author: Smith, Judge.

text:
    A97A1749.
    MORGAN v. THE STATE.
    (496 SE2d 924)
   Smith, Judge.

Azeal Morgan was indicted by a Mitchell County grand jury for the offenses of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b), and operating a vehicle without a driver’s license, OCGA § 40-5-20. A jury found Morgan guilty on both counts, and he appeals from the judgment of conviction and sentence on the possession of cocaine with intent to distribute. We affirm.

1. Morgan asserts the general grounds. Construed in favor of the jury’s verdict, the evidence shows that Morgan and a passenger were driving in the city of Camilla when Morgan failed to stop at an intersection, nearly causing a collision with a police car. The officers performed a traffic stop and then arrested Morgan for failure to have a driver’s license. While searching Morgan incident to his arrest, one of the officers discovered a single-edge razor blade in his pocket. After Morgan was placed under arrest, the same' officer approached Morgan’s vehicle and asked the female passenger to get out of the vehicle so that the other officer could question her. As she got out, she placed a soft drink container and a bag of potato chips on the driver’s seat. After the passenger was questioned, one of the officers shined his flashlight into the driver’s seat and saw a brown pill bottle inside the potato chip bag. The passenger testified at trial that Morgan handed her the bottle as the police stopped their vehicle and asked her to hold it. The bottle contained 17 small off-white chunks of material; a forensic chemist testified that the material was cocaine weighing a total of 2.1 grams.

Morgan suggests that his passenger’s testimony that he handed her the bottle of cocaine was impeached on cross-examination and by the testimony of the police officers. But after the jury’s verdict of guilty Morgan can no longer rely on the presumption of innocence, and this court cannot re-weigh evidence or judge the witnesses’ credibility. We must construe the evidence to uphold the verdict and determine only whether the evidence was sufficient to enable any rational trier of fact to find Morgan guilty of the crime charged beyond a reasonable doubt. Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990). The evidence was clearly sufficient to prove beyond a reasonable doubt that Morgan possessed the cocaine found in the vial.

Mere possession of cocaine, however, will not support a conviction for possession with intent to distribute. Wright v. State, 154 Ga. App. 400, 401-402 (268 SE2d 378) (1980). “We have considered various kinds of additional evidence as proof of intent to distribute, including drug measuring and weighing paraphernalia, the packaging of the contraband, possession of certain amounts or denominations of currency, a prior possession with intent to distribute conviction, and expert testimony that the amount of contraband possessed was consistent with larger amounts usually held for sale rather than for personal use.” (Citations and punctuation omitted.) McNair v. State, 226 Ga. App. 516, 517 (487 SE2d 100) (1997).

While it is correct that mere possession will not support a conviction for possession with intent to distribute, the evidence in this case supports the conviction. First, the arresting officer testified that he found a “straight type razor blade” in Morgan’s shirt pocket, and without objection, he further testified that based on his years of experience, training in drug interdiction, and schools he had attended, such razor blades are “used to cut crack cocaine up into pieces to be sold.” Second, the officer also testified without objection that the circumstances of Morgan’s possession showed an intent to distribute, because the number of “rocks” in the vial was greater than that generally possessed for personal use. See generally Davis v. State, 200 Ga. App. 44, 45 (2) (406 SE2d 555) (1991).

Although the officer was never formally tendered as an expert, the prosecutor laid the foundation for his expert testimony by eliciting testimony regarding the officer’s certification and training in drug interdiction, his “experience working narcotics” and his attendance of “schools” on drug paraphernalia and practices. Moreover, “the defense never objected to the opinions the officer gave based on his experience as a narcotics investigator. This evidence allowed the jury to find [Morgan] possessed the [cocaine] with intent to distribute and exclude the theory that [Morgan] possessed the drug only for his personal use.” (Citations and punctuation omitted.) Maddox v. State, 227 Ga. App. 602, 603 (1) (490 SE2d 174) (1997). See also Bacon v. State, 225 Ga. App. 326 (483 SE2d 894) (1997); Bindley v. State, 225 Ga. App. 338, 340-341 (484 SE2d 33) (1997). Compare McNair v. State, supra (officer not qualified as expert and prosecutor elicited no background information from which jury could infer expertise).

2. Morgan also contends the trial court erred in denying his motion in limine. Morgan’s motion was limited to the use of the term “residue” in describing the condition of the razor blade taken from his pocket; he contended that the use of this word “would imply that the razor blade had something to do with cocaine.” The trial court denied the motion, observing that the condition of the razor blade was part of the circumstances of Morgan’s arrest. At trial, one witness testified, “I often get these razor blades with residue on them. They are used to cut up pieces of crack cocaine.” Before that response was elicited, Morgan objected only on the ground that the witness, a forensic chemist, was not qualified to give expert opinion testimony as to the use of the razor blade. Although Morgan objected only on the basis of the witness’s qualifications, a contemporaneous objection was not required to preserve the issues raised in Morgan’s motion in limine after the motion was denied. Hale v. State, 214 Ga. App. 899, 902 (3) (449 SE2d 520) (1994).

The trial court was correct, however, in its observation that the razor blade itself was found in Morgan’s pocket upon his arrest and thus constituted part of the circumstances of the arrest. “Articles found in the control of the defendant at the time or near the time of arrest are admissible as circumstances connected with the arrest of the defendant. Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. All circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them.” (Citations and punctuation omitted.) Kirk v. State, 210 Ga. App. 440, 443 (1) (436 SE2d 553) (1993). In Kirk, officers were allowed to identify a glass tube found under the defendant’s car seat as a “straight shooter” used to smoke cocaine. This Court concluded that the object itself was admissible as a circumstance surrounding Kirk’s arrest and that the officers’ opinion as to its use was relevant as establishing a motive for the robbery with which Kirk was charged. Id. In this case, the condition of the single-edge razor blade found in Morgan’s pocket is directly relevant to the crime with which he was charged. See Division 1, supra.

Moreover, the motion in limine was based on the theory that the use of the word “residue” would “imply that the razor blade had something to do with cocaine.” Morgan does not enumerate as error the forensic chemist’s explicit testimony that the razor blade was in fact used to cut up cocaine for distribution, and virtually identical testimony by the arresting officer was admitted without objection. It follows that the mention of the “residue” on the razor blade was merely cumulative of other testimony. Maher v. State, 216 Ga. App. 666, 667 (1) (455 SE2d 377) (1995).

Judgment affirmed.

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

Decided February 16, 1998.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Victoria Spear-Darrisaw, Assistant District Attorney, for appellee.

       Morgan did not appeal his conviction for driving without a license.

       But Morgan does not enumerate the issue of the witness’s qualifications as error, and “ ‘[mjatters not enumerated as error will not be considered on appeal.’ ” Smith v. State, 224 Ga. App. 819, 821 (3) (481 SE2d 896) (1997).


source: Caselaw Access Project

license: Public Domain

text:
    A97A1832.
    BLACKWELL v. THE STATE.
    (496 SE2d 922)
   Smith, Judge.

Linton Blackwell appeals from the trial court’s denial of his plea of former jeopardy. We conclude that the trial court correctly denied the plea because neither Blackwell’s Fifth and Fourteenth Amendment rights under the United States Constitution nor his rights under OCGA §§ 16-1-7 (b) and 16-1-8 were violated. We therefore affirm the trial court’s ruling.

Blackwell was arrested in June 1996 when the van he was driving crashed while being pursued by police after a robbery. He was issued a citation at the scene accusing him of fleeing to elude a police officer. OCGA § 40-6-395. In September 1996, Blackwell was indicted by a Fulton County Grand Jury for the offense of robbery. In November 1996, Blackwell pled guilty in the Traffic Court of Atlanta to the misdemeanor fleeing to elude charge, and he was fined $250. He then filed his plea of former jeopardy in the robbery case in the Superior Court of Fulton County in December 1996.

1. Blackwell’s rights under the Fifth and Fourteenth Amendments to the United States Constitution were not violated by the denial of his plea because the Blockburger test was met and his prosecution for robbery therefore did not subject him to double jeopardy. “Under Blockburger [v. United States, 284 U. S. 299 (52 SC 180, 76 LE2d 306) (1932)], successively charged offenses are separate for purposes of double jeopardy only if proof of each offense requires proof of some element or fact which proof of the other does not. [Cit.]” State v. Williams, 214 Ga. App. 701, 702 (448 SE2d 700) (1994).

“A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . (1) [b]y use of force; ... (2) [b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another.” OCGA § 16-8-40 (a). The indictment charged that Blackwell “did unlawfully, with intent to commit theft, by the use of force, take from the person and immediate presence of [the victim], $10,000.00 in money of value, and the property of the said [victim].” The offense of fleeing to elude is committed when the driver of a vehicle willfully fails or refuses to bring the vehicle to a stop or otherwise flees or attempts “to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop.” OCGA § 40-6-395 (a). It is beyond reasonable question that these offenses involve wholly different elements and facts. Blackwell’s actions in fleeing the officers form no part of the State’s proof of his participation in the robbery, and his actions as a party to the crime of robbery are not related to the elements of proof of the crime of fleeing to elude.

2. The Georgia statutes pertaining to double jeopardy similarly offer no protection to Blackwell in this case.

(a) Georgia has codified the procedural aspect of double jeopardy in OCGA § 16-1-7 (b), which prohibits successive prosecutions “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court,” except when crimes are ordered to be tried separately “in the interest of justice.” OCGA § 16-1-7 (c). In Baker v. State, 257 Ga. 567 (361 SE2d 808) (1987), the Supreme Court recognized the difficulties inherent in adopting a “constructive knowledge” test and declined to adopt it. Id. at 568. The protection afforded Blackwell under OCGA § 16-1-7 (b) therefore extends only to crimes “ ‘actually known to the prosecuting officer actually handling the proceedings’ ” in traffic court. (Emphasis supplied.) Id. at 568-569. Here, the trial court correctly determined that Blackwell had presented no evidence that the traffic court solicitor knew about the robbery indictment at the time Blackwell’s guilty plea was entered.

As best we can understand Blackwell’s argument, he maintains that the traffic court solicitor must have known of the robbery because OCGA § 40-6-395 (b) (5) (A) refers to fleeing from a police officer in an attempt to escape arrest for a felony offense and the police report referred to Blackwell as fleeing from a robbery. This argument is flawed in several respects. First, knowledge of the police officers is not imputed to the prosecutor. Anderson v. State, 200 Ga. App. 530, 532 (408 SE2d 829) (1991). Second, Blackwell was not prosecuted under OCGA § 40-6-395 (b) (5) (A) but under OCGA § 40-6-395 (a). The offense defined in OCGA § 40-6-395 (b) (5) (A) is a felony, which could not have been prosecuted in traffic court. OCGA § 16-1-7 (b) offers Blackwell no protection under these circumstances.

(b) The applicable portion of OCGA § 16-1-8 (b) provides that “[a] prosecution is barred if the accused was formerly prosecuted for a different crime ... if such former prosecution: (1) [rjesulted in either a conviction or an acquittal and the subsequent prosecution is for a crime of which the accused could have been convicted on the former prosecution, is for a crime with which the accused should have been charged on the former prosecution . . ., or is for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution.” In this case, we have already determined that each prosecution requires proof of facts “not required on the other prosecution.” Moreover, Blackwell could not have been prosecuted in traffic court for the felony charge of robbery. OCGA § 16-1-8 (b) therefore offers Blackwell no protection from prosecution for robbery. The trial court did not err. in denying Blackwell’s plea of former jeopardy.

Decided February 16, 1998

Walter M. Henritze, Jr., for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: POPE, Presiding Judge.

text:
    A97A2494.
    THE STATE v. FISCHER.
    (497 SE2d 79)
   POPE, Presiding Judge.

The State appeals from the trial court’s grant of Cheryl Fischer’s motion to suppress evidence, which was improperly designated as a motion in limine, in this DUI case. We affirm.

During the hearing on Fischer’s motion, the only witness called to testify was Officer Kotkiewicz. The State never requested or indicated that it desired a continuance to produce additional witnesses. Kotkiewicz’s testimony demonstrated that Fischer was stopped by Officer Vaughn at a roadblock conducted by Vaughn, Kotkiewicz and other uniformed members of the Lawrenceville Police Department DUI Task Force. The stated purpose for the roadblock was to check for motorists’ drivers licenses and proof of insurance.

After obtaining Fischer’s license and insurance card, the validity of both of which is not disputed, Vaughn decided to implement a secondary detention of Fischer by asking her to pull over and stop in a parking lot adjacent to the roadblock. Complying with Vaughn’s request, Fischer pulled her car past Officer Kotkiewicz and into the parking lot, where she stopped. In doing so, she did nothing out of the ordinary to draw Kotkiewicz’s attention to her, and it is undisputed that Kotkiewicz had not previously observed Fischer.

After Fischer’s secondary detainment by Vaughn, Vaughn asked Kotkiewicz to talk to Fischer and handed Kotkiewicz Fischer’s license and insurance card. At that time, Vaughn told Kotkiewicz that he had smelled alcohol. Several minutes later, Kotkiewicz spoke to Fischer. Based on his conversation with Fischer, and his observations of her during that conversation and during Fischer’s performance of several field sobriety tests, Kotkiewicz arrested Fischer for DUI. He then transported her to the police station, where Fischer registered above the legal limit on two separate breath tests.

In her motion to suppress, Fischer moved to suppress all evidence gathered after her secondary detention by Vaughn on the ground that Vaughn had no articulable suspicion to justify that detention. In granting the motion, the trial court ruled that the State had failed to produce evidence which would support a finding of articulable suspicion on Vaughn’s part in secondarily detaining Fischer after her initial stop at the roadblock. Based on the evidence presented during the hearing on Fischer’s motion to suppress, we agree.

“This court’s responsibility in reviewing the trial court’s decision on a motion to suppress [evidence allegedly obtained pursuant to an illegal seizure] is to ensure that there was a substantial basis for the decision.” (Citation and punctuation omitted.) State v. Goodman, 220 Ga. App. 169, 170-171 (2) (469 SE2d 327) (1996). Upon such review, we note that in order for a police officer at a roadblock to institute a secondary detention or seizure, the officer must have, at that time, a reasonable and articulable suspicion of criminal conduct. State v. Golden, 171 Ga. App. 27, 30 (3) (318 SE2d 693) (1984). And during a hearing on a motion to suppress evidence obtained pursuant to an alleged illegal seizure, the State has the burden of establishing that the detention or seizure was not illegal. State v. Holler, 224 Ga. App. 66, 69 (2) (479 SE2d 780) (1996). In this case, the State clearly failed to meet its burden.

While it is true that the State introduced testimony from Kotkiewicz that Vaughn had implemented Fischer’s secondary detention because he had smelled alcohol, in ruling on Fischer’s motion, the trial court properly determined that such testimony constituted hearsay in light of the purpose for which it was offered. See OCGA § 24-3-1 (a). The motion hearing transcript shows that upon Fischer’s hearsay objection to the abovementioned testimony, the State offered the testimony only for the purpose of explaining Kotkiewicz’s conduct in approaching Fischer, and the trial court allowed the testimony solely for that purpose. As the trial court later determined, however, Kotkiewicz’s conduct in approaching Fischer was not relevant to the determination of whether Vaughn had articulable suspicion for secondarily detaining Fischer because that detainment had occurred prior to Kotkiewicz’s involvement in the matter. Accordingly, Vaughn’s statement to Kotkiewicz was not admissible probative evidence of articulable suspicion on Vaughn’s part under the “explanation of conduct” exception to the hearsay rule found in OCGA § 24-3-2. See Teague v. State, 252 Ga. 534-537 (1) (314 SE2d 910) (1984); Arnold v. State, 228 Ga. App. 137, 139-140 (2) (491 SE2d 205) (1997). The State’s failure to even argue that Vaughn’s statement might be admissible under some other exception to the hearsay rule, constitutes a waiver for purposes of this appeal. Shropshire v. State, 223 Ga. App. 118, 119 (2) (476 SE2d 859) (1996).

Decided February 16, 1998.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Allison L. Thatcher, Assistant Solicitors, for appellant.

Robert W. Chestney, for appellee.

The State’s reliance on State v. Wright, 221 Ga. App. 202, 204-206 (3) (470 SE2d 916) (1996), in support of its contention that the trial court erred in failing to consider the collective knowledge of both Vaughn and Kotkiewicz in determining whether articulable suspicion existed for Fischer’s secondary detention, is misplaced. Application of the “collective knowledge” rule has been limited in this State to factual situations where the collective knowledge of law enforcement officers has been relayed to and used by officers actually making or implementing a detention or seizure. Id.; Burgeson v. State, 267 Ga. 102 (475 SE2d 580) (1996). In the case at bar, there is no evidence of any collective knowledge information being relayed to Vaughn prior to his secondary detention of Fischer, which is the detention at issue.

In light of the above authority and the admissible testimony and evidence set forth during the motion hearing, we conclude that the trial court had a substantial basis for granting Fischer’s motion to suppress all evidence seized pursuant to her secondary detention.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A97A2501.
    JAMES v. THE STATE.
    (497 SE2d 389)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of armed robbery. The evidence adduced at trial reveals that defendant entered a Waycross, Georgia convenience store, retrieved some merchandise and then forced the store’s clerk to give him the contents of the cash register. The store’s clerk testified at trial that defendant committed the crime. A video surveillance camera recorded the armed robbery. This recording was displayed to the jury. Defendant filed this appeal after the trial court denied his motion for new trial. Held:

Defendant contends the State improperly injected proof that he exercised his right to remain silent after arrest.

“The Supreme Court of Georgia has held that ‘to reverse a conviction the evidence of the defendant’s election to remain silent must point directly at the substance of defendant’s defense or otherwise substantially prejudice the defendant in the eyes of the jury.’ Smith v. State, 244 Ga. 814, 816 (262 SE2d 116) (1979). The analysis in Smith rests on Doyle v. Ohio, 426 U. S. 610 (96 SC 2240, 49 LE2d 91) (1976). Thus, ‘not every comment directed toward a defendant’s silence will result in an automatic reversal. (Cit.)’ Morris v. State, 167 Ga. App. 351, 352 (1) (306 SE2d 409) (1983).” Newton v. State, 226 Ga. App. 501, 502 (1) (486 SE2d 715). In the case sub judice, defendant claims such prejudice based on the following excerpt from the State’s attorney’s direct examination of Officer Lawrence Ethridge of the Way-cross Police Department: “[STATE’S ATTORNEY:] Okay. Once [defendant] was placed under arrest, did you advise [him] of his rights? A. I did, but [defendant] stated to me he wasn’t the one; he wanted a lawyer. That was the end of the conversation.” This testimony, while injecting the fact that defendant invoked his constitutional rights, does not attack the substance of defendant’s sole defense — misidentification. Defendant, nonetheless, argues that Ethridge’s improper testimony and questions by the State’s attorney (following the trial court’s instruction for Ethridge not to mention that defendant had invoked his right to remain silent) substantially prejudiced him in the eyes of the jury.

After Ethridge’s testimony that defendant stopped talking and invoked his right to an attorney, defense counsel objected and moved for a mistrial. The trial court responded by instructing Ethridge not to mention that defendant had invoked his right to remain silent and by denying defendant’s motion for mistrial. The following then transpired: “[STATE’S ATTORNEY:] Now, Detective Ethridge, you indicated to us before we broke that [defendant] did not wish to speak with you; is that correct? A. Yes, sir. Q. Okay. Was he transported to the jail? A. This was done at the jail, sir. Q. What? A. This was done at the jail, sir. He was transported to the jail, yes, sir. Q. All right. Now, did you initiate any more conversation with [defendant]? A. No, sir. Q. Did he initiate any conversation with you? A. No, sir. Q. Detective Ethridge, I direct your attention to the second page of your supplement, if you would look at that. A. Yes, sir. Go ahead. Q. Now, Detective Ethridge, after referring to your report, let me re-ask the question. Did [defendant] ever talk to you any more about this incident? A. This was done during the conversation. He stated that he stayed at the Almar Hotel that particular night of the robbery. Q. So the Defendant told you he was at the Almar Motel [sic]? A. Yes, sir. Q. Okay. Did he tell you anything else? A. He just couldn’t remember the room, he stated to me. He stated he did go to the hotel and [gave] the key to the clerk.”

While we disapprove of the State’s attorney’s questions which appear to violate the trial court instruction for Ethridge not to mention defendant’s silence after arrest, we find no basis for review because defense counsel did not object when the State’s attorney questioned Ethridge about defendant’s silence. See Newton v. State, 226 Ga. App. 501, 502 (1), supra. Moreover, in light of overwhelming evidence of defendant’s guilt, we find it highly unlikely that injection of any improper evidence regarding defendant’s post-arrest silence substantially prejudiced defendant in the eyes of the jury. See Shelton v. State, 220 Ga. App. 163, 164 (2), 165 (469 SE2d 298).

The trial court did not err in denying defendant’s motion for new trial.

Judgment affirmed.

Beasley and Smith, JJ., concur specially.

Beasley, Judge,

concurring specially.

I concur for the reason that the testimony objected to did not require a mistrial, but I do not agree that all of the testimony quoted in the majority opinion constituted comment on James’ right to remain silent. Nor do I agree that all of the State’s questions quoted in the majority opinion violated the court’s instruction to the witness.

There are two instances in the officer’s testimony which James contends constituted impermissible comment on his invocation of the right to remain silent. The only one objected to at trial was the second portion of James’ reaction to the officer’s advising defendant of his rights after he arrested him. James’ reaction was to deny he was the robber, which is not an invocation of his right to remain silent, and to say he wanted a lawyer, which infers that he did not want to talk further, at least then. This latter statement is prohibited from introduction because the rule is that “[e]vidence as to silence on the part of the defendant at the time of his arrest should be excluded when objected to, for he is then entitled to remain silent, and the prosecution may not use against him the fact that he stood mute or claimed his privilege. (Cit.)” Reid v. State, 129 Ga. App. 660, 664 (5) (200 SE2d 456) (1973). See Doyle v. Ohio, 426 U. S. 610 (96 SC 2240, 49 LE2d 91) (1976).

The second instance complained of occurred when the State resumed examining the officer after the court had ruled on the mistrial motion out of the presence of the jury. The State picked up where it had left off and asked whether it was correct that James did not wish to speak with the officer, to which question the officer responded affirmatively. That brought to the jury’s attention quite directly James’ reliance on his constitutional right. But defendant did not object, ask for curative instructions, move to strike that question and answer, or seek a mistrial. So the possible issue was not preserved for appellate review. Wilson v. State, 259 Ga. 55, 57 (4) (376 SE2d 676) (1989); Brewer v. State, 219 Ga. App. 16, 19 (4) (463 SE2d 906) (1995). The trial court is not required to take action sua sponte when such evidence emerges. Newton v. State, 226 Ga. App. 501, 502 (1) (486 SE2d 715) (1997).

The testimony that followed constituted evidence of information volunteered by James about his whereabouts on the night of the robbery, not comment on his right to remain silent. So it is outside the target area. “[A] defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent; as to the subject matter of his statements, the defendant has not remained silent at all. [Cits.]” Nichols v. State, 210 Ga. App. 134, 138 (6) (435 SE2d 502) (1993).

In the context of the enumeration of error, then, the only question properly before us is whether the trial court was required by law to declare a mistrial because the officer impermissibly testified that James stated “he wanted a lawyer.” This invocation of his constitutional right to counsel, viewed as inherently including reliance on the right to remain silent, “‘did not point directly at the substance of [James’] defense or otherwise substantially prejudice [him] in the eyes of the jury.’ ” Newton v. State, supra.

And as stated in Smith v. State, 244 Ga. 814, 815-816 (1) (262 SE2d 116) (1979), “[e]very comment directed toward a defendant’s silence will not be cause for an automatic reversal. . . . [T]he bare introduction of evidence regarding the silence of an accused” is not always error. The real issue is whether the remark “had produced a trial which was fundamentally unfair so as to deny appellant due process.” Id. at 815. Considering the nature of the remark, its context, the whole body of evidence and the absence of a request that the remark be stricken and the jury instructed to disregard it, I agree that it did not “substantially prejudice the defendant in the eyes of the jury.” Id. at 816. Like the situation in the Smith case, “the harm to defendant as illustrated in Doyle v. Ohio ... is not present here.” Id. at 816. Similar to the facts in this case is Duck v. State, 250 Ga. 592, 594 (1) (300 SE2d 121) (1983), where it was held that the evidence that the arrestee asked to contact his lawyer did not violate the defendant’s Fifth Amendment rights.

Nevertheless, the State is obligated to strictly abide by constitutional mandates and to vigilantly avoid incursions on citizens’ rights which are aimed at securing a fair trial. It is bound to prepare its witnesses accordingly. Law enforcement officers have the same duty of diligence. Our courts have not yet deemed it necessary to impose a mistrial whenever a breach of this type occurs, but that does not lessen the importance of affording full respect to rights which the state and federal constitutions guarantee. The guarantees depend for their efficacy on adherence by the State and its law enforcement officers, failing which the courts must intervene.

Decided February 17, 1998.

John D. Staggs, for appellant.

Richard E. Currie, District Attorney, Alexander J. Markowich, Assistant District Attorney, for appellee.

My third departure from the majority opinion is that I do not find this to be a case of “overwhelming evidence of defendant’s guilt.” Several of defendant’s witnesses who had viewed the videotape testified that the robber was not James but another identified person, and one witness testified he had been in the store so close in time that he was pictured on the videotape and that James, whom he knew, was not there. This diametrically opposed evidence is enough to.prevent the State’s inculpatory evidence from being “overwhelming.” Moreover, the videotape is not in the record and we have not seen James, so we cannot say there is no reasonable doubt he is the person whose image was captured on film.

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


author: Ruffin, Judge. BIRDSONG, Presiding Judge, Eldridge, Judge,

text:
    A97A2587.
    WILBURN v. THE STATE.
    (497 SE2d 380)
   Ruffin, Judge.

A jury found Freddie Lee Wilburn guilty of selling cocaine in violation of the Georgia Controlled Substances Act. Wilburn appeals, contending that the trial court erred in denying his motion to suppress evidence and seating jurors he attempted to strike. For reasons which follow, we affirm.

1. Wilburn asserts that the trial court erred in denying his motion to suppress evidence that he possessed marijuana when he was arrested. We disagree. In our review of the trial court’s order denying Wilburn’s motion to suppress, we construe the evidence most favorably to uphold the court’s ruling. Mao v. State, 222 Ga. App. 482, 483 (474 SE2d 679) (1996). It is the trial court’s duty to resolve conflicts in the evidence, and its findings of credibility and fact will not be disturbed on appeal unless they are clearly erroneous. Id.

Viewed in this light, the record shows that a warrant was issued for Wilburn’s arrest on July 9,1995. The warrant was based on a July 7, 1995 purchase of $20 of crack cocaine from Wilburn by undercover officer Joseph Walker of the Austell Police Department. After the purchase, Walker identified Wilburn in police photographs. The following evening Walker again purchased cocaine from Wilburn. During this second purchase, Walker gave Wilburn $20 for more cocaine. Before Wilburn left to obtain the cocaine, however, Walker told Wilburn that he wanted some assurance that Wilburn would return with the cocaine or his money. In response, Wilburn gave Walker an identification card that contained Wilburn’s photograph and full name.

Wilburn was subsequently arrested during the early morning hours of August 13, 1995. At 12:30 a.m., Walker was in uniform patrolling in a marked police car with another officer. Walker testified that he noticed a car speeding toward him with one headlight and that they turned on their blue lights and initiated a traffic stop. When Walker approached the car on foot, he observed four individuals inside, one of which was Wilburn. Walker testified that because he still had undercover investigations pending in the area which he did not want to jeopardize, he withdrew from the scene, went back to the police car and called for backup. According to Walker, after the four occupants exited the vehicle, “the driver was found to be DUI.” The other occupants were questioned by police officers. When it was determined that the vehicle would be impounded, the other occupants were moved “a safe distance” away, and Walker searched the car. During his search he found a bag of suspected marijuana where Wilburn was sitting. After being asked by the officers who the bag belonged to, Wilburn stated that it was his. Wilburn was then placed under arrest for possession of marijuana and pursuant to the arrest warrant, for selling cocaine. It is undisputed that at the time of the traffic stop all the officers involved knew there was an outstanding warrant for Wilburn’s arrest.

Wilburn moved to have evidence that he possessed marijuana suppressed on the ground that he admitted ownership of the bag during a custodial interrogation, but before he was read his rights pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). He claims that because there was an outstanding arrest warrant of which the police officers were aware, they should have informed him of his rights immediately upon stopping the vehicle. We disagree.

Similar circumstances were presented to this Court in Quinn v. State, 209 Ga. App. 480 (2) (433 SE2d 592) (1993). In Quinn, the arresting officer obtained an arrest warrant and went to defendant’s house to arrest him. Before he arrested the defendant, the officer questioned him about a gun used in a shooting and asked the defendant if he owned such a weapon. The defendant responded that he did and retrieved the gun for the officer. The defendant was thereafter arrested. We observed that under Miranda, custodial interrogations “mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Punctuation omitted.) Id. at 481. Citing Ingle v. State, 123 Ga. App. 56 (179 SE2d 305) (1970), we concluded that “[t]his is not the sort of in-custody interrogation forbidden by the Miranda case without prior warning to the defendant, regardless of whether the peace officer, who had not arrested the defendant at that point, would have done so if he had attempted to leave the scene.” (Punctuation omitted.) Id. at 482. “ ‘[T]he issue of custody involves an objective standard: Would a reasonable person in the defendant’s situation have believed that he was physically deprived of his freedom of action in any significant way? If not, he is not subject to the compulsive atmosphere of an actual arrest, and Miranda does not apply. [Cits.]’ [Cit.]” Id.

In this case, we find that a reasonable person in Wilburn’s place would not have believed that his freedom was curtailed in a significant way when he was asked who owned the bag of marijuana. The questioning took place during what was otherwise a fairly routine traffic stop, and Wilburn, who was not the driver, was not the subject of that investigation. Moreover, the question regarding the marijuana was directed to all the passengers, not just Wilburn. Finally, there was absolutely no evidence showing that Wilburn knew there was a warrant for his arrest or that he was even the subject of an undercover investigation. Under these circumstances, we do not find that the trial court’s denial of Wilburn’s motion was clearly erroneous. See id.; Mao, supra.

2. We also find no merit in Wilburn’s assertion that the trial court erred in seating on the jury two veniremen he attempted to strike. The transcript shows that during jury selection, the State objected to Wilburn’s peremptory strikes against juror numbers 22 and 23, both white, on the ground that the strikes were racially motivated. Wilburn, an African-American, was represented by counsel who volunteered his reasons for striking the two veniremen. Wilburn’s counsel explained that he struck juror number 22 because during voir dire the juror stated that he had been a burglary victim, that he had prior jury experience and that he lived in the same area of Cobb County as Wilburn and might be familiar with some of the witnesses in the case. The trial judge did not expressly rule on the racial neutrality of the explanation, but rather asked the State for a response. The assistant district attorney countered that juror number 22 specifically stated that he was not familiar with any witnesses and that Wilburn did not strike an African-American juror who was also a burglary victim. Wilburn’s counsel explained that he struck juror number 23 because the juror stated that he had previously served as a jury foreman and because, other than fishing, he had virtually no interests outside the home and “like[d] to watch the cop shows on TV. . . .” The trial court again did not rule on the racial neutrality of the explanation but allowed the State to respond. The assistant district attorney stated that the strike must have been racially motivated because Wilburn accepted another juror who complained about the number of times that she served on a jury and also accepted other jurors who had few interests outside the home. The trial court reseated both jurors following the State’s response to each of Wilburn’s explanations.

We note initially that in Georgia, v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992), the United States Supreme Court extended the principles established in Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) and held that “a criminal defendant may not engage in ‘purposeful discrimination on the ground of race in the exercise of peremptory challenges.’ [Cit.]” Jackson v. State, 265 Ga. 897, 898 (2) (463 SE2d 699) (1995). In determining whether a criminal defendant has purposefully exercised his or her peremptory challenges in a racially discriminatory manner, a trial court must employ the three-step burden shifting inquiry announced in Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834) (1995). This inquiry generally requires that the opponent of a peremptory challenge establish a prima facie case of racial discrimination (step 1). Id. at 131 LE2d 834, 839. “[T]he burden of production [then] shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination. [Cits.]” Id. This Court is required to review the findings of the trial court with great deference and cannot disturb such findings unless they are clearly erroneous. Jackson, supra at 900.

In this case, step one of the inquiry was moot because Wilburn, the proponent of the strikes, proffered his purportedly race-neutral reasons for the strikes. See Leeks v. State, 226 Ga. App. 227, 228 (3) (483 SE2d 691) (1997). Steps two and three of the inquiry, however, present a problem frequently encountered by this Court in reviewing a trial court’s findings in these matters: the record does not clearly show that the court first determined that Wilburn (the proponent) tendered a race-neutral explanation in step two before evaluating the persuasiveness of the justification and determining the ultimate issue of purposeful racial discrimination in step three. See, e.g., Leeks, supra; O’Neal v. State, 226 Ga. App. 224, 225-226 (1) (482 SE2d 478) (1997) (physical precedent only). Indeed, this same problem resulted in a reversal in Purkett and was the subject of much of the dissent’s opinion in that case. See Purkett, supra, 131 LE2d at 839, 840 (Justice Stevens dissenting).

Having identified the problem, we believe it worth noting that there is a rather simple solution. The trial court must not only utilize the Purkett analysis, but should also clearly state on the record its reasoning and conclusions as to each step of the inquiry. The interests at stake surely warrant such attention, and a clear record allows a more thorough and complete review of the trial court’s decision.

Although a clearer record would have allowed a more thorough review of the decision in this case, the record as it stands is sufficient to establish that the trial court did not clearly err in reseating the jurors. As for step two of the inquiry, the reasons tendered by Wilburn were race-neutral. Wilburn’s explanations were not based on the race of the jurors, nor was a discriminatory intent inherent in his explanations. See Jackson, supra at 898 (citing Purkett). And, while the record shows that the trial court did not specifically rule on the racial neutrality of Wilburn’s explanations, neither does it show that the court necessarily based its decision to reseat the jurors on a finding that the reasons were not race-neutral. Had the trial court found that the reasons were not race-neutral and reseated the jurors based on such a finding, that ruling would have been clearly erroneous and resulted in a reversal here. See Purkett, supra; Jackson, supra; Leeks, supra; and O’Neal, supra. But the record shows that the trial court continued its inquiry by asking the State to respond to Wilburn’s explanations and only after these responses were provided did the trial court reseat the jurors. Under these circumstances, the trial judge could have accepted Wilburn’s explanations as race-neutral without expressly ruling so (step two), but chose to disbelieve them following the State’s response (step three). Accordingly, although a clearer record would allow us to rely less on implication and more on the actual findings of the trial court, based on this unclear record we cannot conclude that the trial court clearly erred in reseating the stricken jurors. See Purkett, supra; Jackson, supra.

Judgment affirmed.

Birdsong, P. J., concurs specially. Eldridge, J., concurs specially and in judgment only in Division 2.

BIRDSONG, Presiding Judge,

concurring specially.

I concur fully with all that is said in the majority opinion, but I write separately to respond to Judge Eldridge’s special concurrence. Even though I concurred in Judge Eldridge’s opinion in Gardner v. State, 225 Ga. App. 427 (483 SE2d 912) (physical precedent), and did not respond to his special concurrence in McGlohon v. State, 228 Ga. App. 726 (492 SE2d 715) (physical precedent), upon further reflection I cannot agree with his view that Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834) is not applicable to the trial court’s analysis in a Batson/McCollum challenge.

More significantly, however, I believe this theory expressed in the concurring opinion in this case as well as in the majority opinion in Gardner v. State, supra and in the concurring opinion in McGlohon v. State, supra are contrary to Jackson v. State, 265 Ga. 897, 898 (2) (463 SE2d 699), in which our Supreme Court held that Purkett requires trial courts to apply the three-part test to Batson challenges. Additionally, I believe that this theory is contrary to the considerable body of law that has developed in this area. See, e.g., Turner v. State, 267 Ga. 149 (476 SE2d 252); Chandler v. State, 266 Ga. 509 (467 SE2d 562); McKenzie v. State, 227 Ga. App. 778 (490 SE2d 522); O’Neal v. State, 226 Ga. App. 224 (482 SE2d 478) (physical precedent). Thus, as we are bound to follow Jackson, we cannot adopt Judge Eldridge’s views on this issue even though they are helpful in analyzing the appellate considerations applicable in a Batson/McCollum challenge. Therefore, if I could now do so, I would withdraw my full concurrence in Gardner.

Eldridge, Judge,

concurring specially.

As to Division 2,1 concur in judgment only.

1. The majority states: “a trial court must employ the three-step burden shifting inquiry announced in Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834) (1995).” I cannot agree. A trial court does not engage in the analysis announced in Purkett and which formed the basis for reversal in that decision.

As I explained in Gardner v. State, have stressed repeatedly thereafter, and will continue to stress: The Purkett analysis does not apply to the trial court. Purkett applies to appellate analysis: “The Court of Appeals erred by combining Batson’s second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive [to the Court of Appeals].” (Emphasis supplied.) Purkett at 839; compare Jackson v. State, 265 Ga. 897, 899 (463 SE2d 699) (1995).

In Purkett, the Eighth Circuit Court of Appeals conducted a de novo review of the step 2 reasons for striking, found the reasons “silly,” and reversed the trial court’s step 3 determination that the reasons were sound. The United States Supreme Court admonished the Eighth Circuit Court of Appeals to keep its appellate “hands off” the trial court’s step 3 credibility determinations: “[T]o say that a trial judge may choose to disbelieve a silly or superstitious reason at step 3 is quite different from [the Eighth Circuit] saying that a trial judge must terminate the inquiry at step 2 when the race-neutral reason is silly or superstitious.” (Emphasis in original and supplied.) Id. at 839. In plain language: a trial judge may choose to disbelieve a silly reason, but he does not have to, and an appellate court cannot make him just because the appellate court finds the reason silly.

The Purkett bottom line: In a Batson/McCollum review, the appellate courts cannot use step 2 reasons which are race-neutral on their face in order to reverse a trial court’s step 3 credibility decision.

2. The majority states: “Indeed, this same problem [failure to determine explanations’ race-neutrality before persuasiveness] resulted in a reversal in Purkett and was the subject of much of the dissent’s opinion in that case. (Cit.)” Purkett did. not reverse a trial court on this basis.

Purkett was reversed because the appellate court (not the trial court) “combined” steps 2 and 3 by analyzing, de novo, the step 2 reasons for striking, instead of deferring to the trial court’s step 3 determination that the reasons were acceptable. The race-neutral reasons, themselves, obviously provided no basis for reversing a trial court’s decision to believe them.

3. In Purkett at the trial level, the Batson procedure went as follows: explanations were offered under step 2; and immediately thereafter, the trial court, without explanation (as in this case), overruled respondent’s objection and empaneled the jury under step 3. Id. at 838. That was all. And neither the Eighth Circuit Court of Appeals nor the United States Supreme Court disapproved of or attempted to alter, expand, or illuminate this trial procedure. The entire Purkett opinion was directed to appellate errors in evaluating this proper trial procedure.

Accordingly, what can be gleaned from the procedural posture of Purkett at the trial level (and the fact that such procedure was left alone by the appellate courts) is that:

(a) A trial court is not required to “specifically rule on the racial neutrality of [the proffered] explanations” as urged by the majority.

(b) A trial court is not required to first “deem! ] race neutral” a reason that it has determined to be pretext, as has been held in Pickett v. State, 226 Ga. App. 743, 745-746 (487 SE2d 653) (1997); Leeks v. State, 226 Ga. App. 227, 229 (483 SE2d 691) (1997); and O’Neal v. State, 226 Ga. App. 224, 225-226 (482 SE2d 478) (1997).

Decided February 17, 1998

Robert S. Devins, for appellant.

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

(c) A trial court is not required to first hear “rebuttal” of the explanations from the opponent of the strike as part of and prior to its step 3 determination as has been held in Gilbert v. State, 226 Ga. App. 230, 232 (486 SE2d 48) (1997).

(d) A trial court is not required to accept any reason as long as it is race-neutral on its face, as has been found in Malone v. State, 225 Ga. App. 315, 317-319 (484 SE2d 6) (1997), and Leeks, supra at 229; cf. McKenzie v. State, 227 Ga. App. 778 (490 SE2d 522) (1997).

(e) The record is not required to “show that the trial court considered each step of the three-step process separately” as has been held in Smith v. State, 229 Ga. App. 765 (494 SE2d 757) (1997), and Malone, supra at 318-319.

4. Our appellate interpretations of Purkett have had the effect of overruling Batson/McCollum in Georgia. Candidly, since our Supreme Court’s opinion in Jackson, which, in dicta, first applied the Purkett decision to the trial courts, as opposed to the appellate courts, Baston/McCollum jurisprudence in this State has been in turmoil. Language from Purkett such as “the second step does not demand an explanation that is persuasive or even plausible,” has been repeatedly applied in a direct appellate review of step 2, rather than in recognition of the correctness of the trial court’s Batson step 3 decision, as intended by Purkett. Trial courts are regularly being reversed by this Court on the basis of language in Purkett that was never meant to apply to the trial court’s Batson procedures. In short, we are engaging in the same errors in appellate analysis as did the Eighth Circuit Court of Appeals in Purkett.

A review of recent decisions from this Court makes it very clear that explicit guidance from our Supreme Court is needed on this issue, and very soon, in order to ensure that Batson and McCollum remain viable. Physician, heal thyself; otherwise, the evil against which Batson and McCollum were designed to protect, discrimination in the use of peremptory strikes, is back, in force, in Georgia.

       225 Ga. App. 427 (483 SE2d 912) (1997): a case whose length apparently precluded worth; see also McGlohon v. State, 228 Ga. App 726 (492 SE2d 715) (1997) (Eldridge, J., concurring specially).

       In a McCollum, appeal, such as in this case, the race-neutral aspect of the reasons provides no basis for reversal, because the trial court does not believe the explanations despite their race-neutral cast. The trial court’s step 3 credibility determination is then based upon factors other than the facially race-neutral reasons. Thus, the appellate inquiry in a McCollum claim is the mirror image of that of a Batson claim: whether anything in the record demonstrates that the trial court was clearly in error for disbelieving the race-neutral reasons.

       In Purkett, as in this case, the prosecutor offered explanation for his use of strikes following the initial objection, and a step 1 prima facie showing was not made. See, e.g., Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626) (1993).


author: McMurray, Presiding Judge.

text:
    A98A0198.
    HAWKINS v. THE STATE.
    (497 SE2d 386)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of four counts of aggravated assault by use of a deadly weapon. The evidence adduced at trial revealed that defendant shot at a car containing the four victims, hitting two of them. Officer Fred Black of the Bainbridge Department of Public Safety was dispatched to “J’s Place on Albany Road,” to investigate a report of “shots fired.” He found “nine 9 millimeter . . . spent cartridges,” which he concluded had only “been fired recently[, because] [t]hey [were] on top of the ground. They hadn’t been [run] over or stepped on.” Judging from the position of the casings, Officer Black inferred “[t]he shooter appeared to have been coming out from the side of the building going towards the roadway as he was firing.”

Investigator Robert Humphrey was advised by another officer that the victim Willie Fagg identified the shooter by name as defendant. Based on this information, Humphrey prepared a six-picture photographic lineup and showed it to another victim, Tony Taylor. “He [Tony Taylor] immediately pointed at number five which is a photograph of [defendant] Ramu Hawkins.”

Fagg testified that he knew defendant from a prior run-in at the Spike Lounge, where, after Fagg engaged in some verbal contretemps with a female, defendant Hawkins and some others came to the female’s aid and “rushed [Fagg]. And [defendant] Ramu [Hawkins] was the first person to hit [Fagg]. He hit [Fagg] in the mouth and [Fagg] fell down on [his] hands and knees. . . . The next time [Fagg] saw [defendant] it was anywhere from a couple of weeks to a month later. [Fagg] was ... at [his] cousin’s house and [they] were sitting on the porch. . . . And [defendant] Ramu just happened to be out there. [The cousin,] she just happened to call [defendant’s] name. And [Fagg] had one of [his friends] with [him, the subsequent victim] Tony Taylor, and [Fagg] told [Taylor],. . . ‘That’s the guy that hit me at the Spike that night.’ ”

On the night in question, Fagg, Taylor, Jimmy Donalson, and Tarrey Butler were riding together in Fagg’s car. As they approached J’s Place, there were “three or four guys standing right on the corner. And [Fagg] wound the window down and . . . asked one of them was his name Ramu Hawkins and he said, ‘No, that’s my brother.’ . . . [Fagg] wanted to show the guys in the car who it was that hit [him] that night.” According to Fagg it was defendant himself “that said, ‘That’s my brother.’ ” Fagg told his companions, “ ‘this is the one that hit me.’ ” Once inside the club, Fagg saw defendant but there was no confrontation. At about 1:30 a.m., Fagg and his friends decided to leave. As he “got [his car] on the highway [Fagg] noticed a noise that sound[ed] like — [He] thought somebody was throwing bottles or rocks or something at [the] car. . . .” At this point, he “knew that it was shooting . . . when one of the passengers in the back, Tony said he had been hit in the back. . . . And then Tarrey Butler said he had been hit in the head. He had blood coming out of his head. So . . . [Fagg] hit the gas and . . . took them on to the hospital.”

Taylor identified defendant in court as the shooter. He was “[p]ositive . . .” defendant was “the same person that was shooting at the car. When the first bullet hit the window, the front windshield, . . . [Taylor] looked out [his] side window and . . . looked dead at him [defendant].” On cross-examination, Tony was adamant that he saw everything.

The jury found defendant guilty of all four counts of aggravated assault. He appeals directly from the judgment of conviction entered by the trial court on the jury’s verdict. Held:

1. At trial, defendant moved in limine to exclude evidence of his prior difficulties with Fagg at the Spike Lounge. The State’s attorney submitted that such evidence was relevant to establish motive or bad blood and to prove the identity of the shooter. Defendant insisted “a hearing should have been held as to the State’s intention to introduce evidence of any similar transaction.” The trial court ruled the evidence “is admissible, not necessarily as a prior similar transaction but would bear on the relationship between the parties and the bad blood that might exist between them.” In his second enumeration, defendant contends the trial court erred in allowing the State’s attorney to introduce evidence of prior conduct without ten days’ written notice and a hearing as contemplated by Uniform Superior Court Rule (“USCR”) 31.

(a) USCR 31.1 and 31.3 (B) require the State to provide defendant with ten days’ written pretrial notice of its intent to introduce “evidence of similar transactions or occurrences. . . .” In 1990, the Supreme Court of Georgia held that USCR 31 “applies to acts which are categorized as similar transactions, as well as to those acts or occurrences which are categorized as prior difficulties.” Loggins v. State, 260 Ga. 1, 2 (388 SE2d 675). “Here, [for aught that appears of record,] no such notice was provided and its absence was error.” Maxwell v. State, 262 Ga. 73, 74 (2) (a) (414 SE2d 470). “In Maxwell, [the Supreme Court further] observed that the hearing requirements of USCR 31.3 (B) applied to recent difficulties occurring between the accused and the victim . . . .” Stewart v. State, 263 Ga. 843, 845 (440 SE2d 452).

Consequently, the trial court in the case sub judice erred in denying defendant’s motion in limine, at least pending the outcome of a USCR 31.3 (B) hearing to determine the admissibility of such prior difficulties.

(b) “While the failure to have a [timely-noticed] Maxwell hearing was error, we are unable to conclude at this time that the error requires a new trial.” Stewart v. State, 263 Ga. at 845, supra. “If upon the trial of the case the defense places the defendant’s character in issue, evidence of similar transactions or occurrences, as shall be admissible according to the rules of evidence, shall be admissible, the above provisions [of USCR 31] notwithstanding.” USCR 31.3 (D).

In the case sub judice, defendant took the stand and explained that the incident at the Spike Lounge got physical when Fagg said to defendant, ‘“F you’ and [they] exchanged words. And as [they] exchanged words, [they] got closer. So [they] started arguing. Then [defendant and] Mr. Fagg started fighting, which we fell to the ground.” Defendant’s introduction of evidence corroborating the fact of the fistfight with the victim Fagg renders harmless the erroneous introduction of such character evidence by the State without a prior USCR 31.3 (B) hearing.

2. Defendant’s third enumeration contends the trial court erred in admitting evidence of an impermissibly suggestive pre-trial identification, because the photographic array contains only one suspect — defendant — whose hair is in plats.

Defendant moved in limine to exclude State’s Exhibit 16, the photographic array shown to Taylor, arguing “the photos used in this photo lineup appear to be mug shots and such use would give impression to the jury that the Defendant has been previously arrested which would place his character in evidence and we would object to the use of the photo lineup.” In response, the trial court, using scissors, “removed . . . from the photo lineup the printed matter which says ‘Bainbridge Public Safety Department.’ ” When the State introduced the exhibit during trial, defendant expressed no objection “other than already been expressed in the pretrial motion.”

“All evidence is admitted as of course, unless a valid ground of objection is interposed, the burden being on the objecting party to state at the time some specific reason why it should not be admitted. A failure to make such objection will be treated as a waiver. . . .” Andrews v. State, 118 Ga. 1 (hn. 1) (43 SE 852). Accord Lemon v. State, 80 Ga. App. 854, 855 (1) (57 SE2d 626). While we agree that the photographic array depicting only the prime suspect, i.e., defendant, with his hair in “plats,” constitutes-a valid basis for challenging that array as impermissibly suggestive, we must conclude that defendant waived any such objection in the case sub judice by failing to urge this specific ground before the trial court. Consequently, this enumeration presents nothing for review.

3. The first and fourth enumerations challenge the sufficiency of the evidence. Defendant argues the testimony of Taylor is incredible.

On appeal from a criminal conviction, the evidence must be con-

Decided February 17, 1998.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Victoria Spear-Darrisaw, Assistant District Attorney, for appellee.

strued in the light most favorable to the jury’s verdict, and defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130); King v. State, 213 Ga. App. 268, 269 (444 SE2d 381).

“A person commits the offense of aggravated assault when he . . . assaults . . . [w]ith a deadly weapon . . . which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). “The act of intentionally firing a gun at another, in the absence of justification, is sufficient to support a conviction for aggravated assault under this statute. Steele v. State, 196 Ga. App. 330, 331 (2) (396 SE2d 4).” Belins v. State, 210 Ga. App. 259 (1) (435 SE2d 675). “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. In the case sub judice, the testimony of Taylor identifying defendant as the shooter is sufficient to authorize the jury’s verdicts that defendant is guilty, beyond a reasonable doubt, of the offenses of aggravated assault by use of a deadly weapon as alleged in the indictment.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Andrews, Chief Judge. Blackburn, Judge,

text:
    A97A2067.
    GOODMAN et al. v. CITY OF SMYRNA.
    (497 SE2d 372)
   Andrews, Chief Judge.

Dennis Goodman sued the City of Smyrna claiming the City wrongfully caused the death of his 11-year-old child, Deanette Goodman. This tragic death resulted from injuries the child sustained when she roller-skated down the incline of a City street, lost control, and skated off the street into the drop-off of an adjacent rocky creek bed. Goodman alleged that the street and the creek were negligently constructed and maintained by the City or constituted a nuisance. The trial court granted the City’s motion for summary judgment concluding that the child was aware of the creek bed, appreciated the danger of being injured by falling into it, and assumed the risk by skating down the slope of the street at a high rate of speed in the vicinity of the drop-off.

The record shows that the street at issue sloped down a hill to a sharp curve and that at the curve, a creek ran adjacent to the street with about a six-foot drop-off from the street level to the bottom of the creek bed. Although a small amount of vegetation was growing in an area a few feet wide between the edge of the street and the drop-off, a photograph of the area taken the day after Deanette fell shows that the vegetation did not obscure the drop-off. The City police detective who investigated the incident the day after it happened and took the photograph stated by affidavit that the drop-off was visible coming down the hill from a distance of at least 40 feet. There was no evidence that anyone had previously fallen into the creek or that the City had ever received any report that the street or the creek posed a hazard to pedestrians.

Goodman deposed that he allowed his daughter to skate on the street because it was located in the. quiet neighborhood in which they resided. He testified that Deanette was an accomplished skater who frequently skated down the sloped street, that she was intelligent and mature for her age, and that she was aware of the danger of being injured by falling from a height. A friend with whom Deanette played and skated in the neighborhood stated by affidavit that prior to the incident at issue, she and Deanette had on two occasions looked at the creek and the drop-off in the area where Deanette later fell. She stated that she and Deanette talked about the fact that there was a drop-off down to the creek, that they could be hurt by falling into the creek from the street, and that they should be careful in that area. She stated that on the day Deanette fell into the creek, they were skating together down the incline of the street being chased by Deanette’s brothers. She said that Deanette was ahead of her skating “very fast” down the street and that as Deanette approached the area of the street where the creek ran adjacent, Deanette looked back at her and yelled, “hurry up.” She stated that before Deanette could turn back around, she skated off the street and into the creek.

Although assumption of the risk is ordinarily a jury question, in plain, palpable and indisputable cases, it may be decided as a matter of law. Young v. Brandt, 225 Ga. App. 889, 891 (485 SE2d 519) (1997). In order to establish the defense of assumption of the risk, the City was required to show that Deanette Goodman “(1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed [herself] to those risks.” (Footnote omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996). As to a child between the ages of seven and fourteen, “there is no presumption that the child did or did not exercise due care or does or does not have sufficient capacity to recognize danger or to observe due care.” (Citations and punctuation omitted.) Jackson v. Young, 125 Ga. App. 342, 343-344 (187 SE2d 564) (1972). For children between these ages, these issues hinge on the circumstances of the case and the capacity of the particular child. Id. at 344. Nevertheless, there is no bar to applying assumption of the risk, as a matter of law, to the conduct of a child between these ages when the evidence shows that the danger was obvious, that the child knew of the danger and was able to appreciate the risks associated with it, and the child voluntarily chose to run the risk. Abee v. Stone Mountain Mem. Assn., 252 Ga. 465, 466 (314 SE2d 444) (1984), affirming 169 Ga. App. 167 (312 SE2d 142) (1983).

Generally, the dangers of fire, water and falling from heights are considered to be understood even by a young child absent factors creating additional risks which could not be appreciated by the child. Riley v. Brasunas, 210 Ga. App. 865, 867 (438 SE2d 113) (1993). “No danger is more commonly realized or risk appreciated, even by children, than that of falling; consciousness of the force of gravity [is almost instinctual]. Certainly a normal child [of 11] years of age . . . knows that if it steps or slips from . . . [an] elevated structure, it will fall to the ground and be hurt.” (Citations and punctuation omitted.) Laite v. Baxter, 126 Ga. App. 743, 746-748 (191 SE2d 531) (1972); Riley, supra at 867. Accordingly, Goodman’s 11-year-old daughter is considered to have assumed the risk of patent, obvious and known dangers which she was able to appreciate and avoid. Abee, supra, 169 Ga. App. 167, 169.

We need not address Goodman’s allegations that the City was negligent or maintained a nuisance, nor need we decide whether the child occupied the status of a licensee or trespasser at the time of the incident. Even assuming, without deciding, that the City breached a duty of care owed to the child, we conclude that the trial court correctly granted summary judgment to the City on the basis of assumption of the risk. In this case, the danger and associated risks of rollerskating down the slope of the street at a high rate of speed toward a sharp curve in the street bordered by a visible six-foot-deep drop-off were obvious. See Biggs v. Brannon Square Assoc., 174 Ga. App. 13, 16-18 (329 SE2d 239) (1985). The record shows that Deanette was an intelligent 11-year-old who was an experienced skater, knew the drop-off was there, and appreciated the danger of falling into it from the street. Here, the obvious risks in skating at a high rate of speed down the sloped street toward the adjacent drop-off to the creek were losing control, skating off the street into the creek, and being injured in the fall. "[T]he obviousness of the very danger which led to [Deanette’s tragic death] makes this one of those cases in which a minor below the age of fourteen may be deemed to have assumed the risk as a matter of law.” Abee, supra, 252 Ga. at 465-466; Barnes v. Fulton, 213 Ga. App. 806, 807-808 (446 SE2d 213) (1994).

Goodman claims the child’s momentary inattentiveness before she fell precludes application of assumption of the risk. Although it appears that Deanette may have momentarily disregarded the danger when she looked back to call to her friend, this does not change the fact that she assumed the risk of a danger she knew and appreciated. “It may be that some children, while realizing the danger, will disregard it out of a spirit of bravado, or because ... of their ‘immature recklessness’ but the possessor of land is not to be visited with responsibility for accidents due to this trait of children of the more venturesome type.” (Citation and punctuation omitted.) Augusta Amusements v. Powell, 93 Ga. App. 752, 757 (92 SE2d 720) (1956).

Goodman also claims that his daughter could not have appreciated the risks associated with the combination of a sloping street, a “roll curbing” at the edge of the street, the City’s placement of “rip-rap” rocks in the creek to control erosion,- and the lack of guardrails and warning signs. Contrary to Goodman’s assertion, the slope of the street was obvious, and we find that Deanette, who frequently skated down the street, was fully capable of appreciating that she would pick up speed skating down the slope. Furthermore, the rocks in the creek bed and the lack of any barrier to prevent one from falling into the creek were obvious features. The record shows that before she fell, Deanette had seen the creek and the drop-off to the creek bed in the area where she later fell, and she appreciated the fact that she could be injured by falling into the creek in that area. Finally, the fact that Deanette skated over a “roll curb” a few inches high at the edge of the street which may have lifted her slightly before she went over the drop-off into the creek did not create an additional risk factor which the child could not appreciate. The evidence shows that the “roll curb” did not increase or decrease the risk because, under the circumstances, the child would have fallen into the creek whether or not she skated over a roll curb.

Judgment affirmed.

Johnson, J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I concur specially because I believe that the existence of assumption of risk is ordinarily a jury question, and it is especially so when that doctrine is being applied to young children. In Jackson v. Young, 125 Ga. App. 342, 343-344 (187 SE2d 564) (1972), cited by the majority, we held, “ ‘There is no presumption of law that a child between the ages of seven and fourteen did or did not exercise due care, or does or does not have sufficient capacity to recognize danger or observe due care.’ Brewer v. Gittings, 102 Ga. App. 367 (4) (116 SE2d 500). As was well said by Judge Bell in this controlling authority (p. 374): Tt seems clear from the Georgia cases that the question of capacity or lack of capacity to be contributorily negligent in the case of children between the ages of seven and fourteen is a subjective one which necessarily depends in each situation upon the particular child’s mental and physical capacity. Thus, there is no presumption that the child did or did not exercise due care or does or does not have sufficient capacity to recognize danger or to observe due care. See Simmons v. Atlanta & West Point R. Co., 46 Ga. App. 93 (d) (166 SE 666); Southern R. v. Chatman, 124 Ga. 1026, 1037 (53 SE 692, 6 LRA (NS) 283, 4 AC 675). Since the question of capacity is an individual one in each of the cases involving children between seven and fourteen years of age, the jury must first find that the particular child had the capacity required and then must decide whether or not the child exercised it. As it was stated in Central R. & Bkg. Co. v. Rylee, 87 Ga. 491, 495 (13 SE 584, 13 LRA 634), “The better rule would be for the jury to deal with each case upon its own facts, unhampered by presumptions of law either for or against the competency of the child.” ’ ”

However, in Abee v. Stone Mountain Mem. Assn., 252 Ga. 465, 466 (314 SE2d 444) (1984), affirming 169 Ga. App. 167 (312 SE2d 142) (1983), our Supreme Court held that, in some cases, the obviousness of the danger causing injury allows a judge to determine that a minor below the age of 14 assumed the risk of injury as a matter of law. I agree with Justice Gregory, who, in his dissent, stated that he felt this issue should be resolved by a jury.

It is true that the obviousness of the danger may support a judgment, as a matter of law, when dealing with an adult, because such adult’s capacity to comprehend and appreciate the danger may be presumed. No such presumption may be applied when dealing with a child between the ages of seven and fourteen. With such children, the child’s capacity to recognize danger or observe due care is a question of fact that must be determined in each case, regardless of the obviousness of the danger. The obviousness of the danger, no matter how evident, cannot establish the ability of the child to appreciate it. The distinction between a child and an adult is based upon the child’s reduced ability to appreciate the danger, not its ability to see it. Each child has a different mental capacity and level of maturity, and exactly what that capacity is in each case should be a question for the jury, not the trial judge.

In applying the law of assumption of risk to the present facts, it is clear that the rocky cliff was an open and obvious danger of which the child was aware. Whether the child appreciated such obvious danger is a question of fact for a jury to determine. In every case, each child approaching that cliff will have a different capacity to comprehend and appreciate the danger of falling into the abyss. The flaw in our Supreme Court’s holding in Abee is demonstrated by the fact that it authorizes a majority opinion that would have been no different in substance had the plaintiff been an adult.

Decided February 4, 1998

Reconsideration denied February 18, 1998

King & Croft, F. Carlton King, Jr., Thomas A. Croft, for appellants.

Freeman, Mathis & Gary, Theodore Freeman, Drew, Eckl & Farnham, William T. Mitchell, Shivers & Associates, Wayne C. Wilson,' Dan J. Colley, for appellee.

While our Supreme Court’s opinion on this issue authorizes the majority’s holding, I believe that this rule is unsound because it ignores the issue of the child’s capacity to comprehend and appreciate the subject danger, with the result that the same standard is applied to such children as to adults.

According to W. Prosser, Law of Torts, 4th ed., p. 440, § 68 (1971), “[i]n its simplest and primary sense, assumption of risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.” Therefore, for assumption of risk to apply, it must be shown that the plaintiff knew or should have known of a potential danger and appreciated it to the extent that he may be deemed to have made the decision to voluntarily face it.

       Goodman alleged that he brought the action on his own behalf and on behalf of the child’s mother pursuant to OCGA § 19-7-1.


author: Johnson, Judge.

text:
    A97A2194.
    SMITH v. STEINEMANN DEVELOPMENT COMPANY.
    (497 SE2d 255)
   Johnson, Judge.

Steinemann Development Company (“SDC”) sued David Smith for breach of contract and fraud and deceit. SDC filed a motion for partial summary judgment as to the breach of contract claim. The trial court granted SDC’s motion, and Smith appeals. We affirm the trial court’s grant of partial summary judgment to SDC, but vacate the trial court’s award of legal fees and expenses to SDC.

1. In his first enumeration, Smith contends the trial court erred in relying on affidavits served by SDC three days before the scheduled hearing on its motion for partial summary judgment.

Pursuant to OCGA § 9-11-6 (d), “[w]hen a motion is supported by affidavit, the affidavit shall be served with the motion.” However, an objection to the timeliness of an affidavit submitted in support of a motion for summary judgment will be deemed waived unless it is itself timely raised in the trial court. See, e.g., Southeastern Hose v. Prudential Ins. Co. &c., 167 Ga. App. 356, 358 (3) (306 SE2d 308) (1983).

While Smith asserts in his appellate brief that his counsel objected to the use of these affidavits at the time of the hearing on SDC’s motion for summary judgment, there is nothing in the record to substantiate this. “It is well settled that this court will not consider factual representations made in a brief which are not supported by the record.” Pruitt v. Tyler, 181 Ga. App. 174, 175-176 (1) (351 SE2d 539) (1986). Smith’s attorney, if in fact he made a timely objection but failed to perfect the record, could have availed himself of the procedure available pursuant to OCGA § 5-6-41 (f) to obtain a record of the objection. Id. Since this procedure was not utilized, we must conclude, based on the record before us, that SDC’s additional affidavits were not objected to and were therefore properly before the trial court. Id.

2. The trial court did not err in concluding that Smith is liable to SDC under the contract.

The record shows that Smith and SDC entered into a contract wherein SDC would purchase real property located in Fulton County and grant Smith an option to acquire the property at a later date. The contract also gave SDC an option to acquire real property in Gwinnett County from Smith provided certain terms and conditions were met. As part of these terms and conditions, Smith executed an indemnity agreement. Regarding the Gwinnett County property, the indemnity provision, located in paragraph 5 of Exhibit E to the contract, provides as follows: “Smith warrants and represents to [SDC] and to FCS that no other person or entity has any interest in the . . . Purchase Contract or any similar right to obtain an interest in the . . . Property by, through or under AIM or Smith (including, without limitation, any rights of JPI, which Smith warrants have expired) and agrees to defend, indemnify and hold harmless FCS and [SDC] from and against any claim, liability, loss expense, including without limitation, attorneys fees, arising out of or related to the existence or assertion of any such interest or right.”

After Smith and SDC executed the contract, SDC accepted an assignment of the Gwinnett County property contract. As part of that assignment, Smith and SDC signed a “Memorandum of Understanding,” which states: “Notwithstanding the claims of Jefferson Creek Associates, L.P., the parties acknowledge and reaffirm that the representation, warranty and indemnity obligations of David L. Smith under Paragraph 5 of Exhibit ‘E’ of the Agreement shall survive consummation of the Assignment and the closing of the sale of the [Gwinnett County property] pursuant to the Agreement.”

Shortly thereafter, Jefferson Creek Associates, the assignee of a corporation which previously had a contractual right to purchase the Gwinnett property, brought an action against SDC, Smith and others, claiming an interest in the property. The action was tried before a jury, but was settled and dismissed prior to the entry of judgment without either Smith or SDC admitting any liability.

SDC then filed the present suit, alleging Smith is liable for attorney fees and legal expenses, as well as other incidental expenses, incurred in connection with the earlier action under the indemnity provision of their contract.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “The movant has the original burden of making this showing. Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence.” (Citation and punctuation omitted.) Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 392-393 (2) (469 SE2d 469) (1996). In rebutting this prima facie case, “an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in [OCGA § 9-11-56], must set forth specific facts showing that there is a genuine issue for trial.” OCGA § 9-11-56 (e). See also Lau’s Corp., supra.

According to Smith, he “has squarely denied liability under the indemnity agreement through his answer and affirmative defenses and his response to [SDC’s] statement of undisputed facts.” However, Smith cannot rest upon the mere allegations or denials of his pleadings. He has failed to come forward with any evidence showing that his affirmative defenses are meritorious or that there is a genuine issue for trial. He failed to provide the trial court with any evidence contesting the fact, execution, validity or enforceability of the contract containing the indemnity provision. Thus, whether Smith admitted liability or not, the trial court did not err in finding him liable under the indemnity provision of the contract. A trial court’s ruling, right for any reason, will be affirmed on appeal. Keith v. Alexander Underwriters &c., 226 Ga. App. 838, 840 (1) (487 SE2d 673) (1997).

3. Smith further asserts that the trial court erred in concluding that he did not dispute the amount of legal fees and expenses sought by SDC. We agree. The trial court’s judgment as to the amount of legal fees and expenses is vacated, and the case is remanded for further proceedings.

Decided February 5, 1998

Reconsideration denied February 18, 1998

Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling, for appellant.

Doffermyre, Shields, Canfield & Knowles, Everette Doffermyre, Jr., Samuel W. Wethern, R. Keegan Federal, Jr., Louis Levenson, for appellee.

In paragraph 9 of his order, the trial judge stated that the amount of legal fees and expenses incurred by SDC is not disputed by Smith. He then entered judgment against Smith for the sum set forth by SDC. However, both Smith and his attorney submitted affidavits contesting the reasonableness of the legal fees and expenses sought by SDC. Therefore, the trial court’s judgment must be reversed and the case remanded so that the amount of legal fees and expenses may be proven at trial. Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5) (470 SE2d 467) (1996); Citadel Corp. v. All-South Subcontractors, 217 Ga. App. 736, 737 (1) (458 SE2d 711) (1995).

Judgment affirmed in part, reversed in part and case remanded with direction.

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


author: Pope, Presiding Judge.

text:
    A97A2443.
    KOLOMICHUK v. BRUNO’S, INC.
    (497 SE2d 10)
   Pope, Presiding Judge.

Michael A. Kolomichuk sued Bruno’s, Inc. over injuries he sustained when he slipped and fell in one of Bruno’s grocery stores in Albany. He claimed that he had slipped on “a wet spot which he was unable to observe and avoid” or, alternatively, “the highly waxed and polished floor.” Following discovery, Bruno’s moved for summary judgment. The trial court granted its motion after finding that the evidence clearly showed no foreign substance was on the floor, that Kolomichuk had produced no evidence showing the floor was so slippery as to be defective, and that Kolomichuk did not know why he fell. We affirm the trial court’s judgment.

This Court reviews de novo the grant of a motion for summary judgment to determine whether the trial court properly found that no material issues of fact existed and that the movant was entitled to judgment as a matter of law. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Citations and emphasis omitted.) Lau’s Corp. v. Has-kins, 261 Ga. 491 (405 SE2d 474) (1991). A judgment that is right for any reason must be affirmed. Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74, 78 (441 SE2d 421) (1994).

Kolomichuk stated that he was pushing a cart down an aisle near the back of the store when he fell. He saw nothing on the floor before or after he fell and testified in his deposition, “I slipped on something, but I don’t know what.” Although the floors had “a very high shine,” Kolomichuk did not slip anywhere else during the time he was in the store and did not know whether the spot where he fell was more slippery than the rest of the store floor. Two other customers who were in the same aisle when Kolomichuk fell testified they saw nothing on the floor before the fall. Kolomichuk deposed the store manager, who testified that the floors were waxed as needed with an industrial floor wax and were mopped and buffed nightly by an outside cleaning company.

Given this evidence, the trial, court’s judgment was correct. In a slip and fall case allegedly resulting from the defendant’s negligence in maintaining a highly waxed and slippery floor, “the plaintiff must, at a minimum, show that the defendant was negligent either in the materials he used in treating the floor or in the application of them.” Alterman Foods v. Ligón, 246 Ga. 620, 624 (272 SE2d 327) (1980). Under Lau’s Corp., the defendant may pierce the pleadings of the complaint by showing that no evidence supports an essential element of the plaintiff’s claims. Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), did not alter the Alterman Foods-Lau’s Corp. analysis as it applies to this type of slip and fall case. Here, Bruno’s showed that no foreign substance was on the floor, explained its floor waxing process, and showed that it regularly mopped and buffed the floors. Kolomichuk “did not introduce any evidence of the quality of material used or the methods which [Bruno’s] used in waxing and maintaining its floor. [He] merely stated that [he] slipped and fell, but that [he] could not determine what it was that caused [his] fall.” Alterman Foods, 246 Ga. at 624. See Hall v. Cracker Barrel Old Country Store, 223 Ga. App. 88, 90-91 (1) (476 SE2d 789) (1996); Caven v. Warehouse Home Furnishings Distrib., 209 Ga. App. 706, 707 (434 SE2d 532) (1993). Compare Fugate v. Gayfers Mercantile Dept. Stores, 201 Ga. App. 867, 869 (412 SE2d 617) (1991) (applying a pre-Lau’s Corp. standard which required the defendant to affirmatively negate the plaintiffs allegations).

Decided January 27, 1998

Reconsideration dismissed February 18, 1998.

L. Clayton Smith, Jr., for appellant.

Hodges, Erwin, Hedrick & Coleman, David W. Orlowski, for appellee.

In opposition to Bruno’s summary judgment motion, Kolomichuk filed an affidavit in which he stated that he believed he slipped “on the highly polished surface of the tile floor and not on any foreign substance, unless there was a clear substance which could not be readily observed on the high sheen of the floor.” The affidavit again reiterates Kolomichuk’s uncertainty regarding his fall; however, to the extent this affidavit contradicts his deposition testimony, we construe it against him. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986). Kolomichuk also contends his claim of negligence is supported by the affidavit of another customer who, three weeks before Kolomichuk’s fall, slipped on the “highly polished, slippery floor” in the front of the store near the cash registers. However, “ ‘[s]imilar acts or omissions on other and different occasions are not generally admissible to prove like acts or omissions at a different time or place.’ [Cits.]” Hall v. Cracker Barrel, 223 Ga. App. at 92. In light of Kolomichuk’s admission that he did not know the cause of his fall, and given the dissimilar circumstances, this affidavit creates no genuine issue of material fact requiring jury resolution. See Greene v. Piedmont Janitorial Svcs., 220 Ga. App. 743, 744 (1) (470 SE2d 270) (1996).

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    A97A2175.
    YOH et al. v. DANIEL et al.
    (497 SE2d 392)
   Beasley, Judge.

Edward and Alison Yoh reneged on their contract to sell their residence to Frank and Julie Daniel, even though the Daniels (with the consent of the Yohs) had substantially improved the home in anticipation of the sale. The Daniels then received their earnest money back, which cancelled the contract. A jury awarded the Daniels $6,250 in general damages and $5,000 in attorney fees based on claims of unjust enrichment, quantum meruit, and conversion.

1. The Yohs first claim they were entitled to a new trial “because the actual damages awarded by the jury were greater than the damages testified to and presented as evidence at trial.” We have often upheld jury awards exceeding the highest amount testified to at trial. Piedmont Builders v. Fullerton upheld a verdict that was 25 percent more than the highest monetary estimate that could form the basis for damages. As stated, “[t]he jury ... is not bound by the exact limits of the evidence. . . . The jury may consider the nature of the property involved and any other facts or circumstances within their knowledge, and a verdict which exceeds or falls short of the value testified to will be sustained where there are sufficient facts in evidence from which they may draw a legitimate conclusion, and the verdict is not palpably unreasonable under all the evidence so as to be excessive as a matter of law.” Following the same reasoning, we upheld a jury verdict in Hogan v. Olivera that was $2,865 more than the highest estimate.

The Daniels presented evidence (a) they purchased materials amounting to $2,000 to improve the house; (b) the Yohs had converted $1,000 in oriental rugs stored by the Daniels at the house; and (c) the Daniels had labored over 100 hours in improving and extensively cleaning the house. The jury had pictures and a detailed description of the work done or to be done. This evidence in toto authorized the jury to award the value of improvements to the house, even if it exceeded the cost of the materials and labor.

The Yohs argue the jury could not award the Daniels the value of their labor because they testified they were not seeking their labor costs. But the Yohs misapprehend the measure for damages. “The unjustly enriched party should pay for its gain. [Cit.]”

2. The Yohs contend there was no legal basis for an award of attorney fees. This ignores the conversion claim for the oriental rugs the Yohs had taken or given away. Even though a conversion count was not separately set forth in the original complaint or in the pretrial order, the allegations and the evidence supported such a claim. Based on the evidence presented, the court, with no objection, announced this theory as a basis for recovery and later so instructed the jury, again with no exception. A conversion claim is an intentional tort which will carry an award of attorney fees.

3. The Yohs claim the court erred in not granting their motion for directed verdict on the quantum meruit and unjust enrichment claims. They argue the Daniels failed to show an anticipation of compensation.

But there was evidence the parties anticipated there would be compensation. OCGA § 9-2-7 sets forth the statutory presumption that “[ojrdinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.” The Yohs, who authorized the Daniels to improve the house, accepted the improvements by moving back in and living there. The Yohs were aware the Daniels were improving the house beyond the minimum required by the lender. The Daniels improved the house with the intention of personally benefiting therefrom and not as a gratuity to the Yohs.

Furthermore, unlike quantum meruit, a claim for unjust enrichment does not require a showing of the anticipation of compensation. Quantum meruit relies on an implied promise of compensation. This is in essence an implied contract.

Unjust enrichment differs. “Even if no express or implied contract arose between the parties, an obligation to pay arises upon the theory of unjust enrichment where a benefit has been conferred upon the party sought to be held liable for the value, which is analogous to quantum méruit in that the duty to pay arises out of the receipt of a benefit. A party cannot receive and retain the benefit of another’s labor without the duty to pay for the reasonable value of such work.” Thus, Regional Pacesetters v. Halpern Enterprises held a jury could find unjust enrichment where the plaintiff had improved the leased premises believing it had a five-year extension on its lease. Whether defendant “induced plaintiff to expend sums of money which unjustly inured to [defendant’s] benefit is indeed a question of material fact” for the jury. Because an implied contract is not necessary for unjust enrichment, a showing of an expectation of compensation is not required.

Decided February 18, 1998.

Bandy & Stagg, Lawrence A. Stagg, for appellants.

Sawyer & Sawyer, Horace K. Sawyer III, for appellees.

The trial court did not err in refusing to grant a directed verdict.

4. Pursuant to OCGA § 5-6-6, the Daniels moved for damages for frivolous appeal. The Yohs never disputed they had unilaterally breached the real estate contract. The Daniels brought this action to recover for the improvements to the Yohs’ house in anticipation of the sale and to recoup for items stolen by the Yohs. It does not appear that there was any valid reason for the Yohs to anticipate reversal of the trial court’s judgment.

We conclude that this appeal was brought only for purposes of delay. The Daniels’ motion for ten percent damages for frivolous appeal is granted. The clerk is directed to enter ten percent damages upon the remittitur.

Judgment affirmed.

Smith, J., concurs. McMurray, P. J, concurs in the judgment only and dissents in part.

McMurray, Presiding Judge,

concurring in the judgment only and dissenting in part.

While I agree that the judgment in this case should be affirmed, I cannot agree with all that is said in the majority’s opinion and thus concur in the judgment only.

Furthermore, I respectfully dissent to the majority’s imposition of a penalty upon appellants. In my view, it has not been established that this appeal is wholly frivolous. Moreover, such an endeavor as exercised by the majority serves only to inflict a chill upon the appeal process and thus impedes justice.

       157 Ga. App. 126 (276 SE2d 277) (1981).

       (Citations omitted.) Id. at 127 (1).

       141 Ga. App. 399, 401-405 (1) (d) (233 SE2d 428) (1977).

       See Dept. of Transp. v. Driggers, 150 Ga. App. 270 (257 SE2d 294) (1979) (upholding verdict $4,333 more than highest estimate).

       See Regional Pacesetters v. Halpern Enterprises, 165 Ga. App. 777, 782-783 (2) (300 SE2d 180) (1983) (defendant must pay value of unjust enrichment).

        White v. Arthur Enterprises, 219 Ga. App. 124 (1) (464 SE2d 225) (1995); see Watson v. Sierra Contracting Corp., 226 Ga. App. 21, 28 (c) (485 SE2d 563) (1997) (look from perspective of recipient).

       See OCGA § 9-11-15 (b) (pleadings are amended to conform to the evidence); Fruin-Colnon Corp. v. Air Door, 157 Ga. App. 804, 806 (2) (278 SE2d 708) (1981) (evidence of new claim, received without objection, amends pleadings to include claim).

        Stargate Software Intl. v. Humph, 224 Ga. App. 873, 878 (4) (482 SE2d 498) (1997).

       See Watson, supra, 226 Ga. App. at 28.

        Fortner v. McCorkle, 78 Ga. App. 76, 80 (2) (50 SE2d 250) (1948) (“ ‘from all the facts and circumstances it can reasonably be inferred that it is in the contemplation of the parties that the services are to be paid for’ ”); see Smith Dev. v. Flood, 198 Ga. App. 817, 820 (3) (b) (403 SE2d 249) (1991) (services rendered gratuitously do not give rise to an implied promise).

        Watson, supra, 226 Ga. App. at 28.

       (Citations omitted.) Id.; see White, supra, 219 Ga. App. at 124 (1) (“The unjust enrichment doctrine provides that a party shall not be allowed to profit or enrich itself inequitably at another’s expense.”).

       165 Ga. App. at 782-783 (2).

       Id. at 783.

       See also Ga. Tile Distrib. v. Zumpano Enterprises, 205 Ga. App. 487, 488-489 (1) (422 SE2d 906) (1992) (“there is no inherent inconsistency in concluding that no contractual agreement was reached but one party has benefited at the expense of another who must in fairness be compensated”).

       See Cunningham v. Tara State Bank, 212 Ga. App. 470, 471 (442 SE2d 18) (1994).