text:
    A94A0405.
    EDMONSON v. THE STATE.
    (442 SE2d 300)
   Andrews, Judge.

Edmonson was charged in a seven-count indictment with kidnapping, false imprisonment, rape, aggravated sodomy, aggravated assault with a deadly weapon, aggravated assault with intent to rape, and possession of a knife during the commission of a crime. He was found guilty by a jury on all counts. The trial court merged the false imprisonment count into the kidnapping count, merged the aggravated assault with intent to rape count into the rape count, and entered judgment and sentence on the convictions for kidnapping, rape, aggravated sodomy, aggravated assault with a deadly weapon, and possession of a knife during the commission of a crime. Edmonson appeals from the judgment entered on the convictions.

All of the counts of the indictment were based on evidence that Edmonson abducted his victim at knifepoint, transported her to another location, and sexually assaulted her. The victim testified that while she was doing laundry at a laundromat, Edmonson grabbed her from behind around the neck, threatened her with a knife, and forced her to drive her car to a motel room, where against her will Edmonson forcibly placed his penis to her mouth and raped her. Edmonson testified that he did not attack the victim with a knife or otherwise assault or abduct her. He admitted he had sexual relations with the victim in the motel room, but claimed she voluntarily accompanied him to the room and that the sexual relations were consensual. Edmonson’s knife was identified by the victim and admitted into evidence. Edmonson testified he had the knife with him during the events at issue because he used it in his work.

1. Edmonson claims the trial court erred in overruling his objection to expert testimony presented by the State from a registered nurse, who also acted as a rape counselor. The nurse testified that she had counseled 20 to 30 victims of rape, including the present victim, and that in her experience she observed that rape victims exhibited certain common patterns of behavior as a result of being raped. The nurse and other witnesses testified as to behavior of the victim they observed after she claimed to have been raped. The behavior of the victim observed by the witnesses was consistent with some of the behavior patterns the nurse testified existed in other rape victims. The clear purpose of the State in introducing the nurse’s expert opinion testimony was to produce evidence from which the jury could conclude that since the present victim displayed behavior common to other rape victims, she was telling the truth when she testified that Edmonson raped her.

The only objection to the expert opinion which the defendant raised at trial and argues on appeal is that it invaded the province of the jury on the ultimate issue of whether or not the victim was raped by Edmonson. The nurse offered an opinion as to the existence of certain typical patterns of behavior exhibited by victims of rape, and she testified as to behavior she observed in the present victim. Pretermitting whether the opinion was otherwise admissible, this did not amount to an expert opinion as to whether the victim had been raped. See Remine v. State, 203 Ga. App. 30, 31 (416 SE2d 326) (1992); Hall v. State, 201 Ga. App. 626, 627 (411 SE2d 777) (1991); Cooper v. State, 200 Ga. App. 560, 561 (408 SE2d 797) (1991); Gordon v. State, 210 Ga. App. 224, 226-227 (435 SE2d 742) (1993); compare Allison v. State, 256 Ga. 851, 853 (353 SE2d 805) (1987); Smith v. State, 259 Ga. 135, 138 (377 SE2d 158) (1989); Sims v. State, 260 Ga. 782, 784 (399 SE2d 924) (1991); McCartney v. State, 262 Ga. 156, 159 (414 SE2d 227) (1992). The trial court did not err in overruling the objection on this basis.

2. Edmonson argues it was error for the trial court to give an “Allen” charge (see Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896)) after the jury had been deliberating for approximately two-and-one-half hours and informed the court its vote was situated at nine to three on all counts. After giving the charge, the trial court asked if there were any objections and defense counsel objected on the basis that an “Allen” charge should only be given with the general instructions before the jury commences deliberation.

On appeal, Edmonson argues that we should adopt the position of the Commentary to the ABA Standards for Criminal Justice supporting his objection (see Harris v. State, 263 Ga. 526, 528 (435 SE2d 669) (1993)), and further argues that authority to the contrary such as Spaulding v. State, 232 Ga. 411, 413-414 (207 SE2d 43) (1974) should be overruled. Giving an “Allen” charge after the jury has begun its deliberations has been approved in numerous decisions of the Georgia Supreme Court and this court. Black v. State, 255 Ga. 668, 670-671 (341 SE2d 436) (1986); Kilpatrick v. State, 255 Ga. 344, 345 (338 SE2d 274) (1986); Spaulding, supra; Tucker v. State, 208 Ga. App. 224, 226 (430 SE2d 84) (1993). Without addressing the merits of these contentions, we find no error, since this court is without authority to overrule decisions of the Georgia Supreme Court which control this issue and must be followed. See Harden v. Burdette, 204 Ga. App. 733, 735 (420 SE2d 626) (1992).

3. Edmonson contends the trial court erred by not merging both aggravated assault charges and the kidnapping charge into the rape charge as a matter of fact pursuant to the substantive bar against double jeopardy set forth by OCGA § 16-1-7 (a) (1). First, the trial court did, sua sponte, merge the aggravated assault with intent to rape charge into the rape charge, so Edmonson’s contention in this regard is moot. Secondly, Edmonson did not raise in the trial court (either before, during or after the trial) the claims that the aggravated assault with a deadly weapon and kidnapping counts should have been merged with the rape count. Accordingly, these enumerations are not properly before us for appellate review. LeGallienne v. State, 180 Ga. App. 108, 111 (348 SE2d 471) (1986); compare McClure v. State, 179 Ga. App. 245, 246 (345 SE2d 922) (1986) (claim that the substantive bar against double jeopardy was violated was not waived when raised in the trial court after close of the evidence). To the extent Redding v. State, 188 Ga. App. 805 (374 SE2d 339) (1988), stands for the proposition that this court will review a claim asserting violation of the substantive bar against double jeopardy which was not raised in the trial court, it is overruled. See id. at 806 (Beasley, J., dissenting).

Nevertheless, we note that under the facts of the present case the victim was kidnapped at knifepoint and then raped at another location. The two offenses were separate and did not merge. Allen v. State, 233 Ga. 200, 202-203 (210 SE2d 680) (1974); compare State v. Sallie, 206 Ga. App. 732, 735 (427 SE2d 11) (1992); Fredrick v. State, 181 Ga. App. 600 (353 SE2d 41) (1987). There was also evidence that, subsequent to completing the offense of rape, Edmonson again threatened the victim with the knife; thus these two offenses were separate and did not merge as a matter of fact. Ellis v. State, 181 Ga. App. 826, 827-828 (354 SE2d 15) (1987); see Sylvester v. State, 168 Ga. App. 718 (310 SE2d 284) (1983).

4. Edmonson claims the trial court erred by denying his motion to suppress admission of the knife on the basis that it was obtained by an illegal search. When the knife was offered by the State for admission at trial, defense counsel stated that there was no objection to its admission; therefore the right to contest admission of the evidence on appeal was waived. Bowe v. State, 201 Ga. App. 127, 128 (410 SE2d 765) (1991); Mattingly v. State, 205 Ga. App. 777 (423 SE2d 709) (1992).

5. We find no error in the trial court’s denial of Edmonson’s motion for a new trial on grounds that he was prejudiced by juror misconduct during the course of the trial. The trial court conducted a hearing to investigate allegations that during the trial a witness for the State had communicated with jurors during a break in the proceedings. All the witnesses at the hearing were subject to cross-examination by defense counsel. The record shows that an investigating officer who testified for the State testified that he was standing in the hall of the courthouse during the trial when the jury came back from lunch. He stated that as they passed him in the hall, several of the jurors said hello and offered a handshake, and that he returned the hello and shook their hands. He testified that there was no discussion with any juror about the case. All of the jurors were individually questioned at the hearing. Two or three jurors who knew the witness testified that they may have seen and said hello to him as they passed. All of the jurors stated that they did not speak to the witness about the case.

Decided March 15, 1994.

J. Reese Franklin, for appellant.

Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Assistant District Attorney, for appellee.

Although there is a presumption of harm when an unauthorized communication occurs between a juror and a witness in a criminal trial, such communication does not invalidate an otherwise valid conviction unless the defendant was actually prejudiced by the communication. Head v. State, 191 Ga. App. 262, 264 (381 SE2d 519) (1989); Mosley v. State, 184 Ga. App. 582, 584 (362 SE2d 80) (1987). “Such testimonial evidence is an acceptable means of proof to meet the burden cast upon the state, in such circumstances, to rebut by proof a presumption of harm. [Cits.] Appellant shows no injury requiring a new trial, and we conclude the trial court was correct in finding the state met its burden of proof and that no prejudice to the defendant was shown by the juror’s misconduct. [Cits.]” Hardy v. State, 242 Ga. 702, 704 (251 SE2d 289) (1978).

Judgment affirmed.

Pope, C. J., Birdsong, P. J., Beasley, P. J., Cooper, Johnson, Blackburn and Smith, JJ., concur. McMurray, P. J., concurs in the judgment only.

       Defense counsel objected at trial that the nurse was not qualified as an expert to render an opinion as to whether rape victims exhibit common patterns of behavior. The trial court allowed the nurse to render the opinion, but the competency issue was not raised on appeal. Although the nurse did not label or attempt to describe her testimony as such, her opinion as to patterns of behavior was similar to the sort of psychological stress symptoms commonly referred to as the rape trauma syndrome. The admissibility of expert opinion testimony with respect to this syndrome has been addressed in other states with mixed results, but has apparently not been addressed by a Georgia appellate court. See Admissibility, at Criminal Prosecution, of Expert Testimony on Rape Trauma Syndrome, 42 ALR4th 879; Rape Trauma Syndrome, 12 AmJur3d 401, Proof of Pacts. We do not reach the admissibility issue in the present case since Edmonson did not raise it by objecting at trial that the type of opinion evidence presented was based on principles or techniques that had not “reached a scientific stage of verifiable certainty” or did not “rest upon the laws of nature” (see Harper v. State, 249 Ga. 519, 525-526 (292 SE2d 389) (1982)), or that the prejudicial effect of admitting such evidence outweighed its reliability and probative value.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A94A1255, A94A1256.
    WRIGHT v. MILLINES et al. (two cases).
    (442 SE2d 304)
   McMurray, Presiding Judge.

This is a tort action arising from an automobile collision. Plaintiff Wright sued defendant Millines, a Fulton County resident and the driver of the car in which he was a passenger, as well as the driver of the other car, defendant McMichael, a Douglas County resident. Following an earlier appeal in the case, the trial court entered judgment on the jury verdict in favor of plaintiff. Defendant Millines then moved for j.n.o.v. and defendant McMichael moved for a new trial. The trial court granted the motion for j.n.o.v. of defendant Millines and denied defendant McMichael’s motion for new trial. Defendant McMichael then moved for the transfer of the action from Fulton County to Douglas County on the ground that venue was no longer proper. The trial court set aside the verdict against defendant McMichael and transferred the case to the Superior Court of Douglas County.

Plaintiff then filed these two direct appeals. In Case No. A94A1255 appeal is taken from the grant of defendant Millines’ motion for j.n.o.v. Case No. A94A1256 is an appeal from the order transferring the case to Douglas County. Held:

Decided March 15, 1994.

Goldstein & Redic, Dennis M. Redic, Patrick R. Matarrese, for appellant.

Eason, Kennedy & Associates, Richard B. Eason, Jr., Greer, Klosik & Daugherty, Richard G. Greer, for appellees.

Both appeals are premature as there is no final judgment and the case remains pending in the trial court, albeit the Superior Court of Douglas County to which the case was transferred rather than the Superior Court of Fulton County where plaintiff filed his notices of appeal. There has been no determination that there is no just reason for delay and express direction of final judgment pursuant to OCGA § 9-11-54 (b). Therefore, the orders which plaintiff would appeal are interlocutory and not appealable without compliance with the interlocutory appeal procedure of OCGA § 5-6-34 (b). Griffith v. Ga. Bd. of Dentistry, 175 Ga. App. 533 (333 SE2d 647).

Appeals dismissed.

Pope, C. J., and Smith, J., concur.


text:
    A93A2214, A93A2528.
    SOUTHMARK CORPORATION v. TROTTER, SMITH & JACOBS et al. (two cases).
    (442 SE2d 265)
   McMurray, Presiding Judge.

Plaintiff Southmark Corporation appeals the grant of summary judgment in favor of the defendants in two legal malpractice actions. The now-dissolved law firm of Trotter, Smith & Jacobs, as well as numerous former shareholders and associates of the firm, are defendants in each case. The complaints state claims for professional negligence, breach of fiduciary duty, and breach of contract which are predicated on services rendered by the defendants with regard to certain business transactions involving plaintiff prior to its filing for Chapter 11 bankruptcy on July 14, 1989.

Both actions were filed following the bankruptcy court’s confirmation of plaintiff’s plan of reorganization and order of substantial consummation. Defendants moved for summary judgment in both cases based on plaintiff’s failure to identify claims against defendants in the bankruptcy case. In their motions, defendants maintained that the two actions were barred by the doctrines of judicial estoppel and res judicata because plaintiff failed to raise its claims against defendants in the bankruptcy proceeding when it had an obligation and opportunity to do so. Defendants argued that plaintiff failed to disclose its claims as a potential asset in any of several original or amended schedules, disclosure statements, or plans of reorganization despite the requirement of the bankruptcy laws that it do so.

The superior court granted defendants’ motions for summary judgment in both cases on the grounds of judicial estoppel and res judicata. As to Case No. A93A2528, an additional ground was stated, that of the plaintiff’s failure to comply with the requirements of OCGA § 9-11-9.1. Plaintiff appeals the grant of summary judgment to the defendants in both cases and presents its arguments in regard to each of the three grounds stated in the superior court’s order. Held:

Summary judgment was correctly granted in favor of defendants in both cases under the doctrine of judicial estoppel. We first caution as to the semantical dangers which surround the term “judicial estoppel” and similar matters of issue preclusion. While a recent decision of this court has used the term (see In the Interest of K. M. H., 209 Ga. App. 194, 195 (2) (433 SE2d 117)), that case was not referring to exactly the same concept as involved here. Our earlier decision referenced a concept under Georgia law, while we are dealing here with a concept from federal law which has no exact equivalent under Georgia law.

We apply federal law in order to give the proper effect to the judgment of the bankruptcy court sitting in Texas which ruled upon plaintiff’s bankruptcy case. The goal is to afford the judgment of the bankruptcy court the same effect here as would result in the court where that judgment was rendered. See Jerome J. Steiker Co. v. Eccelston Properties, Ltd., 593 NYS2d 394, 398. Accord Mayor &c. of Forsyth v. Monroe County, 260 Ga. 296 (392 SE2d 865).

The federal doctrine of judicial estoppel precludes a party from asserting a position in a judicial proceeding which is inconsistent with a position previously successfully asserted by it in a prior proceeding. “Thus, the ‘essential function and justification of judicial estoppel is to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.’ Allen v. Zurich Insurance Co., 667 F.2d 1162, 1167 (4th Cir. 1982).” Continental Illinois Nat. Bank &c. Co. of Chicago v. Wind-ham, 668 FSupp. 578, 581. The primary purpose of the doctrine is not to protect the litigants, but to protect the integrity of the judiciary. In re Doemling, 157 B.R. 565; In re Galerie Des Monnaies of Geneva, Ltd., 62 B.R. 224. The doctrine does not require reliance or prejudice before a party may invoke it. In re Kessel, 108 B.R. 281.

These cases involve primarily the obligation placed upon the debtor in a Chapter 11 bankruptcy case to file a list of assets in which it must disclose any litigation which might arise from pre-bankruptcy matters. Compliance with disclosure requirements is essential to maintaining a bankruptcy case. In re Roberts, 117 B.R. 677; In re Hubbard, 96 B.R. 739. In the light of the stringent disclosure requirements under Chapter 11, the failure to disclose such information is viewed as amounting to a denial that such claims exist. This de facto denial triggers the application of several types of issue preclusion to bar subsequent attempts to prosecute such actions. See Oneida Motor Freight v. United Jersey Bank, 848 F2d 414; Westland Oil Dev. Corp. v. MCORP Mgmt. Solutions, 157 B.R. 100, 102; In re Stand-field, 152 B.R. 528. Plaintiff’s assertion that it never denied having claims against defendants is predicated upon statements in its bankruptcy schedules that the value of its contingent and unliquidated claims was unknown and statements in disclosure statements and plan of reorganization that it intended to pursue any claims which it could identify. Nonetheless, there was no reference to any claim against defendants and this failure to disclose precludes subsequent assertion of those claims. See also In re H. R. P. Auto Center, 130 B.R. 247, 253-254; In re Louden, 106 B.R. 109, 112.

While plaintiff denies that it had any knowledge of the claims against defendants, it is not clear that this assertion addresses a relevant issue since it is not clear from the relevant case law that such lack of knowledge would prevent the application of the doctrine of judicial estoppel. In any event, this assertion is contradicted by uncontroverted evidence showing that plaintiff had knowledge of the claims against defendant prior to confirmation of plaintiff’s final plan of reorganization. While there is conflicting evidence concerning what level of knowledge plaintiff had at various times, the report of the court-appointed examiner raised issues as to such claims prior to confirmation of the final plan of reorganization, and plaintiff had actual knowledge of the difficulties with the business transactions which form the foundation for these actions. While plaintiff attempts to excuse its failure to list the claims against defendants in the bankruptcy court by invoking the theory that it exercised “reasonable diligence” in investigating the potential causes of action which had been brought to its attention, this begs the question since plaintiff’s knowledge of even a potential claim was subject to the disclosure requirements and provides a sufficient basis for the application of judicial estoppel. Pako Corp. v. Citytrust, 109 B.R. 368, 377; In re Hoffman, 99 B.R. 929, 933.

Nor can we accept the suggestion that plaintiff’s argument that the circumstances are such as to warrant a deliberate change of position by it on the issue of whether it has claims against defendants without imposition of judicial estoppel. Cases adopting such a theory involve parties who are able to demonstrate how they were actively misled by the information available to them. Here, any deficiency in plaintiff’s perceptions is only shown as arising from the press to complete the process within the bankruptcy court in a time frame which was advantageous to plaintiff.

Decided March 4, 1994

Reconsideration denied March 16, 1994

Casey, Gilson & Williams, James E. Gilson, Matthew D. Williams, Jones, Day, Reavis & Pogue, W. Rhett Tanner, John H. Williamson, Richard M. Kirby, for appellant.

Bondurant, Mixson & Elmore, Emmett J. Bondurant, H. Lamar Mixson, John E. Floyd, Mary J. Bradbury, for appellees.

While the superior court stated alternative grounds for its grant of summary judgments án favor of defendants we need not reach the enumerations of error directed to the alternative grounds. Our conclusion that plaintiff’s actions are barred by the doctrine of judicial estoppel requires the affirmance of the judgments of the superior court.

Judgments affirmed.

Johnson and Blackburn, JJ., concur.


author: Cooper, Judge.

text:
    A93A2304.
    WILLINGHAM v. THE STATE.
    (442 SE2d 4)
   Cooper, Judge.

Appellant was convicted by a jury of battery and illegal possession of an alcoholic beverage. He appeals from the judgment of conviction and raises as his sole enumeration of error the trial court’s denial of his motion for mistrial.

Prior to trial, the State filed a notice of intent to present evidence of a similar transaction which involved a battery committed by appellant against a different victim. Appellant filed a motion in limine to exclude any testimony relating to the similar transaction until the court ruled on the admissibility of the similar transaction. The trial court granted the motion and instructed the prosecutor to instruct her witnesses not to mention any other incidents involving appellant.

After the victim testified during direct examination that he had known appellant for approximately 15 years, the prosecutor asked the victim if he had ever witnessed appellant beat up anyone else. Appellant’s counsel objected and moved for a mistrial which the trial judge denied. The judge then instructed the prosecutor not to ask the question. At the conclusion of the victim’s testimony, appellant’s counsel again moved for a mistrial which the judge denied. The judge then heard the State’s evidence on the similar transaction and ruled that the evidence was not admissible. Appellant renewed his motion for mistrial, and the judge denied the motion. Following the lunch break, appellant again renewed his motion for a mistrial and asked that the judge give a curative instruction and rebuke the prosecutor. When the jury returned to the courtroom, the judge instructed the jury as follows: “The defendant in this case is on trial for this incident and this incident alone. You will recall at the end of [the victim’s] redirect examination by the assistant solicitor there was a question asked and the objection was sustained to that question, and I am going to remind you now that you are not to take — you’re to totally disregard that question and not to assume anything from it about any other incidents that are not relevant here at all, if indeed there were any incidents, and there has been no evidence that there has been. So you are to disregard that question entirely. I will also remind the prosecutor that was an improper question and you’re not to do that again. (Indention omitted.)” To preserve the issue for appeal, appellant renewed his motion for a mistrial, which was denied.

Decided February 10, 1994

Reconsideration denied March 16, 1994.

Whelchel, Dunlap & Gignilliat, Thomas S. Bishop, John F. Kennedy, for appellant.

Jerry Rylee, Solicitor, Inez D’Entremont, Assistant Solicitor, for appellee.

“Where, as here, counsel has [asked a question] regarding prejudicial matters not in evidence before the jury, OCGA § 17-8-75 provides the trial court with discretion to order a mistrial. His refusal to do so, coupled with appropriate curative instructions and admonishment of state’s counsel, absent manifest abuse, will not be reversed. . . . [Cit.]” Schirato v. State, 260 Ga. 170, 172 (4) (391 SE2d 116) (1990). The evidence the State tried to elicit was clearly irrelevant and inadmissible, and we strongly disapprove of the State’s attempt to place this evidence before the jury. However, we find the trial court’s instruction to the jury and rebuke of the prosecutor were sufficient to remove any improper impression from the minds of the jurors. Pruitt v. State, 176 Ga. App. 317 (2) (335 SE2d 724) (1985). Appellant’s reliance on Perry v. State, 154 Ga. App. 559 (269 SE2d 63) (1980) is misplaced. In that case, the prosecutor asked the defendant on cross-examination “if he previously had been charged with, pled guilty to, or convicted of possession of marijuana” and this court held that the question constituted prejudicial matter that placed the defendant’s character in issue. Id. at 560-561. However, we find that the question asked in the case sub judice was not so prejudicial as. the question posed in Perry, and the trial judge did not abuse his discretion in not granting a mistrial. See Schirato, supra.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A2019.
    ENTERPRISE FINANCIAL CORPORATION v. GEORGIA NUT & BOLT COMPANY et al.
    (441 SE2d 908)
   Cooper, Judge.

Appellant Enterprise Financial Corporation appeals from the trial court’s grant of directed verdict to the appellees, Georgia Nut & Bolt Company and two individual guarantors, in this suit to recover a deficiency judgment following the sale of Georgia Nut’s collateral.

Enterprise made several loans to Georgia Nut and acquired a security interest in its inventory, accounts receivable, and equipment and machinery. Appellees Walter Hendricks, Jr., and Richard Hendricks, the two principals of Georgia Nut, personally guaranteed the loans. Georgia Nut defaulted and Enterprise repossessed the collateral and sold it. Enterprise then brought this action against Georgia Nut and the two guarantors for the amount of the deficiency. Prior to the sale, the principal and interest owed on the loan was $330,219.51. Enterprise sold the collateral for $195,000. At the time of trial, the amount of deficiency was $155,000.

At trial, the president of Enterprise testified that the keys to Georgia Nut’s facility were turned over to Enterprise on April 17, 1989, and that Enterprise took possession of the collateral on that date. Enterprise hired several former employees of Georgia Nut, including George Stoudemire, to conduct a physical inventory. Stoudemire testified that he began working for Enterprise around the first of May, possibly May 4 or 5, and was in charge of supervising the inventory process. He testified that the inventory took three weeks to complete and was finished around the end of May. An independent appraiser conducted an appraisal, dated May 30, of Georgia Nut’s inventory and machinery and equipment. Utilizing the inventory prepared by Stoudemire, the appraiser gave the inventory a quick sale auction value of $40,000. He appraised the value of the machinery and equipment at $13,835. Enterprise produced evidence that as of July 28, the fair market value of Georgia Nut’s accounts receivable was $31,399.33. Shortly after Stoudemire and the other former Georgia Nut employees came to work for Enterprise for the purpose of conducting the physical inventory, they began to operate their own nuts and bolt business from Georgia Nut’s location under the name of GNB Fasteners, Inc. (GNB). Although GNB was not incorporated until July 1989, Stoudemire testified that GNB began making sales in May. In fact, documentary evidence in the record establishes that GNB made some sales as early as May 5. Stoudemire testified that most of what GNB sold was purchased from outside suppliers; however, he admitted that some of Georgia Nut’s inventory could have been sold. He testified that he did not think more than $10,000 of Georgia Nut’s inventory was sold, but he really had no idea how much was sold. Stoudemire acknowledged that he had previously testified in his deposition that GNB had been selling items out of Georgia Nut’s inventory. He further testified that part of his work for GNB involved trying to sell Georgia Nut’s inventory to Georgia Nut’s former customers. When Stoudemire was initially questioned about a GNB invoice dated May 18, 1989, he testified that the items reflected on the invoice had been purchased from an outside supplier. On further cross-examination by defense counsel, however, Stoudemire admitted that he had not initially noticed that the invoice reflected that GNB had sold 2,300 pieces of Georgia Nut’s inventory. He also testified that another GNB invoice dated May 18 showed GNB had sold 250 pieces of Georgia Nut’s inventory. Stoudemire admitted that he could not tell whether or not another GNB invoice reflected sales of Georgia Nut’s inventory. Finally, Stoudemire admitted that additional sales of Georgia Nut’s inventory had been made by GNB prior to the foreclosure sale. Although Stoudemire testified that he knew GNB would have to pay for whatever it took from Georgia Nut’s inventory, there is no evidence in the record that any such payments were made or that Georgia Nut was credited for such payments against its underlying debt.

On July 18, 1989, Enterprise, after giving notice to the debtor and the guarantors, sold Georgia Nut’s collateral at auction to Stoudemire, the highest bidder, for $195,000. At trial, after the close of Enterprise’s case, the trial court granted the appellees’ motion for directed verdict. The trial court found that there had been a number of dispositions prior to the July 18 foreclosure sale and that Enterprise had failed to give Georgia Nut or the guarantors notice of such sales as required by OCGA § 11-9-504 (3). The court further found that the sale of the collateral was not commercially reasonable and that Enterprise was precluded from obtaining a deficiency judgment because it had not rebutted the presumption that the value of the collateral was equal to the indebtedness since it failed to prove the value of the collateral at the time of repossession.

1. Enterprise argues that the sale of the collateral was commerr daily reasonable and that, even if it was not, Enterprise was still entitled to a deficiency judgment because it rebutted the presumption that the value of the collateral equalled the amount of indebtedness. “Where the commercial reasonableness of a sale is challenged by the debtor, the party holding the security interest has the burden of proving that the terms of the sale were commercially reasonable and that the resale price was the fair and reasonable value of the collateral. The secured party must also prove the value of the collateral at the time of repossession and that the value of the goods does not equal the value of the debt.” Richard v. Fulton Nat. Bank, 158 Ga. App. 595, 596 (281 SE2d 338) (1981). “[W]hen a creditor forecloses on secured property without the statutorily required notice to the debtor, or when the creditor conducts a commercially unreasonable sale, a rebuttable presumption is created that the value of the collateral is equal to the indebtedness. The creditor may rebut the presumption by introducing (1) evidence of the fair and reasonable value of the secured property, and (2) evidence that the value of the collateral was less than the debt. If the creditor rebuts the presumption, he may maintain an action against the debtor or guarantor for the deficiency (the difference between the fair and reasonable value of the collateral and the amount of the debt).” Business Dev. Corp. of Ga. v. Contestabile, 261 Ga. 886 (413 SE2d 447) (1992). “If the creditor conducts a commercially unreasonable sale and does not rebut the presumption ... , he loses the right to recover the deficiency against the debtor and the guarantor.” (Emphasis omitted.) Id. at 886-887. “Proof of the value of the collateral is required to be the value at the time of repossession. Granite Equipment Leasing [Corp. v. Marine Dev. Corp., 139 Ga. App. 778 (230 SE2d 43) (1976)].” First Nat. Bank v. Rivercliff Hardware, 161 Ga. App. 259, 260 (287 SE2d 701) (1982).

Enterprise first argues that it is entitled to a deficiency because it presented evidence that the amount of the debt exceeded the fair market value of the collateral at the time of disposition. However, this contention ignores the fact that when the debtor challenges the commercial reasonableness of the sale, the secured party has the burden of proving that the resale price was the reasonable value of the collateral at the time of repossession and that the value of the collateral did not equal the value of the debt. See Richard, supra at 595-596. Thus, in order to seek a deficiency judgment, Enterprise was required to show what the value of the collateral was at the time of repossession. See Borden v. Pope Jeep-Eagle, 200 Ga. App. 176 (5) (407 SE2d 128) (1991).

Enterprise argues that it established the collateral’s value at the time of repossession because it did not actually take possession of the collateral until early May, the physical inventory was completed May 1, and there is no evidence that the value of the collateral changed between the date of the appraisal, based on the May 1 inventory, and the July 18 foreclosure sale. This contention ignores the undisputed testimony at trial. Enterprise’s president testified that the keys were turned over to Enterprise on April 17 and that it took possession of the collateral on that date. While Enterprise may not have had the locks on Georgia Nut’s facility changed until several days later, this does not mean that it did not have possession of the collateral. It is clear that the physical inventory was not complete as of May 1 since Stoudemire testified that he was in charge of the inventory process, that he did not begin working for Enterprise until May 4 or 5, and that the inventory, which took three weeks to complete, was finished around the end of May. Moreover, the independent appraiser’s report is dated May 30. The record thus establishes that the independent valuation of Georgia Nut’s assets took place approximately a month and a half after Enterprise took possession of the collateral.

While the date of the appraisal alone does not show that Enterprise failed to establish the value of the collateral at the time of repossession, we cannot say on the face of this record that Enterprise has shown that the value of the collateral did not change between the time of repossession and the time of the appraisal. The record establishes that Enterprise gave Stoudemire and the other former Georgia Nut employees unrestricted access to Georgia Nut’s facility and collateral for the purpose of conducting a physical inventory. During the time these individuals were conducting the inventory, the month of May, they began to operate their own business of an identical nature from Georgia Nut’s location. Stoudemire admitted selling some of Georgia Nut’s inventory and did not really know how much of the inventory they sold. Furthermore, Stoudemire admitted that several GNB invoices for the month of May indicated that GNB had sold some of Georgia Nut’s inventory during that time as its own. Moreover, there is no evidence in the record that Georgia Nut was ever credited for such sales of its inventory against its underlying debt. The record thus establishes that Enterprise allowed an interested third party to sell Georgia Nut’s collateral as its own during the time that this third party was preparing a physical inventory of Georgia Nut’s assets and prior to the date of the appraisal based on that inventory. While we recognize that conducting an inventory of nuts and bolts might take some time to complete, we do not believe that allowing the party conducting the inventory to sell such inventory as its own without any accounting thereof is commercially reasonable. Although it is unclear from the record how much of Georgia Nut’s inventory was sold by GNB, we cannot say that Enterprise established that the value of the inventory did not change between the date of repossession and the date of appraisal and thus cannot say that Enterprise established the value of the collateral at the time of repossession. See First Nat. Bank, supra at 261. Accordingly, we find the trial court properly granted a directed verdict to the appellees.

2. In light of our holding in Division 1, we need not address Enterprise’s remaining enumeration of error that it was not required to give Georgia Nut or the guarantors notice of the prior dispositions by GNB under OCGA § 11-9-504 (3).

Judgment affirmed.

Smith, J., concurs. Beasley, P. J., concurs in judgment only.

Decided March 16, 1994.

Smith, Gambrell & Russell, E. Kendrick Smith, for appellant.

Fine & Block, Paul R. Jordan, for appellees.


author: Cooper, Judge. Smith, Judge,

text:
    A93A2048.
    FONSECA v. THE STATE.
    (441 SE2d 912)
   Cooper, Judge.

Defendant pled guilty to one count of armed robbery, one count of kidnapping, and two counts of motor vehicle theft. He was sentenced to twelve years in prison and eight years probation. As a condition of probation, he was ordered to make restitution jointly and severally with his co-defendant in the amount of $6,914 at the rate of $75 a month. He appeals from his conviction and sentence.

At the plea hearing, the prosecutor presented the facts of the case. Defendant and a co-defendant, who had rented a room from the victims, Mr. and Mrs. Huang, asked Mr. Huang to give them a ride in his Jeep to an apartment complex. When they arrived at the complex, defendant stuck a knife in Mr. Huang’s ribcage, and he and the co-defendant tied up Mr. Huang and drove back to the Huangs’ apartment. They left Mr. Huang in the Jeep, confronted Mrs. Huang with a knife, and forced her to write out two $5,000 checks. They also took $500 in cash, a camera, and two rings. They tied up Mrs. Huang and left her in the bedroom. They then took Mrs. Huang’s keys, and defendant drove off in her car, a Honda Civic, while the co-defendant drove off in the Jeep, with Mr. Huang in the back seat.

1. Defendant first contends that his conviction for motor vehicle theft of Mrs. Huang’s Honda should be set aside because it was a lesser included offense of armed robbery. Specifically, defendant contends that the evidence used to establish his armed robbery conviction was the taking of Mrs. Huang’s keys at knifepoint and that this same evidence was also used to establish theft of the Honda. This contention is without merit. “In determining whether a crime is established by proof of the same or less than all the facts required to establish the commission of another crime within the meaning of OCGA § 16-1-6, we look to the actual evidence introduced at trial. If the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under OCGA § 16-1-6.” (Citations and punctuation omitted.) Dawson v. State, 203 Ga. App. 146, 147 (2) (416 SE2d 125) (1992). Here, defendant committed armed robbery when he took the two checks from Mrs. Huang at knifepoint. He later committed motor vehicle theft when, after he tied up Mrs. Huang and left her in the bedroom, he took her keys and drove off in her Honda. See Holt v. State, 239 Ga. 606 (238 SE2d 399) (1977); see also Anson v. State, 259 Ga. 471 (2) (383 SE2d 893) (1989). “The evidence establishing the commission of the one crime is not the same as the evidence which established commission of the other crime.” Holt, supra at 607. Since the motor vehicle theft was not a lesser included offense as a matter of fact, the court did not err in sentencing defendant for both offenses.

2. Defendant also contends the trial court erred in ordering restitution as a condition of probation without holding a restitution hearing or considering the factors set forth in OCGA § 17-14-10. The State, citing Westmoreland v. State, 192 Ga. App. 173 (2) (384 SE2d 249) (1989), argues that defendant waived this issue by failing to object to it below. Alternatively, the State contends the record is sufficient to show the trial court properly considered the requisite factors in ordering restitution.

Although defendant did not object to the restitution order when given, we do not find defendant waived the right to raise this issue on appeal. This court has previously held that the defendant’s silence when the restitution order was given does not render the statutory error harmless or cut off the right to appeal such error. Baker v. State, 183 Ga. App. 100 (357 SE2d 896) (1987). Moreover, “unlike the facts in Westmoreland . . . , defendant in this case did not induce error by acquiescing with the prosecutor’s statement that defendant consented to the amount of the award.” Slater v. State, 209 Ga. App. 723, 726 (4) (434 SE2d 547) (1993).

“OCGA §§ 17-14-8 through 17-14-10 contemplate a hearing and specific written findings by the court in determining whether it will order restitution and, if so, the amount thereof.” (Citation and punctuation omitted.) Bridges v. State, 208 Ga. App. 555, 556 (1) (431 SE2d 164) (1993). Section 17-14-10 sets forth the factors to be considered by the court in determining the nature and amount of restitution, including the offender’s present financial condition and future earning capacity and the amount of damages suffered by the victim. The trial court did not hold a restitution hearing, and the only mention of restitution at the sentencing hearing was the order itself. The court further did not enter specific written findings under OCGA § 17-14-10.

We reject the State’s contention that the record is sufficient to show the trial court considered the requisite factors. Contrary to the State’s contention otherwise, the trial court’s inquiry at the sentencing hearing into defendant’s prior employment appears to have been only to determine how well defendant spoke English. Moreover, the court only made such inquiry after it had already ordered restitution. Although the record does contain a victim impact statement and defendant’s application for appointment of counsel and certificate of financial resources, the record does not reveal that the court considered such factors at the sentencing hearing when it ordered restitution. See Gould v. State, 190 Ga. App. 611 (381 SE2d 442) (1989). Accordingly, the case is remanded for a hearing and specific written findings pursuant to OCGA § 17-14-10. See Bridges, supra at 556 (1).

Decided March 16, 1994.

Henderson, Weinberg, Cohen & Hart, Daniel L. Henderson, for appellant.

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

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

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

Smith, Judge,

concurring specially.

I concur fully in Division 1 of the majority opinion. I concur as well in the majority’s conclusions in Division 2 that appellant has not waived the right to raise on appeal the issue of the propriety of the restitution order, and that the case must be remanded for written findings of fact as required by OCGA § 17-14-8 addressing the factors set forth in OCGA § 17-14-10. However, the record does not reveal the precise information available to the trial court in considering restitution, although it does show documents relevant to several of the required factors. It may be that sufficient information was presented to the court to allow consideration of the required factors without the necessity of another hearing. As stated in Gould v. State, 190 Ga. App. 611 (381 SE2d 442) (1989) and Garrett v. State, 175 Ga. App. 400 (1) (333 SE2d 432) (1985), the trial judge is the best judge of whether a hearing is necessary upon remand or whether sufficient information exists in the present record to enable the required findings to be made. I would defer to the trial court’s judgment on that issue and would not order that a new hearing be held.


author: Blackburn, Judge.

text:
    A94A0165.
    LITTRELL v. GHRIST.
    (442 SE2d 306)
   Blackburn, Judge.

Randy Littrell appeals the trial court’s order striking his answer and counterclaim and entering a default judgment on William Ghrist’s complaint, and the trial court’s denial of his motion for new trial.

Decided March 16, 1994.

Robert F. Oliver, for appellant.

English, Tunkle & Smith, Richard Tunkle, for appellee.

Ghrist filed the underlying action to recover damages for injuries he allegedly received as a result of Littrell’s alleged assault and battery upon his person. The trial court determined that defendant Littrell failed to comply with its order to file a pretrial information sheet form and failed to attend a calendar call as previously ordered. Upon this determination, the trial court ordered that Littrell’s answer and counterclaim be stricken and that a default judgment be entered in Ghrist’s favor. The trial court left open the amount of damages until a hearing on that issue.

Littrell contends that the trial court’s order striking his answer and counterclaim imposed overly harsh sanctions. We agree. The present case is controlled by our opinion in All South Mini Storage ‡‡2, Ltd. v. Woodcon Constr. Sues., 205 Ga. App. 393 (422 SE2d 282) (1992), in which we reversed the trial court’s order striking the defendant’s answer and dismissing its counterclaim for the defendant’s failure to appear at the pretrial conference. We noted that the trial court’s power to impose less drastic sanctions, such as contempt and attorney fees, was preferred as they allowed the presentation of the merits of the case. Id. at 394. See also Triple A Distrib. v. Carrier Reps, 193 Ga. App. 348 (2) (387 SE2d 624) (1989).

The sanction imposed for appellant’s failure to appear at a pretrial conference was too harsh. See Ambler v. Archer, 230 Ga. 281 (196 SE2d 858) (1973); Boatright v. First Nat. Bank, 166 Ga. App. 167 (303 SE2d 506) (1983).

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


author: Johnson, Judge.

text:
    A94A0214.
    RAMSEY v. THE STATE.
    (442 SE2d 15)
   Johnson, Judge.

Ernest Ramsey appeals from his convictions of two counts of possession of cocaine with intent to distribute.

1. Ramsey contends that the evidence was insufficient to support his convictions. The evidence at the close of the State’s case showed that on February 27,1992, a police informant purchased crack cocaine from Ramsey. On March 2, 1992, the same informant again purchased crack cocaine from Ramsey. On both occasions, a police detective had placed a radio transmitter on the informant’s body and was able to monitor the conversations surrounding the transactions. The detective was also able to visually observe the transactions to a limited extent. Both the informant who purchased the cocaine and the detective who monitored the transactions testified at trial. We find that the evidence was sufficient to authorize a rational trier of fact to find Ramsey guilty beyond a reasonable doubt of possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Ramsey contends that it was error to admit into evidence a statement he made while in police custody for the charged offenses. After being read his Miranda rights, Ramsey gave the following statement: “I get my rocks fronted to me by a guy named Putt, from Chattanooga TN, and he drives a blue 1978 Buick Skylark. He has fronted me half an 8-ball before. I guess you could say that I sell for myself. Jim Betton sells for Putt to (sic).” (Exh. # 4.) The statement was reduced to writing by the detective and signed by Ramsey. Ramsey’s only objection to the statement’s admissibility is that it was unduly prejudicial and not relevant to the crimes charged.

“Where evidence is challenged on the ground that its probative value is outweighed by its tendency to unduly prejudice the jury, the trial court must exercise its discretion in determining admissibility.” (Citation omitted.) Carroll v. State, 261 Ga. 553, 554 (2) (408 SE2d 412) (1991). Since Ramsey was charged with possession of cocaine with intent to distribute, we find no abuse of discretion by the court in admitting the statement. However, even if the statement was not relevant to the crimes charged and was erroneously admitted, it would not necessarily follow that Ramsey’s conviction must be reversed. “[A] conviction will be affirmed despite error if the error is harmless beyond a reasonable doubt. When determining if error is harmless error, the test is not whether there was sufficient evidence on which the defendant could have been convicted but whether the evidence complained of may have influenced the verdict. . . . [Ojverwhelming evidence of the defendant’s guilt can negate the possibility that the error contributed to the conviction.” (Citations and punctuation omitted.) Greer v. State, 201 Ga. App. 775, 776 (2) (412 SE2d 843) (1991); Williams v. State, 185 Ga. App. 780, 781 (366 SE2d 200) (1988). In this case, a witness testified that he twice purchased cocaine from Ramsey and a detective testified that he observed both transactions taking place. “This is a plain and simple case of the evidence of the appellant’s guilt, exclusive of the custodial statement, being overwhelming.” (Citations and punctuation omitted.) Coney v. State, 198 Ga. App. 272, 273 (1) (401 SE2d 304) (1991). In view of the overwhelming evidence in this case, we hold that the admission of Ramsey’s statement did not contribute to the guilty verdict. Rife v. State, 203 Ga. App. 353, 354 (416 SE2d 864) (1992); Morgan v. State, 181 Ga. App. 150, 151 (351 SE2d 497) (1986).

Decided March 16, 1994.

Michael A. Corbin, for appellant.

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


author: Johnson, Judge. Beasley, Presiding Judge,

text:
    A94A0230.
    FLANAGAN v. THE STATE.
    (442 SE2d 16)
   Johnson, Judge.

Anthony Eugene Flanagan ran away from a bailiff as he was being escorted to a holding cell after being found in contempt of court and sentenced to serve ten days in jail. After a chase and scuffle, Flanagan was taken into custody. He was charged and convicted of obstruction of a law enforcement officer and escape.

1. Flanagan asserts that the trial court erred in denying his motion for a directed verdict of acquittal as to the escape charge, because the State failed to prove that he was in custody at the time of the incident, an essential element of the offense of escape.

We agree with the trial court that there was sufficient evidence presented by the State to submit that issue to the jury. Implicit in Flanagan’s argument, however, is the question whether he was in custody at the time he fled as contemplated by OCGA § 16-10-52, the escape statute under which he was indicted and convicted. It is clear that the statute intends to create a separate offense for those attempting to elude custody. OCGA § 16-10-52 expressly limits the application of this escape provision to those in custody either prior to or after having been convicted of a felony, misdemeanor or violation of a municipal ordinance. It does not contemplate those in custody for contempt, either civil or criminal.

It is well settled that we are bound to strictly construe criminal statutes. Cargile v. State, 194 Ga. 20, 23 (2) (20 SE2d 416) (1942). In this particular case, the authority to incarcerate for contempt is a power of the court authorized by OCGA § 15-10-2 (7). Even if we determined that the nature of Flanagan’s contempt was criminal rather than civil, resulting from his failure to obey an order of the court, his incarceration is not the result of the commission of a misdemeanor or a felony. See Banks v. Wells, 256 Ga. 164 (2), (3) (344 SE2d 652) (1986). While it is logical that a person in Flanagan’s situation should be subject to prosecution for escape, the correction of defects or unforeseen gaps in statutory criminal law is for the legislature rather than the courts. The State did not and could not prove that Flanagan had been charged with or convicted of a criminal offense at the time he fled. Consequently, an essential element of the crime is not supported by any evidence, and the escape conviction must be reversed.

2. In his second and third enumerations of error, Flanagan objects to the “moral and reasonable certainty” charge given to the jury. “Our Supreme Court disapproved of that language in Vance v. State, 262 Ga. 236 (2) (416 SE2d 516) (1992), but held that because the trial court’s charge repeatedly and accurately conveyed to the jury the concept of reasonable doubt and because there was overwhelming evidence of defendant’s guilt, the use of that language was harmless error.” McDonald v. State, 210 Ga. App. 689, 691 (5) (436 SE2d 811) (1993). Noting the lack of comfort with which this court applied Vance in McDonald, we nonetheless find that the evidence of Flanagan’s guilt with respect to the obstruction of a law enforcement officer charge was overwhelming. The charge as given, when viewed as a whole, did not result in reversible error.

Judgment affirmed in part and reversed in part. Andrews, J., concurs.

Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur, but not with all that is in the second paragraph of Division 1.

Appellant’s first enumeration is that the evidence is insufficient and the verdict is contrary to justice and equity. His argument, as set out in the brief, is two-fold: 1) the evidence did not show he was in custody as a matter of fact; that is, the evidence did not show he was “in custody”; and 2) the evidence did not show he was in custody as a matter of law; that is, even if he was “in custody” as a matter of fact, this is not the type of custody from which escape is prohibited.

The second question is not “implicit.” It is the alternative support for his first enumeration.

In addition, the evidence was not sufficient to submit the issue to the jury, because as a matter of law, he was not in custody as contemplated by the criminal statute.

So I cannot agree with these two statements made in the majority opinion, page 468. Otherwise, I concur.

Decided March 16, 1994.

Albert A. Myers III, for appellant.

Cheryl F. Custer, District Attorney, James M. Miskell, Assistant District Attorney, for appellee.

       Other jurisdictions have avoided this pitfall. The Texas statute, for example, reads: “A person commits an offense if he escapes from custody when he is in custody pursuant to a lawful order of a court.” V.T.C.A., Penal Code § 38.07 (a) (2).


text:
    A94A0308.
    CUNNINGHAM v. TARA STATE BANK.
    (442 SE2d 18)
   Blackburn, Judge.

Tara State Bank (the Bank) instituted suit against John Cunningham to recover on two demand notes. The trial court granted the Bank’s motion for summary judgment and Cunningham appeals.

On November 21, 1989, Cunningham executed a promissory note and security agreement in favor of the Bank in the amount of $41,412.96. The security agreement listed a Cape Dory Cutter boat as collateral and provided that the agreement was given to “secure the payment and performance of each and every debt, liability and obligation of every type and description which Debtor may now or at any time hereafter owe to Secured Party (whether such debt, liability or obligation now exists or is hereafter created or incurred, and whether it is or may be direct or indirect, due or to become due, absolute or contingent, primary or secondary). . . .”

On June 1, 1992, Cunningham, on behalf of John H. Cunningham Architects, Inc., executed a promissory note for $95,200 renewing previously existing debt with the Bank. Cunningham also executed a. personal guaranty on this demand note. By letter dated August 13, 1992, the Bank notified Cunningham of the default on the June 1, 1992, note and demanded immediate payment of the outstanding principal and interest of $97,101.08. By letter dated September 3, 1992, the Bank notified Cunningham of the default on the November 21, 1989 note and demanded immediate payment of the outstanding principal and interest of $20,604.94. Thereafter, the Bank brought the underlying action to recover on the notes and for possession of the collateral.

Cunningham argues that the trial court erred in granting the Bank’s motion for summary judgment as the note dated November 21, 1989 was never in default. However, the promissory note contained cross-default language: “I will be in default if any one or more of the following occur: ... (3) I fail to keep any other promise I have made in connection with this loan. (4) I fail to pay, or keep any other promise, on any other loan or agreement I have with you. . . .” It is undisputed that Cunningham sold the Cape Dory Cutter boat listed as security to his wife, without first obtaining permission from the Bank as required by the security agreement for such a sale of collateral. It is also undisputed that Cunningham was in default on the other note with the Bank. Therefore, the note dated November 21, 1989 was in default according to its own terms.

Decided March 16, 1994.

William S. Dominy, for appellant.

Glaze, Glaze & Fincher, Kirby A. Glaze, William A. Grabbe, for appellee.

Cunningham next argues that his tender of $15,000 would have constituted a complete payoff of the November 21, 1989 note and relieved him of paying attorney fees, per diem interest and expenses. The evidence is undisputed that the November 21, 1989 note had a payoff of $20,604.94. Therefore, Cunningham’s tender was insufficient. See Heath v. L. E. Schwartz & Sons, 203 Ga. App. 91, 92 (416 SE2d 113) (1992); OCGA § 13-1-11.

Cunningham asserts that the note dated June 1,1992, was not in default. Like the earlier note, this note was a demand note. If no demand was made, the note was payable on July 16, 1992, almost one month before demand for payment was made. “A cause of action against a maker or an acceptor accrues in the case of a demand instrument upon its date or, if no date is stated, on the date of issue.” (Citation and punctuation omitted.) Stone v. First Nat. Bank, 159 Ga. App. 812, 813-814 (285 SE2d 207) (1981). Furthermore, the second note contained the same cross-default language as the first note. Therefore, Cunningham’s sale of collateral placed both notes in default. Summary judgment was properly granted to the Bank.

On appeal, the Bank requests damages for frivolous appeal pursuant to OCGA § 5-6-6. The Bank’s action was brought properly to enforce the demand notes executed and guaranteed by Cunningham. It does not appear that there was any valid reason for Cunningham to anticipate reversal of the trial court’s judgment. Therefore, we conclude that this appeal was brought only for purposes of delay and we grant the Bank’s motion for ten percent damages for frivolous appeal. See Jamison v. Button Gwinnett Savings Bank, 204 Ga. App. 341 (2) (419 SE2d 91) (1992). The clerk is directed to enter ten percent damages upon the remittitur.

Judgment affirmed with direction.

Birdsong, P. J., and Cooper, J., concur.


text:
    A94A0403.
    FURFANO v. THE STATE.
    (442 SE2d 305)
   Blackburn, Judge.

After a stipulated bench trial, appellant Domonic Furfano was convicted of possession of cocaine with intent to distribute and giving a false name to a law enforcement officer. Furfano appeals the trial court’s denial of his motions to suppress evidence.

During an attempted armed robbery against Furfano, he was shot by his attackers three times. Furfano returned fire, but failed to stop his attackers’ retreat. Furfano’s statements vary as to whether he was alone or with someone known to him as “Dominique.” Furfano drove himself to Grady Hospital where he registered under the name Kevin Singleton. Based on information obtained from Furfano when two detectives interviewed him at Grady, a DeKalb County Magistrate issued a search warrant for the car Furfano used to drive to the hospital, a red Subaru Justy. The police located and impounded the car. The search warrant authorized a search for “[a] handgun, projectiles, blood, fingerprints, [and] other evidence pertaining to the crime of aggravated assault.”

Upon execution of the warrant, the police recovered a .380 semiautomatic handgun, several bullets, a plastic 35-millimeter film canister, and personal items establishing Furfano’s real identity. The film canister contained 12 small plastic bags containing approximately 7.6 grams of cocaine. During a subsequent interview with Furfano, he admitted his identity and acknowledged that the cocaine belonged to him.

1. In his first enumeration of error, Furfano contends that the trial court erred in denying his motion to suppress the cocaine. Furfano argues that the police exceeded the scope of the search warrant by examining the contents of the film canister.

“On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgment made. The trial court’s findings must be adopted unless determined to be clearly erroneous.” (Citations and punctuation omitted.) Merriman v. State, 201 Ga. App. 817 (412 SE2d 598) (1991). During the hearing on Furfano’s motion to suppress, a DeKalb County detective testified that the canister “clicked” when shaken and that it could have contained bullets or film. The detective testified that the film could have contained pictures of the shooting or evidence of Dominique’s identity. The detective further reasoned that the contents of the film canister could have contained fingerprints. We conclude that the warrant was sufficiently broad to include items which could have been stored in a film canister. “An officer conducting a lawful search is not precluded from seizing tangible evidence of the commission of a crime even though that evidence is not specifically listed in the search warrant. [Cit.]” Banks v. State, 262 Ga. 190, 192 (415 SE2d 634) (1992).

Decided March 16, 1994.

Duana R. Sanson, for appellant.

J. Tom Morgan, District Attorney, Robert E. Statham III, Lee A. Atkins, Assistant District Attorneys, for appellee.

2. Furfano next contends that the trial court erred in denying his motion to suppress regarding his statements acknowledging ownership of the cocaine. Furfano argues his statements were obtained as a result of the police’s conduct in exceeding the scope of the search warrant and finding the cocaine. Not only does our holding in Division 1 make Furfano’s argument meritless, Furfano failed to make his argument to the trial court and we, therefore, have nothing to review. “Enumerated errors which raise issues for the first time in a motion for new trial or on appeal present nothing for review.” (Citations and punctuation omitted.) Williams v. State, 201 Ga. App. 383, 384 (411 SE2d 118) (1991).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A94A0527.
    JONES v. THE STATE.
    (442 SE2d 20)
   Blackburn, Judge.

The appellant, Tull Jones, was convicted of aggravated assault, stemming from an incident during which he shot his wife four times with a .22 caliber rifle. On appeal, he contends that the trial court erred in denying his motions for mistrial based upon his character having been improperly placed in issue.

At trial, the victim testified that she and Jones married in November 1991 and soon thereafter began experiencing marital problems. Following an incident in which Jones lost his temper, got a rifle, and threatened to kill her, she obtained a temporary restraining order and separated from Jones. On a later occasion, Jones attempted to gain entry into her apartment by wearing a security uniform and claiming to be a police officer. On July 13, 1992, Jones drove up beside her as she was leaving for work in her car. When she refused to talk with him and drove away, Jones followed her and eventually shot her four times with his rifle. She was struck in her head, arm, breast, and back, and the head wound resulted in the removal of a portion of her brain.

The day after the shooting, police located and arrested Jones in a motel room, where he was found lying on the bed with his rifle alongside him. Following his arrest, Jones gave an inculpatory statement in which he admitted firing five shots at his wife. He explained that he had only wanted to hurt her, and had no intention of killing her.

Jones testified at trial and again admitted shooting his wife. He conceded that he knew it was wrong at the time of the shooting, and that he was guilty of the aggravated assault upon his wife. However, he again emphasized that his only intention had been to hurt his wife.

During the victim’s testimony, the State inquired as to how long she and Jones had resided in an apartment together, and the victim replied that they had just renewed the lease when Jones “had another incident with the gun related to other people.” Defense counsel moved for mistrial on the ground that this answer improperly placed Jones’s character in issue. The trial court denied the motion, on the grounds that the testimony was unresponsive, confusing, and did not actually place the defendant’s character in issue. The trial court, however, instructed the witness to respond to the questions asked and to refrain from making any reference to the defendant’s criminal activities.

Later on, as the victim recounted the incident when Jones attempted to gain entry into her apartment, the State asked about her telephone having been inoperable at the time. The victim gave a convoluted response referring to various neighbors and apartments in the complex, noting that the telephone line had been cut, and concluded by remarking, “And I don’t know, the next day or two, I don’t even remember, he was arrested again for impersonating an officer. . . .” At that point, defense counsel again moved for mistrial, which was denied by the trial court.

“The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with. [Cits.]” Stanley v. State, 250 Ga. 3, 4 (295 SE2d 315) (1982); see also Bess v. State, 207 Ga. App. 295, 296 (427 'SE2d 813) (1993). In the instant case, we are unpersuaded that the trial court abused its discretion in denying Jones’s motions for mistrial. Regarding the first motion, the witness’s objectionable remark was unresponsive to the State’s question, and did not clearly place Jones’s character in issue. The second motion also was prompted by an unresponsive and confused answer of the victim, and it appears unlikely that the witness’s reference to Jones’s arrest for impersonating an officer caused any additional damage because she had already testified about Jones’s effort to enter her apartment under the guise of being a police officer.

In any event, considering Jones’s confession in judicio and the other overwhelming evidence of his guilt, it is highly improbable that the testimony in question contributed to the verdict, and Jones thus would not be entitled to a reversal of his conviction because of the trial court’s refusal to grant a mistrial. See Bryant v. State, 210 Ga. App. 222, 224 (435 SE2d 741) (1993).

Decided March 16, 1994.

Antje R. Kingma, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, John H. Petrey, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Andrews, Judge.

text:
    A93A1994.
    DOUGLAS & LOMASON COMPANY v. HALL.
    (441 SE2d 870)
   Andrews, Judge.

Douglas & Lomason Company appeals from the trial court’s denial of its motion for j.n.o.v. after entry of judgment on the jury’s verdict for Hall of $192,954.63 for breach of contract, $3,788.74 for fraud, and $100,000 in punitive damages.

1. The first two enumerations deal with the denial of the motion for directed verdict of Douglas & Lomason Company (Company) and are considered together.

“ ‘In reviewing the overruling of a motion for a directed verdict, the proper standard to be utilized by the appellate court is the any evidence test.’ [Cit.]” Re/Max v. Real Estate Group, 201 Ga. App. 787, 788 (1) (412 SE2d 543) (1991). Applying this test and viewing the evidence in favor of Hall, id., it showed the following.

Douglas & Lomason Company, through its Centennial Industries Division (Company), manufactured custom beverage truck bodies in Columbus, Georgia. Hall was hired by the Company in 1968 and worked as an employee for a number of years. In 1982, Hall became one of the independent sales representatives working for the company pursuant to contract. Hall and Bennett, the manager of the company, signed a “Sales Representative Agreement” on January 25, 1982, effective February 1.

That agreement provided, inter alia, that Hall was the representative for Alabama, Mississippi, Tennessee, the panhandle area of Florida west of Route 231 all the way to the Alabama line, and a portion of Georgia which did not include Columbus and Phenix City, Alabama. Further, it provided that “A. On sales to buyers initiated by Representative and ordered in his territory, the following shall be payable: 1. 6% % per cent gross sales commission will be paid to the Representative on beverage truck bodies and trailers manufactured by Centennial Industries. 2. Commissions will be paid on the net invoice price to user after all discounts, freight, and taxes have been deducted. B. On sales of multiple units or systems involving combinations of units, where the company is required to make competitive bid, at deviation from its normal list prices, or custom built items, the commissions will vary from the above as appropriate to the circumstances of such sale. The Representative will be advised at the time bid is made by the Company of the commission to be payable and under no circumstances will a bid be offered by Company allowing less than 4% commission without prior consultation with Representative.” Commissions were payable monthly.

The contract was for an initial six-month term “and will automatically renew itself from year to year unless otherwise terminated by either party, with or without cause, upon 45 days’ notice in writing. . . .” On March 5, 1990, after a new sales manager requested that all representatives sign a new contract and Hall refused, a written notice of termination of the 1982 contract was sent.

Bennett was responsible for most of the wording of the agreement and the initial establishment of the territories serviced by the representatives. The representatives were provided with business cards reflecting an 800 number for their use in contacting the Columbus main office if they were unable to reach their representative. According to Bennett, on sales originated by a call to this number, it was the policy of the Company to pay the representative a commission if the customer was in his assigned territory.

Hall claimed that the Company breached the contract by removing areas from his territory, the Florida panhandle in October 1982 and Mississippi in 1986, and by repeatedly reducing his commission rate below that provided in the agreement. Suit was filed on August 3, 1990.

The errors alleged are that the court erred in denying the Company’s motion for directed verdict and j.n.o.v. based on OCGA § 9-3-24 on the claims arising from the 1982 territorial realignment and November 1983 reduction of standard commission from six-and-one-half percent to six percent. These are considered together.

OCGA § 9-3-24 provides that actions on simple contracts in writing “shall be brought within six years after the same become due and payable.” The Company contends that, since the removal of Florida and portions of Georgia from Hall’s territory occurred in 1982 and the rate reduction in 1983, he may not pursue any damages for sales made in that territory or for the rate difference, even for sales made within six years prior to suit. If the contract is divisible under OCGA § 13-1-8, as argued by Hall, appellant’s argument fails.

“In Beck v. Thompson & Taylor Spice Co., 108 Ga. 242 (33 SE 894), the Supreme Court stated, ‘It is a well-settled principle of law, that where a contract of employment is broken by one of the parties, the other party acquires or may acquire three distinct rights: 1st. He may bring an action immediately to recover for any special injury which he may have sustained in consequence of the breach. ... 2d. He may wait until the termination of the period for which he was employed, and sue upon the contract and recover his whole wages. 3d. He may treat the contract as rescinded. . . .’” Piedmont Life Ins. Co. v. Bell, 103 Ga. App. 225, 234 (3) (119 SE2d 63) (1961). See Rosenstock v. Congregation Agudath Achim, 118 Ga. App. 443, 444 (164 SE2d 283) (1968).

When the statute of limitation begins to run depends on whether the contract is entire or divisible. “If the contract is found to be strictly divisible, the statute will run separately as to each payment or performance when it becomes due. . . . [Contracts of service for a specified term are held severable when the wages or salary [or commissions] can be construed as payable at specified shorter periods.” Piedmont Life, supra at 235. Cahoon v. Kubatzky, 138 Ga. App. 393, 396 (1) (226 SE2d 467) (1976).

Here, no commission was due until the unit was sold, manufactured, and delivered. As to all delivered units, commission was paid on a monthly basis. While the unilateral change in territories was made in 1982 and the rate change in November 1983, Hall was due no commission in the removed territories until a sale was consummated. Hall properly made no claims for commissions accruing before 1984, six years before suit, as these were barred by OCGA § 9-3-24. As to sales within the six-year period, however, claims for commissions from these territories and for the rate differential were not barred by that section. Id.; Rosenstock, supra.

Therefore, it was not error to deny the motions for directed verdict and j.n.o.v. on this ground.

2. The third enumeration is that the court erred in admitting evidence permitting the jury to calculate Hall’s damages for the lost sales commissions in the reassigned territories by considering the actual commissions earned by the new representatives.

Appellant Company has not referenced any particular exhibits in the enumeration of error as objectionable. Rule 15 (c) (3) (ii). The transcript references in the enumeration and the discussion in the argument section, which contains no record or transcript references, Rule 15 (3) (i) and (ii), specify only Exhibits 35 and 36, and this is all we consider.

The only objections voiced when Exhibit 35 was tendered was that it was irrelevant and that it involved changes made beyond the statute of limitation. This latter argument has been resolved by Division 1, supra.

Exhibit 35 was a volume of new bookings reports for the territories removed from Hall’s area. These reflected the sales actually made by the representatives to whom Hall’s territories had been reassigned for the years 1984 through his termination. The objection voiced, based on Tifton Brick &c. v. Meadow, 92 Ga. App. 328, 332 (3) (88 SE2d 569) (1955), was that this information was irrelevant to show what Hall’s sales would have been in those territories had he been the one calling on the customers and prospecting the sales because the sales were made by other salesmen. Tifton, however, does not hold that the only evidence relevant to prove lost earnings is that reflecting the past sales of the plaintiff. Instead, it concludes that such evidence may be used for that purpose.

Evidence of the actual commissions earned in Hall’s former territory was relevant to prove his claim for contract damages. OCGA §§ 24-2-1; 13-6-2; see Topvalco, Inc. v. Garner, 210 Ga. App. 358, 361 (3) (436 SE2d 25) (1993); Re/Max, supra at 789 (2).

3. In the fourth enumeration, the Company contends the court erred in “permitting” the fraud claim asserted in Hall’s third count. That count alleged fraudulent concealment of sales made by call-ins or other representatives in Hall’s territories.

A motion for directed verdict was made concerning the fraud count. The argument made here, however, was not part of that motion and will not be considered here. Ga. Ports Auth. v. Southeast Atlantic &c., 202 Ga. App. 318, 322 (3) (414 SE2d 232) (1991); Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858 (2) (360 SE2d 418) (1987).

4. Finally, the Company contends that the award of $100,000 in punitive damages was excessive.

There was no specific motion for directed verdict made on the submission of the issue of punitive damages to the jury other than the motion contending that the fraud count should not be submitted to the jury.

Decided March 1, 1994

Reconsideration denied March 17, 1994

Smith, Currie & Hancock, Paul R. Beshears, Daniel F. Dupre, for appellant.

Worthington & Flournoy, Samuel W. Worthington III, for appellee.

We cannot say that the amount of punitive damages is excessive as a matter of law. See Clarke v. Cotton, 207 Ga. App. 883 (1) (429 SE2d 291) (1993).

Judgment affirmed.

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

       The Company acknowledges that no written amendment was ever made to Hall’s contract effecting these changes and that the Company’s 1985 procedures manual stated that six percent was the standard commission “unless specified otherwise.” The chief financial officer testified that the Company felt that, because Hall accepted his monthly commission check and cashed it without writing “under protest” on the endorsement, “he was effectively agreeing to the arrangement that we had.” Such an argument of mutual departure, even if applicable, was a jury question. Kusuma v. Metametrix, 191 Ga. App. 255, 256 (3) (381 SE2d 322) (1989).

       Although Exhibit 35 is contained in the record, there is no document marked Exhibit 36, nor does the transcript reflect that it was ever admitted. Therefore, there is nothing to review in this regard.


author: Beasley, Presiding Judge.

text:
    A93A2157.
    DORSEY v. THE STATE.
    (441 SE2d 891)
   Beasley, Presiding Judge.

Dorsey was indicted for “VGCSA — Sale of Cocaine” on February 8, 1991, to an undercover GBI agent and “VGCSA — Sale of Imitation Crack Cocaine” to a second undercover agent on February 20, 1991. A jury found him guilty of both charges. He appeals the convictions following the denial of his motion for new trial.

1. Dorsey contends that the trial court erred in denying his motions for a directed verdict, for new trial, and in arrest of judgment in regard to the imitation crack cocaine charge because the “sale” of an imitation controlled substance is not a violation of OCGA § 16-13-30.2 (a) or of any criminal láw in Georgia. He further maintains that the evidence introduced on this offense infected his trial on the sale of cocaine charge so as to deny him due process of law under both the state and federal constitutions.

The evidence showed that on February 20, Dorsey sold to a narcotics agent “off-white chunky material” in two zip-lock plastic bags which he represented to be crack cocaine. In a custodial statement to law enforcement officers, Dorsey said, “I remember selling the ‘FLEX’ to the agents the second time. ‘FLEX’ is cooked-up Goody powders with ORAJEL on it. Goody powders cook up just like cocaine.”

During the hearing on Dorsey’s motion for directed verdict, the State maintained that Dorsey should be prosecuted under OCGA § 16-13-30.1, the violation of which is a felony. The trial court rejected this, concluding that the indictment charged a violation of OCGA § 16-13-30.2, a misdemeanor of a high and aggravated nature, and the jury was instructed to consider the evidence in the context of OCGA § 16-13-30.2.

The indictment clearly charged Dorsey with selling an “imitation controlled substance,” which is the conduct proscribed by OCGA § 16-13-30.2. It provides, “Any person who knowingly manufactures, distributes, or possesses with intent to distribute an imitation controlled substance as defined in paragraph (12.1) of Code Section 16-13-21 is guilty of a misdemeanor of a high and aggravated nature.” Furthermore, the evidence was that the substance in the second buy was “specifically designed or manufactured to resemble the physical appearance of a controlled substance, such that a reasonable person of ordinary knowledge would not be able to distinguish the imitation from the controlled substance by outward appearances.” OCGA § 16-13-21 (12.1). This factor is requisite for a violation of OCGA § 16-13-30.2 but is not an element of OCGA § 16-13-30.1. State v. Burgess, 263 Ga. 143, 145 (2) (429 SE2d 252) (1993).

The next question is whether or not a “sale” is an act prohibited under OCGA § 16-13-30.2.

The statute expressly prohibits distribution. OCGA § 16-13-21 (11) defines “distribute” as “to deliver a controlled substance, other than by administering or dispensing it.” Subsection (7) of that statute defines “deliver” or “delivery” as “the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.” “The term ‘sale’ is generally given a broader definition in the drug context than in other fields of law, so as to include not only the exchange of the goods for valuable consideration, but also barter and gift and often the offer or agreement to sell, exchange, give or otherwise transfer the drugs to another. [Cits.] ... [A] sale necessarily includes a delivery of goods for a price and the sale is complete upon delivery.” Robinson v. State, 164 Ga. App. 652, 654 (1) (297 SE2d 751) (1982).

Thus, a sale is a distribution by definition, although a distribution may or may not be a sale. The legislature chose not to expressly enumerate “sell” on the list of expressly prohibited activities under OCGA § 16-13-30.2 but instead used a more generic term. See the writer’s concurrence in part and dissent in part in Burgess v. State, 204 Ga. App. 766, 769 (420 SE2d 590) (1992), overruled by State v. Burgess, supra. The conduct of selling is subsumed in the expressly prohibited activity of distributing and therefore constitutes a violation of the statute.

2. Dorsey contends that the court erred by admitting into evidence his custodial statement because it was obtained after law enforcement officers arrested him pursuant to an arrest warrant procured through known falsehood. Dorsey’s statement admitted both the sale of cocaine and the later sale of the imitation.

The warrant is based on the buy of imitation crack cocaine on February 20. Dorsey maintains that the involved agent, Holbrook, swore that the content of the affidavit in support of the arrest warrant was true, i.e., that Dorsey had sold him a quantity of crack cocaine, even though Holbrook then knew that what he had purchased was not a controlled substance.

Decided March 9, 1994

Reconsideration denied March 17, 1994.

Thompson, Fox, Chandler, Homans & Hicks, Joseph A. Homans, for appellant.

David C. Turk III, District Attorney, for appellee.

At trial, Holbrook admitted signing the affidavit as stated even though he knew the substance was not crack cocaine but explained that he had informed the issuing magistrate of the true situation, that he (Holbrook) had understood it was still a violation of the same law, and that the magistrate decided that the misstatement in the affidavit did not matter. The magistrate testified he did not recall being told that the facts as stated were untrue but that he would not have written a warrant on facts he knew were false.

Assuming that the arrest warrant based on the February 20 transaction was illegally obtained on knowingly made false information, this did not require suppression of Dorsey’s custodial statement. Dorsey was arrested also pursuant to another and separate arrest warrant, one issued for the February 8 sale of cocaine to agent Montgomery, which warrant Dorsey concedes was valid. “The ‘fruit of the poisonous tree’ ‘doctrine is limited to evidence which the police cannot trace to an independent and lawful source. [Cits.]’ [Cit.]” State v. Wright, 204 Ga. App. 382, 383 (2) (419 SE2d 334) (1992). Thus the statement has a means “sufficiently distinguishable to be purged of the primary taint.” United States v. Terzado-Madruga, 897 F2d 1099, 1113 (1990).

Judgments affirmed.

Cooper and Johnson, JJ., concur. Smith J., disqualified.


author: Birdsong, Presiding Judge.

text:
    A94A0058.
    LEBIS v. THE STATE.
    (442 SE2d 786)
   Birdsong, Presiding Judge.

Tremaine Jay Lebis appeals his judgment of conviction of aggravated assault and possession of a firearm during the commission of a felony. He enumerates 13 errors. Held:

1. (a) No psychologist-patient privilege existed between appellant and the court-appointed psychologist, Dr. Albrecht, whether the psychologist was serving as agent for the court or the State at the time of evaluation. See Harris v. State, 256 Ga. 350, 353 (3) (349 SE2d 374); Pierce v. State, 243 Ga. 454 (254 SE2d 838).

(b) As no Sixth Amendment violation has been reasonably raised in the enumerations of error regarding Dr. Albrecht’s questioning of appellant and subsequent trial testimony, this issue has not been preserved for appeal. Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649).

(c) When at trial the psychologist testified for the prosecution during the guilt phase, his role changed from witness for the court to “essentially like that of an agent of the State,” and in such circumstances a Miranda warning was required. Compare Buchanan v. Kentucky, 483 U. S. 402, 422 (107 SC 2906, 97 LE2d 336) and Estelle v. Smith, 451 U. S. 454, 465-474 (101 SC 1866, 68 LE2d 359). The psychologist in essence testified that appellant had stated that the shooting of the victim was accidental. Pretermitting whether it was error of constitutional magnitude or otherwise to admit this testimony is whether such error would have been reversible. In view of the overwhelming evidence of appellant’s guilt, we find beyond a reasonable doubt that any error in the admission of this testimony would have been harmless. Palmer v. State, 186 Ga. App. 892, 897 (3) (369 SE2d 38).

2. The trial court did not breach its discretion (see, e.g., Wallace v. State, 248 Ga. 255, 261 (5) (282 SE2d 325)) in denying appellant’s request to use a jury questionnaire. See Baxter v. State, 254 Ga. 538, 542 (5b) (331 SE2d 561). Also, appellant failed to show how he was harmed by the ruling.

3. (a) At the time of being advised of his arrest for aggravated assault, appellant spontaneously exclaimed, “I don’t know what you’re talking about.” The record does not support a finding that appellant was subjected to interrogation at the time of his arrest; while interrogation includes not only express questioning but also any words or actions on the part of the police which the police should know are reasonably likely to elicit an incriminating response from the suspect, it does not include words or actions, such as here occurred, that are normally attendant to arrest and custody. Rhode Island v. Innis, 446 U. S. 291, 301 (100 SC 1682, 64 LE2d 297). The statement made at the time of arrest was an admissible spontaneous statement by appellant. See Lolley v. State, 259 Ga. 605, 606 (2) (385 SE2d 285). Moreover, “ ‘[a]s a general rule, all the circumstances connected with a defendant’s arrest [, including statements spontaneously uttered by defendant,] are admissible as part of the res gestae’ ” or to prove the circumstances surrounding the arrest. Compare Sampson v. State, 209 Ga. App. 213, 216 (3) (433 SE2d 136).

(b) Another statement made by appellant after being advised of his Miranda rights that he had been with his girl friend and did not know anything about the shooting, constituted a voluntary statement. Compare Aldridge v. State, 258 Ga. 75 (3) (365 SE2d 111). This self-serving alibi claim was inconsistent with and relevant to impeach any defense of justification; the trial court did not abuse its discretion in admitting it as relevant. “The trial judge resolved the issues in favor of admissibility, and factual and credibility determinations of this sort made by a trial judge must be accepted by appellate courts unless such determinations are clearly erroneous.” Cunningham v. State, 248 Ga. 835, 836 (2) (286 SE2d 427). Further, assuming arguendo error had occurred in the admission of this statement, it would have been harmless beyond a reasonable doubt. Palmer, supra.

4. Appellant’s contentions that the trial court erred in permitting a fellow inmate to testify as to two other statements uttered by appellant without a Miranda warning having been administered to him, is without merit. The inmate-witness previously had acted as an informant in about fifteen cases over a ten-month period; the inmate-witness was paid in some instances but not in others for his information. However, he was not acting as an agent for law enforcement authorities at the time the two statements were made by appellant in the confinement facility. The hearing record establishes that no threats, coercion, or promises of reward or leniency were made to the witness.

The first statement of appellant was made when the witness was talking with him and other inmates in a holding cell. The witness asked appellant why he was in jail and appellant voluntarily responded that “he had shot somebody,” but that “they couldn’t prove it.” Appellant’s second statement was made to the witness the next day. Appellant initiated the second conversation stating, inter alia, that he had shot a person named D. J. or Donnie; appellant hated and despised the victim who appellant said had stolen drugs and clothes and had messed with appellant’s girl friend. Appellant further stated he had put together a “creeping trip” (a venture breaking into cars) with the intention of shooting D. J. during the trip. Appellant never said the shooting was accidental or in self-defense. It warps the boundaries of reason to assume this witness was motivated by civic-minded concern; but even “[a]n inmate who acts upon the expectation of an unpromised reward does not thereby become an agent for the state.” Baxter, supra at 546 (12). The record establishes the witness was not an agent for the State; no Fifth or Sixth Amendment violations occurred and the testimony of the witness was admissible. Id.; compare Burgan v. State, 258 Ga. 512, 515 (5) (371 SE2d 854).

5. Appellant concedes he was provided a copy of the initial incident report but contends the trial court erred in denying his request for production of investigative notes. We disagree. Stevens v. State, 242 Ga. 34, 37 (1) (247 SE2d 838). Moreover, examining OCGA § 50-18-72 (a) (4), we conclude “investigative notes” are not within that category of law enforcement and prosecutorial documents authorized for release under the Georgia Open Records Act. Investigative notes are “notes” not “reports,” and cannot be classified as police arrest reports, accident reports, or incident reports. Further, appellant has failed to identify the materiality or favorable nature of the evidence sought. Anderson v. State, 200 Ga. App. 29, 31 (9) (406 SE2d 791).

6. The trial court did not abuse its discretion in declining to sever the two counts of the indictment. The aggravated assault and possession of a firearm during the commission of a felony were part of a series of acts constituting a common plan or scheme. Villarreal v. State, 198 Ga. App. 501 (402 SE2d 104). The evidence of possession of a firearm would have been admissible during the trial of the felony offense of aggravated assault. Compare Weaver v. State, 206 Ga. App. 560 (1) (426 SE2d 41).

7. Certain records of prior convictions and a probation revocation order of the victim, Donnie Joyce, were admitted in evidence by appellant’s counsel during cross-examination. The page of the transcript cited in appellant’s brief reveals that appellant’s counsel asked the victim whether, during a certain guilty plea hearing, “you told that judge you wouldn’t violate any state or federal laws to be adjudged by the court.” The trial court sustained the State’s relevancy objection. The trial court has wide discretion in determining what evidence is legally or logically relevant. See generally Carroll v. State, 261 Ga. 553 (2) (408 SE2d 412); Everman v. State, 203 Ga. App. 350, 352 (3) (416 SE2d 861). Where, as here, proposed cross-examination would induce testimony that is not logically or legally relevant, the trial court does not abuse its discretion in disallowing such questioning. See Lumpkin v. State, 255 Ga. 363, 365 (5) (338 SE2d 431).

8. The trial court admitted, without objection, a certain tape recording of one of the State’s witnesses who claimed the taped statement had been given under duress. The tape was offered by the State to impeach the witness’ duress claim and not to impeach the factual contents thereof. As appellant’s trial counsel affirmatively expressed no objection to the jury hearing the tape, this issue was not preserved for appellate review. See Lawton v. State, 259 Ga. 855, 856 (2) (388 SE2d 691); McGee v. State, 205 Ga. App. 722, 723 (3) (423 SE2d 666). Further, use of the tape to disprove testimony of duress constituted a permissible form of impeachment. Evidence tends to impeach if it casts doubt on the truth of a witness’ present testimony (Minter v. State, 258 Ga. 629, 630 (2) (373 SE2d 359)), and even evidence of slight probative value in this regard may be admitted. See Boatright v. State, 192 Ga. App. 112, 116 (6) (385 SE2d 298). Recently, the Supreme Court clarified that “[a] party may impeach its own witness with a prior inconsistent statement without any showing of entrapment or surprise” (Rollins v. State, 262 Ga. 698, 699 (1) (425 SE2d 285)) and, likewise, impeachment can be accomplished in cases such as this by a showing of prior conduct or demeanor inconsistent with or otherwise tending to cast doubt as to the truthfulness of a claim of threats, coercion or duress. Cf. Minter, supra.

9. As appellant’s trial counsel entered no objection to the preliminary questioning of Dr. Albrecht regarding appellant’s mental responsibility at the time of the crime and his competency to stand trial, the propriety of this questioning is not preserved for appellate review. See Lawton, supra. Moreover, appellant has failed to show how such questioning harmed him. Contrary to appellant’s contentions, the evidence under consideration did not improperly place his character in issue, and appellant had taken no position regarding his competency and mental responsibility inconsistent with the testimony elicited. Harm also must be shown to warrant reversal. Robinson v. State, 229 Ga. 14, 15 (189 SE2d 53).

10. No objection was posed to the State’s argument that the jury had “a bird’s eye view of [appellant,] this smirking, sorry excuse for a human being. . . . Only a rotten coward does what he did.” We find no error. “[I]t is permissible for counsel to draw deductions from the evidence [and voluntarily exhibited courtroom demeanor of the witnesses and parties] regardless of how illogical and unreasonable, and this is a ‘matter for reply by adverse counsel, not for rebuke by the court.’ ” Adams v. State, 260 Ga. 298, 299 (1) (392 SE2d 866). As to whether these remarks were “outside the evidence,” we agree with the conclusions in Miller v. State, 226 Ga. 730, 731 (5) (177 SE2d 253) and Dudar v. Lewis, 158 Ga. App. 724, 727 (282 SE2d 194).

Assuming arguendo error occurred, it was not reversible. As no timely, inflammatory argument objection was posed, the proper test is that announced in Tharpe v. State, 262 Ga. 110, 114 (16) (416 SE2d 78); we find there exists no reasonable probability that the argument, even if improper, changed the result of this trial.

11. Applying the two-prong test of Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674), we find that appellant has failed to carry his burden (Rachell v. State, 210 Ga. App. 106, 108 (3a) (435 SE2d 480)) of establishing inadequacy of counsel. There exists a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action of trial counsel might be considered strong trial strategy. Ferrell v. State, 261 Ga. 115, 119-120 (3) (401 SE2d 741). Appellant has not overcome this presumption. Moreover, the record reveals that among the several trial strategies employed by the defense was that of having appellant submit to psychological evaluation. Errors of judgment and tactics do not constitute ineffective assistance of counsel per se. Bishop v. State, 155 Ga. App. 611, 615-616 (2d) (271 SE2d 743). Assuming without deciding that some form of professional deficiency had been established, appellant has failed to show there existed a reasonable probability that but for such deficiency a different result would have occurred. See generally Smith v. State, 262 Ga. 480 (422 SE2d 173).

Decided March 4, 1994

Reconsideration denied March 17, 1994

Finestone, Morris & Wildstein, Bruce H. Morris, Robert H. Citronberg, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

12. Applying the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), we find appellant’s enumeration of insufficiency of the evidence is without merit.

13. The trial court did not err in denying appellant’s motion for new trial. Bill Jones Motors v. Mitchell, 100 Ga. App. 185, 188 (110 SE2d 555).

Judgment affirmed.

Cooper and Blackburn, JJ., concur.