) (1974) and Sullivan v. State, 178 Ga. App. 769 (344 SE2d 737) (1986), appellant contends that he could not be convicted and sentenced for possession with intent to distribute because the facts alleged by the State encompassed only one transaction, the sale of cocaine.

Estevez, however, discussed the difference between the procedural bar and the substantive bar of double jeopardy, neither of which comes into play here. In fact, the Supreme Court in Estevez expressly rejected what is essentially appellant’s argument by concluding, inter alia, that “[a]n accused may be prosecuted for each crime arising from the same conduct. The proscription is that he may not be convicted of more than one crime if one crime is included in the other.” Id. at 320 (2).

Sullivan is inapposite. In that case the defendant was improperly convicted of both the unlawful possession of marijuana with the intent to distribute and the sale of marijuana even though the same evidence needed to convict for possession with intent to distribute was included within the evidence of the sale of the drugs.

3. Appellant enumerates as error that the State was permitted to place his character in issue, which is proscribed by OCGA § 24-9-20 (b).

There was evidence that prior to the drug transaction, Jones and appellant had known each other because Jones had played in appellant’s band. Appellant’s defense was that he had been a victim of circumstance because at the time of the drug deal with Sikes he was at Jones’ apartment merely to pay Jones $50 for an earlier musical performance and had no part whatsoever in the drug transaction.

The State called co-defendant Jones, who had already pleaded guilty and was not on trial, as a witness. Jones was relating his version of what happened after the drug-money exchange: “From the previous date that I played with [McCarthy], [McCarthy] gave me $50, and I don’t know if the $50 were — either — either way, [McCarthy] gave me $50, for either the favor or [McCarthy] gave me $50 for playing. Either/or, I received $50.” The State then asked Jones, “Would it be fair to say that the defendant was your supplier?” Jones began to respond “no.” Defense counsel objected on the ground that the State was leading the witness and the State withdrew the question. The State asked Jones what his relationship had been with McCarthy in regard to the cocaine — whether it had been a one-time-only thing or whether Jones had had such dealings with McCarthy in the past. Jones responded that he had had prior dealings with McCarthy.

Assuming nonwaiver of appellant’s present argument despite lack of objection at trial, the objected-to testimony was not inadmissible on the basis urged. “ ‘Evidence relevant to an issue in the case is not rendered inadmissible because it may incidentally impugn the character of an accused where character is not otherwise in issue.’ [Cit.]” Ledesma v. State, 251 Ga. 885, 888 (5) (a) (311 SE2d 427) (1984). See also Smith v. State, 181 Ga. App. 136, 137 (1) (351 SE2d 530) (1986); Lawrence v. State, 174 Ga. App. 788, 790 (7) (331 SE2d 600) (1985); Thomas v. State, 156 Ga. App. 286, 287 (1) (274 SE2d 684) (1980).

Jones’ and McCarthy’s prior relationship in regard to any cocaine dealings was directly relevant to the question of the credibility of Jones’ version of the events on trial.

4. Appellant contends that he was denied his Sixth Amendment right to effective assistance of counsel because retained trial counsel’s performance was deficient to the point of prejudicing appellant and depriving him of a fair trial. No assertion under the State Constitution is made.

Appellant’s claim was heard by the trial court on the motion for new trial. Trial counsel testified and the court concluded that even though there were some things that trial counsel could have handled differently, counsel’s representation did not amount to ineffective assistance of counsel.

“Under the holding in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), there is a two-pronged test for determining the validity of a claim of ineffective assistance of counsel: whether (1) counsel’s performance was deficient; and whether (2) this deficiency prejudiced the defense. . . . Brogdon v. State, 255 Ga. 64, 68 (335 SE2d 383) (1985). In Strickland at 466 U. S. 686, the court approved a ‘reasonably effective assistance’ standard which had already been adopted in Pitts v. Glass, 231 Ga. 638 (203 SE2d 515) (1974). Thus, ‘(t)he reasonableness of counsel’s performance is then considered in light of the totality of the circumstances, viewed from counsel’s perspective at the time of trial, thereby eliminating the possible distortions of hindsight analysis. (Cit.) The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.’ Brogdon at 68. As to deficient performance, errors in judgment and tactical errors do not constitute denial of effective assistance of counsel. Cherry v. State, 178 Ga. App. 483, 484 (2) (343 SE2d 510) (1986).” Thompson v. State, 188 Ga. App. 508, 509 (373 SE2d 292) (1988).

Decided September 11, 1990.

Thomas, Kennedy, Sampson, Edwards & Slayton, Paul L. Howard, Jr., for appellant.

Robert E. Wilson, District Attorney, Desiree L. Sutton, Assistant District Attorney, for appellee.

Many of what appellant lists as trial errors by counsel involve points of law already addressed and determined adversely to appellant. See Divisions 1, 2, and 3, supra. Counsel’s stipulation of nonuse of a tape recording obtained in the surveillance is not constitutionally infirm assistance of counsel inasmuch as there is no showing that the tape was relevant to the determination of guilt or innocence, much less that it was favorable to defendant. Claims based on error in the court’s jury charge, including an alleged Sandstrom violation, are without merit.

Therefore, the trial court did not err in concluding that appellant did not suffer federally prohibited ineffective assistance of counsel at trial.

5. For the reasons discussed above, the trial court did not err in denying appellant’s motion for new trial.

Judgment affirmed.

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


text:
    A90A0987.
    JONES v. THE STATE.
    (397 SE2d 181)
   Beasley, Judge.

Defendant enumerates two errors in his conviction of trafficking in cocaine, OCGA § 16-13-31: 1) denial of his motion for mistrial following introduction of his statement, which he contends should have been furnished in compliance with his motion for production under OCGA § 17-7-210; 2) exclusion from evidence of a statement made by his deceased brother, a co-defendant.

Defendant, as driver, and his brother, as passenger, were stopped for weaving on the road while traveling on 1-95. Before citing defendant for improper lane change, the patrolman asked where he had been. Defendant responded that he had visited his sick father in Miami. Defendant’s brother gave a different version. The patrolman issued the citation and requested permission to search the vehicle. Defendant signed a consent to search form. Cocaine was found, and defendant and his brother were arrested, fingerprinted and booked. During an interview by the police chief, defendant’s brother said a duffle bag containing part of the cocaine was given to him by someone in Miami and that he had used it to keep dirty clothes, but that he knew nothing about any other contents. The brother died prior to trial.

Decided September 11, 1990.

Jack E. Carney, Jr., for appellant.

Dupont K. Cheney, District Attorney, David C. Walker, Assistant District Attorney, for appellee.

1. Under OCGA § 17-7-210 (a) defendant is entitled to a copy of any statement given by him while in police custody. Roadside questioning after a routine traffic stop does not constitute a custodial situation. Lebrun v. State, 255 Ga. 406, 407 (3) (339 SE2d 227) (1986); Crum v. State, 194 Ga. App. 271, 272 (390 SE2d 295) (1990); Conley v. State, 181 Ga. App. 375, 376 (2) (352 SE2d 394) (1986); Wilson v. State, 173 Ga. App. 805, 806 (1) (328 SE2d 418) (1985). Because defendant was not in custody, but was merely temporarily detained, the State was not required to furnish defendant’s statement concerning the purpose of the trip. Compare Hughes v. State, 259 Ga. 227 (378 SE2d 853) (1989).

2. Declarations made by a person since deceased against his interest and not made with a view to pending litigation are admissible. OCGA § 24-3-8. Defendant’s brother had been fingerprinted and booked. His statement, made with a view to litigation within the meaning of the Code section, was inadmissible. Crowder v. State, 237 Ga. 141, 154 (227 SE2d 230) (1976).

Judgment affirmed.

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


text:
    A90A1022.
    COLLIER v. DEPARTMENT OF HUMAN RESOURCES et al.
    (397 SE2d 632)
   Beasley, Judge.

We granted Collier discretionary appeal from the superior court’s reversal of an award by the Office of Fair Employment Practices. After a hearing by a Special Master, the Office held the Department of Human Resources, Georgia Regional Hospital, liable for racial discrimination against Collier, in violation of the Georgia Fair Employment Practices Act of 1978, OCGA § 45-19-29. The superior court reversed that decision on the ground that it was based on erroneous application of the law to the facts, and the substantial rights of the Department of Human Resources had thus been prejudiced. The court did not further elucidate the basis for reversal. See OCGA § 45-19-39 (b). We granted review to ascertain the legal basis for reversal. After full consideration, we find the appeal to have been improvidently granted inasmuch as no error of law in the lower court’s ruling appears in the record. The employee failed to make out a prima facie case of either disparate treatment or disparate impact. The appeal is dismissed.

Decided September 11, 1990.

John W. Lawson, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Kathryn L. Allen, Senior Assistant Attorneys General, for appellees.

Appeal dismissed.

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


author: Sognier, Judge.

text:
    A90A1047.
    WALDEN v. THE STATE.
    (397 SE2d 182)
   Sognier, Judge.

Johnny Levon Walden was tried with two co-defendants and convicted of trafficking in cocaine. He appeals from the denial of his motion for new trial.

1. Appellant contends the trial court erred by failing to give his requested charge on the rebuttable presumption that contraband found in a vehicle belongs to the owner and driver, which embodied his sole defense. We agree and reverse.

The evidence established that on June 12, 1988, appellant rode from Florida to Georgia with co-defendants Carl Trimble and Vincent White, the latter of whom is appellant’s nephew, in White’s car. White drove part of the way and then allowed Trimble to drive. Appellant sat in the back seat during the entire trip and was asleep when the travellers were stopped by former Glennville Police Sergeant Freddie Stewart. All three were charged with cocaine trafficking. At trial Stewart testified that he observed White asleep in the front passenger seat with a clear package containing what proved to be cocaine resting on his chest. Additional cocaine was found in an overnight bag belonging- to White that was on the rear floorboard between appellant and White. Appellant stated at trial and in a statement he gave police shortly after his arrest that the cocaine did not belong to him and he had not been aware it was in the car.

“It is the law of this state that where there is only one defense on which a party relies, failure to instruct the jury as to the evidence supporting this defense with sufficient clarity and specificity that the jury will not only be required to pass upon it, but do so intelligently, in practicality directs a verdict against the defendant, in that the effeet of the failure to charge is to withdraw and deny the defense and to that extent prejudices a defendant’s right to a fair and impartial trial. [Cits.]” Dinnan v. State, 173 Ga. App. 191, 195 (325 SE2d 851) (1984). Here, appellant’s sole defense was that he was a mere passenger in the car, see Cochran v. State, 190 Ga. App. 884, 885 (380 SE2d 319) (1989), and was in neither actual nor constructive possession of the cocaine. Consequently, a full and complete charge on the law concerning possession was necessary, which required, at a minimum, that the jury be informed of the elements of actual and constructive possession and the rebuttable presumption that all items found inside a vehicle belong to the owner and/or driver. See Payne v. State, 162 Ga. App. 739, 740 (2) (293 SE2d 29) (1982). Although the trial court gave an adequate instruction as to actual and constructive possession, appellant’s requested charge on the rebuttable presumption was not given. We hold that this failure to charge appellant’s sole defense was harmful error and requires reversal of his conviction. Dinnan, supra at 196 (1); Bryan v. State, 157 Ga. App. 635, 636 (3) (278 SE2d 177) (1981).

Decided September 11, 1990.

Dubberly & McGovern, B. Daniel Dubberly III, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

We note that appellant’s charge request was not a complete statement of the law because it did not include the caveat that the presumption of ownership may be rebutted by evidence either that the owner and driver was not in possession of the car for a period of time prior to discovery of the contraband or that others had access to the vehicle. See Prickett v. State, 155 Ga. App. 668, 669 (1) (272 SE2d 534) (1980). While that incompleteness does not change our conclusion that the jury should have been instructed on this issue, as the charge on appellant’s sole defense was required even absent any request from appellant, Harris v. State, 145 Ga. App. 675 (244 SE2d 620) (1978), on retrial the lower court should give a complete statement of this principle.

2. As a result of our decision in Division 1, we need not address appellant’s enumeration concerning the denial of his motion to sever because that ruling will not recur on retrial.

Judgment reversed.

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


text:
    A90A1082.
    THE STATE v. ROBERTS.
    (397 SE2d 183)
   Sognier, Judge.

The State appeals from the trial court’s grant of Robert James Roberts’ motion to suppress evidence seized during a warrantless search of his person.

At the hearing on appellee’s motion the State presented Jimmy Terrell, Chief of Police for the City of Winder, who testified that around 10:00 p.m. on March 24, 1989, he was escorting a city councilman on a patrol of East Winder in Barrow County, in an area known by the police as the locus for a large number of illegal drug transactions. Terrell was driving an unmarked police car and wearing civilian clothes except for the police badge on his windbreaker. Terrell pulled into a parking lot reserved for the residents of a nearby public housing apartment complex, which was across the street from a game-room/bar run by the American Legion. Terrell stated he saw appellee with another man standing in a parking space between two cars. As he pulled into the lot, Terrell noticed that the man with appellee looked over his shoulder and immediately turned and walked quickly toward the apartments. Terrell stated that appellee looked up, then immediately got into a car with a Walton County tag. As appellee was entering his car, Terrell pulled up behind the car, walked to the driver’s door, and identified himself as a police officer. Terrell testified that appellee had not closed the car door at the time he approached. Terrell asked for identification and asked appellee if he knew he was in an unauthorized parking area. Appellee responded that he did not see the signs indicating “Authorized Parking Only,” and after Terrell asked appellee, “Were you up here dealing cocaine?” appellee told Terrell no, that he was visiting a friend. When appellee got out of the car Terrell noticed a chain hanging out from under appellee’s sweatshirt and inquired about it. When appellee said it was a wallet, Terrell testified that he said, “May I see it?” and that appellee pulled it out from under his shirt and handed it to Terrell. Terrell then opened the wallet and in the compartment where bills were kept observed three rocks, subsequently found to be cocaine. He also observed three small brown manila envelopes commonly known in the drug trade as “nickel bags” for marijuana. Terrell then arrested appellee. When asked by the prosecutor why he initiated the conversation with appellee, Terrell listed the other man’s swift departure, appellee’s nervousness when Terrell approached him, the large number of drug transactions that occurred in that area, and the out of county tag on appellee’s car.

On cross-examination Terrell stated that the police had an agreement with the housing authority to patrol the parking areas and remove vehicles of those not visiting or living in the apartments. He acknowledged that he parked his unmarked police car so as to block appellee’s car, even though there were empty parking spaces he could have used instead. He also acknowledged that appellee’s statement that he was visiting a friend was an “acceptable excuse” for appellee’s presence in the lot. He testified that because of an earlier experience in which a party had placed a weapon on a chain similar to the one appellee was wearing, when appellee told him the chain held a wallet he asked to see the wallet. However, upon being shown the wallet, Terrell said he knew it was not a weapon and that he did not open it on the belief it might contain a weapon. Rather, he testified that when appellee handed him the wallet at Terrell’s request, he “felt like [he] had the right to open it” and look into it at that point.

Appellee testified that he came to Winder to visit a friend, Sammy Harris, who lived in the area, that they had visited the bar across the street, and that after talking a few minutes in the parking lot Harris was preparing to leave when Terrell pulled into the parking lot. Harris testified confirming appellee’s testimony and stated he left the lot swiftly because he knew Terrell and did not want to get arrested for public drunkenness. Appellee testified that as Terrell was pulling into the lot he got into his car and had it in reverse when his exit was blocked by Terrell’s car. Appellee stated he kept his driver’s license and proof of insurance attached to his car’s sun visor and handed over these documents when Terrell approached him. He stated he informed Terrell that it was Harris he was visiting and denied giving Terrell his wallet, testifying that Terrell took it from him by pulling on the chain at his waist.

The trial court noted that the only conceivable criminal activity evidenced by Terrell’s initial observation of appellee was the possible illegal parking of the car, and found that Terrell’s stop and investigation of appellee did not appear to be linked to a suspicion of illegal parking. The trial court further found that Terrell’s search of appellee did not appear to be related to any suspicion of the illegal parking violation for which appellee was stopped. Considering all the circumstances adduced at the hearing, the trial court found that the State had not established by a preponderance of the evidence that appellee voluntarily consented to the search of his wallet, and that no reasonable cause for appellee’s arrest existed when the search was made.

The State argues that the trial court’s grant of appellee’s motion to suppress was error, contending that this case is controlled by our recent opinion in State v. Billoups, 191 Ga. App. 834 (383 SE2d 198) (1989). In Billoups an officer in a marked patrol car turned a corner in a high drug area at 2:30 a.m. and noticed two men break and run at the sight of the patrol car. The officer pursued the defendant on foot and, upon apprehending the defendant, conducted a patdown search and discovered a film cannister in the defendant’s pocket, which the officer searched based on past experiences that such cannisters were often used to contain razor blades, but was found by the officer at that time to contain contraband. Pointing to the time, the location, and the defendant’s flight from the officer, we reversed the trial court’s grant of the defendant’s motion to suppress the evidence seized by the officer. Those facts are in marked contrast to the case at bar where at 10:30 p.m. appellee was found standing in a parking lot across the street from a gameroom/bar, a location where people are likely to congregate at that time of night; no evidence was adduced he knew the unmarked car that pulled into the lot contained a police officer; the officer testified that the driver’s side door was still open when he approached the vehicle; and the officer admitted that his search of appellee’s wallet was not based on any belief that it contained a weapon. Accordingly, we do not agree with the State that Billoups is controlling here.

Decided September 11, 1990.

Timothy G. Madison, District Attorney, Brenda Joy Bernstein, Assistant District Attorney, for appellant.

Strauss & Walker, John T. Strauss, for appellee.

The State also asserts that the evidence clearly shows that appellee consented to the search. However, it is well established that factual and credibility determinations made by a trial judge after a suppression hearing must be accepted by appellate courts unless such determinations are clearly erroneous. State v. Wingo, 191 Ga. App. 539, 541 (382 SE2d 384) (1989). There was evidence to support the trial court’s finding that Chief Terrell acted without suspicion of criminal activity on appellee’s part when he searched appellee’s wallet and that appellee did not voluntarily consent to that search. Hence, we may not disturb the trial court’s ruling on appellee’s motion. Id.

Judgment affirmed.

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


text:
    A90A1116.
    SHARP v. THE STATE.
    (397 SE2d 186)
   Beasley, Judge.

Defendant was convicted of armed robbery. OCGA § 16-8-41 (a).

1. He first enumerates that he was erroneously deprived of a directed verdict.

Viewed in favor of the verdict, the evidence showed that defendant and co-defendant Isham were visiting the Marshall apartment when Ms. Parker, age 14, called Isham around midnight for his girl friend’s phone number. Isham asked her to order two pizzas and twelve soft drinks and have them delivered to vacant apartment 3115-A. Shortly thereafter, defendant, carrying an aluminum baseball bat, and Isham, carrying a toy Uzi, left Marshall’s apartment.

The pizza delivery man was leaving the vacant apartment when he was ordered to place the food and his money on top of his car. He identified Isham as the man with the gun. When he arrived, he saw a second man sitting nearby. Although he could not make an identification, he did describe clothing, which matched defendant’s. The delivery man was told to walk away after leaving the pizzas and $30. As he was doing so, the second man ran up behind him and swung a metal object at him.

Defendant and Isham returned to the apartment, Isham with a pizza and the gun, and defendant with the bat and approximately $30, which he showed to those present. One of the occupants took defendant and Isham to get beer. When they returned and saw police, defendant asked to be let out of the car and left.

The evidence was sufficient to withstand the motion for directed verdict Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436) (1984); Lobdell v. State, 256 Ga. 769, 773 (7) (353 SE2d 799) (1987); Castillo v. State, 166 Ga. App. 817, 819 (305 SE2d 629) (1983).

2. Defendant moved for a new trial. One ground was Isham’s post-trial statement that someone other than defendant was the robber.

Isham gave two statements to the police which contended that defendant was the robber with the gun and that he merely watched. He then wrote a letter to the district attorney, claiming he knew the robbery was being planned, but did not participate. At trial he testified in his own defense and disclaimed any knowledge of the entire incident, contending that he was babysitting that evening. In mid-trial, he pled guilty to robbery and testified again, claiming he and defendant committed the robbery, but he was the one with the bat and defendant stuck the toy gun in the man’s back.

On the motion for new trial, Isham said all his previous statements were lies, that in fact a third individual had committed the robbery and neither he nor defendant participated although he, Isham, had known it was going to occur.

“The law is settled that a post-trial declaration by a State’s witness [including a co-defendant] that his former testimony was false is not a ground for a new trial.” Drake v. State, 248 Ga. 891, 894 (1) (287 SE2d 180) (1982). Moore v. State, 254 Ga. 525, 531 (4) (330 SE2d 717) (1985). There was no error in refusing to accept Isham’s latest version of the incident as casting a doubt on the correctness of the verdict and constituting a mandate for a new trial.

Decided September 11, 1990.

John D. McCord III, John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, John H. Petrey, Assistant District Attorneys, for appellee.

3. Isham’s first two' statements were redacted, with defendant’s acquiescence, to remove any reference to defendant by name. They were introduced during the State’s case. Isham then chose to testify in his own defense and was cross-examined, identifying defendant as his accomplice. Defendant moved for a mistrial, contending that introducing the redacted statement and then Isham’s testifying led the jury to believe something had been hidden from them and was prejudicial to defendant.

To the degree that the motion and enumeration as briefed contend that the process was “prejudicial” to defendant, they are too vague to present a question for determination. Sultenfuss v. State, 185 Ga. App. 47, 49 (4) (363 SE2d 337) (1987). To the degree that they raised a right to confrontation or fair trial based on denial of a mid-trial request to sever, these issues have been determined adversely to defendant. OCGA § 17-8-4; Depree v. State, 246 Ga. 240, 242 (1) (271 SE2d 155) (1980).

4. Finally, defendant alleges that the failure of the court to give his requested jury charge cautioning that a police officer’s testimony should not be given undue weight due to his position was error. It was an opposite paraphrase of the charge ruled erroneous in Faust v. State, 222 Ga. 27, 28 (1) (148 SE2d 430) (1966). But see Vasquez v. State, 182 Ga. App. 850, 851 (2) (357 SE2d 302) (1987). The court gave the Suggested Pattern Jury Instruction on credibility of witnesses which alone would have sufficed. Whiteley v. State, 188 Ga. App. 129, 132 (4) (372 SE2d 296) (1988). The court also instructed that a “person’s” position should not give greater force to testimony, simply generalizing defendant’s requested charge, which had targeted the police officer. There was no error.

Judgment affirmed.

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


text:
    A90A1214.
    UNITED STATES FIDELITY & GUARANTY COMPANY v. SAYLER MARINE CORPORATION.
    (397 SE2d 188)
   Pope, Judge.

Plaintiff is the liability insurance carrier for Ring Power Corporation. Ring leased a tractor to defendant Sayler Marine Corporation. An employee of Sayler Marine was injured while using the leased tractor and filed a negligence action against Ring. Plaintiff, on behalf of its insured, settled the claim in exchange for a release agreement from the injured employee and his wife. Plaintiff filed this action against Sayler Marine seeking indemnity for all sums paid in the settlement, plus attorney fees expended in defending the negligence action, pursuant to the indemnity clause in the lease between plaintiffs insured and Sayler Marine. The trial court granted Sayler Marine’s motion for summary judgment and plaintiff appeals.

Decided September 11, 1990.

Barrow, Sims, Morrow & Lee, A. Mark Lee, for appellant.

Painter, Ratterree, Connolly & Bart, James L. Elliott, for appellee.

In its order, the trial court ruled that although the indemnity clause contained in the lease was not sufficiently specific to require Sayler Marine to indemnify plaintiffs insured for the insured’s sole negligence, it was sufficient to require indemnification for damages resulting from the negligence of both the indemnitor (Sayler Marine) and the indemnitee (the insured). Nevertheless, the trial court ruled that by settling the claim, plaintiff admitted that its insured bore all liability for the injuries alleged in the claim so that, pursuant to the holding in Georgia State Telephone Co. v. Scarboro, 148 Ga. App. 390 (251 SE2d 309) (1978), plaintiff was precluded from seeking indemnity from Sayler Marine.

The reason this court held that the indemnitee in Georgia State Telephone Co. had admitted its sole liability for the claim asserted against it was because it had entered into a consent judgment in the underlying tort action. Here, the indemnitee did not admit liability by settling the underlying tort claim and therefore did not prejudice its right to seek indemnity from its indemnitor. “By the enactment of [OCGA § 51-12-32 (c)] . . . the Legislature has expressly permitted a party to compromise or settle a claim in lieu of a lawsuit or judgment against that party without prejudicing that party’s right to seek indemnity from another.” Ranger Constr. Co. v. Robertshaw Controls Co., 158 Ga. App. 179, 181-182 (279 SE2d 477) (1981). “[T]he right of indemnification is not lost or prejudiced by settlement or compromise of a claim.” Randall v. Norton, 192 Ga. App. 734, 737 (386 SE2d 518) (1989). Thus, the trial court erred in granting Sayler Marine’s motion for summary judgment.

Judgment reversed.

Been, P. J., and Beasley, J., concur.


text:
    A90A1251.
    In the Interest of R. T. D., a child.
    (397 SE2d 189)
   Sognier, Judge.

R. T. D. was adjudged delinquent in the Juvenile Court of Gwinnett County for having committed an act which, had it been committed by an adult, would constitute the offense of rape. See OCGA § 15-11-37 (2) (A). He appeals.

The record reveals that the act occurred on the night of December 1, 1989, when appellant and a friend offered the 15 year old victim a ride outside a pool hall. The victim testified that she had drunk most of a bottle of wine and smoked marijuana and was “pretty messed up.” The victim did not remember much about that night, but did recall waking up at some point in the car with appellant on top of her, attempting intercourse. She also testified that he later threatened her with a gun, and did have intercourse with her in an open field.

Appellant contends the juvenile court erred by allowing into evidence his out-of-court custodial statement, which was obtained outside the presence of his parents or other legal guardian. “In Riley, v. State, 237 Ga. 124, 128 (226 SE2d 922), the Supreme Court rejected a per se exclusionary rule to confessions and incriminating statements given outside the presence of a juvenile’s parents. Thus, the court declined to hold that the taking of a juvenile’s statement without his parents (or guardian) being present would automatically result in prejudicial error. Rather, the court redefined the issue raised as being ‘whether there was a knowing and intelligent (voluntary) waiver of constitutional rights by appellant’; it concluded that the answer depended on the ‘totality of the circumstances’; and, it opined that the ‘state has a heavy burden in showing that the juvenile did understand and waive his rights.’ The court, then adopted the nine-factor test of West v. United States, 399 F2d 467, 469, cert. den. 393 U. S. 1102 to analyze waiver voluntariness. [Cits.] Accordingly, we will analyze the issue before us using the Riley nine-factor test.” In the Interest of L. E. J., 185 Ga. App. 743 (1) (365 SE2d 537) (1988).

(a) and (b) The age of the accused and his education: Appellant was fifteen at the time he gave the statement and had completed eighth grade.

(c) Knowledge of the accused as to both the substance of the charge and the nature of his rights to consult with an attorney and remain silent: Although appellant argues that he is unable to read, and therefore his signature on the waiver of rights form introduced by the State is meaningless, Chief Juvenile Court Investigator Jesse Lawler testified that he and Gwinnett County Police Officer Wayne Rikard were present when appellant gave the custodial statement, and that the standard “Advice of Rights to Juveniles” form, which explains the usual constitutional rights in simple language, was read to appellant in its entirety by Rikard, and that appellant indicated after each portion of it was read that he understood everything.

(d) Whether the accused is held incommunicado or allowed to consult with relatives, friends, or an attorney: It is clear from Lawler’s testimony that appellant was offered the right to have an attorney, and that appellant understood that option but declined. Lawler testified that appellant was never held incommunicado, and was offered the opportunity to have his grandmother (with whom he was living) present, but preferred not to include her. Lending credence to appellant’s apparent refusal of the offer to have his grandmother present is Lawler’s testimony that when appellant was picked up at his home, his grandparents appeared to be hostile to him.

(e) Whether the accused was interrogated before or after formal charges had been filed: The formal complaint was not filed until after the interrogation, but it is clear that appellant was under arrest and in custody when questioned.

(f) Methods used in interrogation: Appellant was interviewed in the Youth Development Center conference room by officials wearing plain clothes, and no weapons were present. Lawler testified that appellant was neither threatened with nor promised anything. A court reporter was present.

(g) Length of interrogation: Appellant’s rights were read to him at 5:45 p.m., the statement began at 6:00 p.m., and was concluded at 6:50 p.m.

(h) Whether the accused gave a statement on any prior occasion: There is no evidence that he did so.

(i) Whether the accused has repudiated an extrajudicial statement at a later date: Appellant never denied making the statement, and testified at trial that he made the statement voluntarily. Although his testimony at trial differed from the statement, he testified that this was because he had earlier lied to the police, or could not remember what he had said earlier.

“The question of whether or not a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted . . . unless such determination is clearly erroneous.” (Citations and punctuation omitted.) J.E.W. v. State, 256 Ga. 464, 467 (349 SE2d 713) (1986). The juvenile court heard testimony encompassing all nine factors, and considering the totality of the circumstances in this case we cannot say that its decision, that appellant made a knowing and intelligent waiver of his right to be questioned in the presence of a relative, was clearly erroneous. Accordingly, we affirm.

Judgment affirmed.

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

Decided September 11, 1990.

Ronnie K. Batchelor, for appellant.

Phyllis Miller, Solicitor, for appellee.


text:
    A90A1369.
    LASTER v. THE STATE.
    (397 SE2d 191)
   Birdsong, Judge.

Appellant, Harold James Laster, appeals his conviction for kidnapping, theft by taking, armed robbery and escape.

After closing the Big Star Grocery, the night manager entered his automobile and thereafter was forced at gunpoint by appellant to drive around the area. The manager was forced to stop the car, and a co-accomplice of appellant got in the front seat. Subsequently, the manager was forced to return and re-enter the grocery store and to open the safe. The perpetrators took about $5,000 from the safe, and departed the area in the manager’s car. Held:

1. Appellant asserts that the trial court erred by overruling his motion for continuance. The record reflects that appellant’s motion for continuance was made on two grounds: “the inability ... to contact counsel” and appellant’s belief that “counsel is not prepared to pursue the case.” Appellant requested that the services of his counsel be terminated, and that another counsel be appointed who would be better prepared for trial. At no point in the tendering of the motion did appellant’s counsel state in his place that he was in fact unprepared to go to trial or that he was unable to adequately represent appellant. Counsel was appointed in October 1983, and trial was held in June 1984. Following appellant’s arraignment, he had met briefly with counsel and “discussed the facts of the case.” Appellant was subsequently transferred from the trial forum area to the State Prison at Reidsville, and it is asserted that appellant did not receive the letter sent to him by his counsel. According to the disclosure of counsel, appellant “has maintained the defense of alibi.”

Counsel for Willie Clarence Mays also filed a motion for continuance, and expressly argued that the motion was not to obtain delay but to “secure any alibi witnesses,” and that under the circumstances of his appointment “it is impossible to adequately prepare the case.” No similar assertions were expressly made by appellant’s counsel. See generally OCGA § 17-8-25.

The record further reflects that following a conversation with Mays’ counsel and because appellant’s counsel had just been appointed, the prosecution “had to continue” the case from October 1983 to February 1984, and that when the case came up in February, “there was another problem that necessitated a continuance.”

Appellant had been back in the county before trial “since one week ago,” and appellant’s attorney had spoken with the prosecutor about the case on “a number of occasions.” Moreover, appellant has not made an adequate showing that he initiated any attempt to contact his attorney at anytime during his incarceration. See generally OCGA § 17-8-20.

At the outset we find that “[w]hile an indigent defendant accused of a crime for which imprisonment is possible is entitled to have reasonably effective counsel provided to assist him, he is not entitled to counsel of his own choosing. [Cit.] A request by an indigent criminal defendant to discharge one court-appointed counsel and have another substituted in his place addresses itself to the sound discretion of the trial court.” Durham v. State, 185 Ga. App. 163, 164 (1) (363 SE2d 607).

“ ‘The refusal of a motion to continue will not be reversed unless it is manifest that there has been an abuse of discretion on the part of the trial judge.’ ” Raines v. State, 186 Ga. App. 239, 240 (1) (366 SE2d 841); see Plemons v. State, 155 Ga. App. 447 (5) (C) (270 SE2d 836); see also Parker v. State, 81 Ga. 332 (2) (6 SE 600). We are satisfied that in this instance the trial court did not breach its discretion either in refusing to discharge appellant’s appointed counsel and to appoint a new counsel or in refusing to grant the requested continuance.

2. Appellant asserts that “[t]he trial court erred in charging the jury as to the issue of conspiracy when no request to charge same was made by the [prosecutor].” But see Brennon v. State, 191 Ga. App. 720 (1) (382 SE2d 682); Thomas v. State, 172 Ga. App. 70 (2) (321 SE2d 808).

Following the charge to the court, the trial court inquired whether counsel had any objections or exceptions to the charges. Both counsel for Mays and the prosecutor replied in the negative. Appellant’s counsel, however, stated, “I have one objection to the [c]harge on the admissibility of the evidence regarding the state of mind or means of modus operandi. That relates back to our previous objection.” (Emphasis supplied.) Appellant’s counsel neither objected to the charge on conspiracy nor elected, in lieu of making objections at that time, to reserve his right to object on motion for new trial or on appeal.

“If the trial court asks whether or not there are any objections to the charge, counsel must either state his objections or reserve his right to object on motion for new trial or on appeal.” (Emphasis supplied.) Pruitt v. State, 258 Ga. 583, 590 (14) (373 SE2d 192). An appellant cannot elect to object at trial to some of the charges and reserve his right to object to additional charges later. When asked if he has any objections by the trial court, appellant either must make all of his objections immediately or else he must reserve his right to object until later. He cannot do both. See Pruitt, supra. In this case, however, appellant made no attempt to reserve his right to object, and he did not make a timely objection to the charge on conspiracy. “In the absence of an objection to the alleged improper charge or reservation of the right to object, the asserted error is waived.” Jones v. State, 181 Ga. App. 651, 654 (2) (353 SE2d 593); compare Slaughter v. State, 257 Ga. 104 (3) (355 SE2d 660).

Decided September 11, 1990.

Mullins & Whalen, Harold A. Sturdivant, for appellant.

W. Fletcher Sams, District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Carley, Chief Judge.

text:
    A89A1091.
    PENDER v. WITCHER.
    (397 SE2d 193)
   Carley, Chief Judge.

In Hightower v. Gen. Motors Corp., 175 Ga. App. 112, 113 (1) (332 SE2d 336) (1985), aff’d on other grounds, 255 Ga. 349 (338 SE2d 426) (1986), a majority of this court held that it was permissible to impeach the general credibility of an adverse witness in a civil case by proving his first offender record for commission of a felony or a crime of moral turpitude. This whole court decision in Hightower was subsequently followed in Hardman v. Hardman, 185 Ga. App. 519, 520 (4) (364 SE2d 645) (1988) and Salomon v. Earp, 190 Ga. App. 405, 407 (379 SE2d 217) (1989) but, in Whidby v. Columbine Carrier, 182 Ga. App. 638 (356 SE2d 709) (1987), it was not. In the original appearance of the instant case before us, we resolved this conflict by holding that the whole court decision in Hightower should be followed and that the decision in Whidby should be overruled. Pender v. Witcher, 194 Ga. App. 72 (2) (389 SE2d 560) (1989). On certiorari, however, the Supreme Court reversed, holding that the first offender record of an adverse witness in a civil case “is not admissible for the purpose of impeaching the witness by showirfg him to have been convicted of [a felony or] a crime involving moral turpitude.” Witcher v. Pender, 260 Ga. 248, 249 (392 SE2d 6) (1990).

Accordingly, our decision in Pender v. Witcher, supra, is hereby vacated and the judgment of the Supreme Court in Witcher v. Pender, supra, is made the judgment of this court. It necessarily follows, therefore, that the decisions of this court in Hightower v. Gen. Motors Corp., supra, Hardman v. Hardman, supra, and Salomon v. Earp, supra, must be overruled to the extent that the holdings thereof are inconsistent with the Supreme Court’s decision in Witcher v. Pender, supra, and that the decision of this court in Whidby v. Columbine Carrier, supra, remains viable authority. Because the trial court in the instant case correctly refused to allow appellant-plaintiff to use appellee-defendant’s first offender record for general impeachment purposes, the judgment is affirmed. “This decision does not affect the holding of Hightower v. General Motors Corp., 255 Ga. 349 ([supra]), that evidence of a first offender record is admissible in a civil trial to impeach an adverse witness by disproving or contradicting his testimony.” Witcher v. Pender, supra at 249.

Decided September 12, 1990.

Davis, Sissel & Williams, Warren P. Davis, for appellant.

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, for appellee.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope, Beasley and Cooper, JJ., concur.


text:
    A90A0972.
    TYUS v. THE STATE.
    (397 SE2d 194)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of forgery in the first degree. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. Appellant was indicted for fraudulently presenting for payment only one of two stolen payroll checks drawn on the account of Dundee Mills, Inc. At trial, the State was permitted to introduce evidence that appellant had presented both stolen payroll checks for payment. Appellant enumerates as error the failure to sustain his objection to the introduction of evidence that he presented for payment any check other than that which had been alleged in the indictment.

“ ‘ “The admissibility of ‘other crime’ evidence is a matter determined by the trial court. (Cit.)” (Cit.) The factors pertinent to a determination of the admissibility of the extrinsic crime are similarity, and relevance to the issues in the trial of the case. (Cits.). . . .’” Mincey v. State, 186 Ga. App. 839, 840 (2) (368 SE2d 796) (1988). The trial court correctly held that the evidence regarding appellant’s presentation of the other check was sufficiently similar so as to be probative of the intent or guilty knowledge that he had when presenting the check alleged in the indictment. See Hayes v. State, 138 Ga. App. 223, 225 (7) (225 SE2d 749) (1976). The jury was instructed that the evidence was being admitted solely for that limited purpose. Accordingly, there was no error in admitting this evidence. Johnson v. State, 158 Ga. App. 183, 184 (1a) (279 SE2d 483) (1981).

Decided September 12, 1990.

Griffin E. Howell III, for appellant.

W. Fletcher Sams, District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

2. Appellant enumerates the general grounds. From all of the evidence adduced by the State, a rational trior of fact could reasonably have found proof of appellant’s guilt of forgery beyond a reasonable doubt. Johnson v. State, supra at 184 (lb).

3. Over objection, the trial court permitted a witness who was not listed on the indictment to testify. This ruling is enumerated as error.

Where “[t]he record . . . does not show that any demand for a list of witnesses was filed prior to arraignment as provided by [OCGA § 17-7-110,] . . . the trial court [does] not err in permitting [an unlisted] witness to testify over objection. [Cits.]” Jackson v. State, 235 Ga. 857-858 (1) (221 SE2d 605) (1976). In the instant case, the trial court was authorized to conclude that, although appellant’s trial counsel had been appointed only a week before, appellant nevertheless had been represented by other counsel at the time of arraignment. Compare Pealor v. State, 165 Ga. App. 387 (1) (299 SE2d 904) (1983). Moreover, in making his objection, appellant did not request a continuance or otherwise seek an opportunity to conduct an interview prior to the witness being called to testify. “Under the foregoing circumstances, it is clear . . . that the admission of the testimony of this witness was not in contravention of OCGA § 17-7-110, or otherwise error. [Cits.]” State v. McBride, 258 Ga. 321, 322 (368 SE2d 758) (1988).

Judgment affirmed.

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


text:
    A90A1133.
    RESPRESS v. THE STATE.
    (397 SE2d 195)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of arson in the first degree. She appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. The trial court’s purported denial of appellant’s right to voir dire the panel of jurors pursuant to OCGA § 15-12-133 is enumerated as error.

The record reflects that, after the trial court had propounded the statutory questions mandated by OCGA § 15-12-164, appellant’s own inquiries regarding the reasonable doubt standard and the presumption of innocence were disallowed. “ ‘[These] questions were of a technical legal nature as they were subjects of the instruction by the court at the conclusion of the trial. They therefore were not a proper area for voir dire examination.’ [Cits.]” Baxter v. State, 254 Ga. 538, 543 (7) (331 SE2d 561) (1985). It follows that the trial court correctly refused to allow appellant to ask these questions. Compare Mitchell v. State, 176 Ga. App. 32, 34 (3) (335 SE2d 150) (1985).

2. Over appellant’s objection, three witnesses for the State whose names first appeared on a supplemental list of witnesses were permitted to testify at trial. Inasmuch as the trial court permitted appellant to interview these witnesses before they testified, “ ‘the purpose of OCGA § 17-7-110 was satisfied, and . . . the trial court properly allowed (the witnesses]) to testify. (Cits.)’ [Cit.]” Boscaino v. State, 186 Ga. App. 133, 134 (3) (366 SE2d 789) (1988).

3. Appellant enumerates as error two instances wherein the trial court failed to sustain objection to allegedly improper remarks made by counsel for the State in her opening statement.

In the first instance, counsel for the State made a reference to a witness who would testify to what he had overheard appellant say at the scene of the crime. Although appellant objected that such testimony would be inadmissible as hearsay, the trial court correctly ruled that any incriminating statement that had been made by appellant herself and overheard by a bystander at the scene of the crime would not be subject to such an objection. Since the incriminating statement had not been made while appellant was in custody and was, not the product of interrogation, the question of whether it was “voluntary” would not be a factor in its admissibility. Therefore, appellant’s “contention that the prosecutor referred to inadmissible evidence must fail. . . .” McMillan v. State, 257 Ga. 173, 175 (7) (356 SE2d 866) (1987).

In the second instance, the trial court did in fact caution counsel for the State and appellant did not renew her objection. Accordingly, there was no error. See generally Sneed v. State, 172 Ga. App. 64, 65 (2) (321 SE2d 799) (1984).

4. “Appellant was not entitled to have a Jackson v. Denno hearing [on her motion to suppress evidence of the statement that she gave after her arrest] conducted prior to trial. [Cit.]” (Emphasis in original.) Parrish v. State, 194 Ga. App. 760, 761 (2) (391 SE2d 797) (1990).

Judgment affirmed.

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

Decided September 12, 1990.

Robert A. Maxwell, for appellant.

Lewis R. Slaton, District Attorney, Nancy A. Grace, Joseph J. Drolet, Rebecca A. Keel, Assistant District Attorneys, for appellee.