text:
    A92A0413.
    DOZIER et al. v. CLAYTON COUNTY HOSPITAL AUTHORITY et al.
    (424 SE2d 632)
   Birdsong, Presiding Judge.

This is an appeal from the order of the superior court granting Clayton County Hospital Authority’s (authority) motion for partial summary judgment on the issue of sovereign immunity, and the motions of all appellees to strike and dismiss the complaint for failure to attach a legally sufficient affidavit thereto in this medical malpractice suit.

On February 14, 1991, appellants filed a medical malpractice action alleging the February 19, 1989 wrongful death of Gregory A. Dozier. Attached to the complaint was a document entitled “Affidavit of George Podgorny, M.D.” At least one negligent act or omission on the part of each defendant was set forth in the document, and the document appears to assert therein the factual basis for each medical malpractice claim. However, the document reveals that the opinions of Dr. Podgorny were based at least in part upon his review of a variety of medical and hospital records, none of which was attached to the complaint. Appellees asserted an affirmative defense in their answers that the affidavit failed to comply with the requirements of OCGA § 9-11-9.1, and asserted a failure of the complaint to state a claim upon which relief could be granted. Appellees filed motions to strike and to dismiss the complaint, and appellee hospital also filed a motion for partial summary judgment on the issue of sovereign immunity. Appellants thereafter filed an amended complaint with medical records attached. The trial court found that appellants had not attached the medical records to the affidavit; that appellants possessed the medical records before the complaint was filed; that appellants’ expert had reviewed those records before giving his opinion; that the affidavit failed to meet the requirements of OCGA § 9-11-9.1 (a); and that the failure to attach the medical records was not a “mistake.” The trial court granted the appellees’ motions to dismiss, and also granted appellee authority’s motion for partial summary judgment on the issue of sovereign immunity. Held:

1. Pursuant to Court of Appeals Rule 13, the motion of the Georgia Trial Lawyers Association for the consideration of their “Brief of Amicus Curiae” is granted.

2. Appellants assert the trial court erred in granting appellee authority’s motion for partial summary judgment on the issue of sovereign immunity. We agree. The trial court relied on the authority of Hospital Auth. &c. v. Litterilla, 199 Ga. App. 345 (404 SE2d 796). The authority consistently asserted before the trial court and initially on appeal that Litterilla was controlling. The trust agreements reveal on their face that the authority elected to create a self-insurance program, which inter alia contemplated the payment of expenses related to malpractice and comprehensive general liability losses not otherwise covered by commercial malpractice or comprehensive general liability insurance. To the extent provided, the authority’s self-insurance trust funds, coupled with any existing commercial insurance, “constitutes ‘liability insurance protection’ within the meaning of the constitutional provision [Art. I, Sec. II, Par. IX, Ga. Const, of 1983] and therefore acts as a waiver of sovereign immunity.” Litterilla v. Hosp. Auth. &c., 262 Ga. 34, 36 (413 SE2d 718), reversing Hospital Auth. &c. v. Litterilla, 199 Ga. App., supra.

Further, the ratification of the 1991 amendment to Art. I, Sec. II, Par. IX of the Ga. Constitution of 1983 “must have prospective effect only and does not act to withdraw any waiver of sovereign immunity for actions pending on January 1, 1991, the amendment’s effective date.” Donaldson v. Dept. of Transp., 262 Ga. 49, 54 (414 SE2d 638). “Under Georgia law, a waiver of sovereign immunity occurs at the time that the cause of action arises. Donaldson, supra. Therefore, sovereign immunity [is] waived to the extent of available insurance coverage as to any cause of action that accrued before the effective date of the constitutional amendment. The waiver was not withdrawn by the passage of the constitutional amendment and remains effective regardless of whether the action was filed before or after the effective date of the amendment.” Curtis v. Bd. of Regents &c., 262 Ga. 226, 228 (416 SE2d 510). In the case at bar, although the complaint was filed after the effective date of the statute, it has not been controverted that the cause of action accrued before January 1, 1991. Accordingly, the waiver of any existing defense of sovereign immunity has not been withdrawn in this case.

In view of the above, we need not determine whether the authority currently is entitled to claim the defense of sovereign immunity. Compare Litterilla v. Hosp. Auth. &c., 262 Ga., supra at note 1 with Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347 (1a) (411 SE2d 75), citing Hospital Auth. &c. v. Litterilla, 199 Ga. App., supra.

3. The trial court granted appellee authority’s motion to dismiss for noncompliance with the requirements of OCGA § 9-11-9.1. The authority asserts that appellants’ affidavit attached to its complaint was deficient in that it failed to attach timely the hospital and medical records referred to in the affidavit.

We must first consider whether appellants were required to attach a supporting expert affidavit to their complaint against the hospital authority, based inter alia on medical malpractice claims stemming from alleged acts of negligence by the authority’s agents and employees.

OCGA § 9-11-9.1 (a) pertinently provides that “[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert.” (Emphasis supplied.) In Lamb v. Candler Gen. Hosp., 262 Ga. 70, 71 (1) (413 SE2d 720), it was held that where professional skill and judgment are not involved, an affidavit under OCGA § 9-11-9.1 is not necessary. However, in the case at bar it appears that all of the claims averred against the authority (with sufficient particularity so as to provide reasonable notice under Code pleading requirements) were grounded upon the authority’s liability for the acts and omissions of its agents and employees under the doctrine of respondeat superior. These acts or omissions, as averred in the complaint, required the exercise of some form of medical skill and judgment on the part of the agents or employees concerned. In Gillis v. Goodgame, 262 Ga. 117, 118 (414 SE2d 197), it was concluded that “the legislature intended for the term ‘professional’ as used in OCGA § 9-11-9.1 to be defined by OCGA §§ 14-7-2 (2); 14-10-2 (2), and 43-1-24. . . . [Therefore . . . the affidavit requirements of § 9-11-9.1 apply only to those professions recognized under Georgia law in OCGA §§ 14-7-2 (2); 14-10-2 (2), and 43-1-24.” This holding was further clarified in Lamb, supra at 72 (2), which recognized that Gillis, supra, held that the affidavit requirements of § 9-11-9.1 apply only to those professions recognized under Georgia law in OCGA §§ 14-7-2 (2); 14-10-2 (2) and 43-1-24. Thereafter, the Supreme Court concluded in Lamb, supra at 72, “[i]nsofar as [appellant’s] complaint alleges negligence against the hospital for supplying defective equipment for use in treating its patients, the case is not one against a ‘professional’ or involving ‘professional malpractice.’ Therefore, OCGA § 9-11-9.1 is inapplicable and no affidavit is required.” (Emphasis supplied.) The essence of this holding appears to be that an appropriate affidavit is required not only when a particular claim is against a “professional” but also when a particular claim is grounded upon “professional malpractice,” that is, an act or omission caused by a “professional” which constitutes malpractice. The hospital authority not being a “professional,” the affidavit requirement does not apply automatically as to any claim asserted against it. Greene County Hosp. Auth. v. Turner, 205 Ga. App. 213 (421 SE2d 715) and Thornton v. Ware County Hosp. Auth., 205 Ga. App. 202 (421 SE2d 713). Rather, the affidavit requirement applies against a hospital not only when liability is based upon the doctrine of respondeat superior but when it is further grounded upon the averment of acts or omissions requiring the exercise of professional skill and judgment by agents or employees who themselves are recognized as “professionals” under OCGA §§ 14-7-2 (2); 14-10-2 (2) and 43-1-24. Compare Thornton v. Hospital Auth., supra, with Greene County Hosp. Auth. v. Turner, supra. See Lamb, supra at 72 (2). Thus, to the extent that the complaint avers claims of liability, based on the doctrine of respondeat superior, arising from acts or omissions constituting malpractice by doctors, registered professional nurses, or other “professionals,” as recognized by said statutes, an appropriate affidavit, as defined in Thornton, supra at 203, was required under OCGA § 9-11-9.1. However, to the extent that the complaint avers claims based on the acts or omissions of agents or staff employees who are not “established” by the movant hospital as qualifying as professionals under Gillis, supra, no supporting affidavit would be required, and those claims accordingly could not be dismissed. (Compare Greene County Hosp. Auth., supra at 203.) For example, the failure to take vital signs promptly by hospital staff personnel having such a duty and the failure thereafter of such personnel to take vital signs at appropriate intervals is a claim which would require no supporting expert affidavit as against those agents or employees who are not statutorily recognized as “professionals,” as above discussed. “ ‘[A] motion to dismiss . . . should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim.’ ” Union Camp Corp. v. Southern Bulk Indus., 193 Ga. App. 90 (386 SE2d 866). As such certainty does not exist in this instance, the trial court erred in dismissing appellants’ complaint in toto as against the hospital authority.

4. Appellants assert the trial court erred in ruling that the affidavit filed contemporaneously with the complaint failed to meet the pleading requirements of OCGA § 9-11-9.1. Defendants’ challenge to the affidavits primarily was grounded upon appellants’ failure to attach certain medical documents to the complaint, which had been relied upon by the expert as revealed in his affidavit. The trial court found that appellants were in possession of these documents at the time the complaint was filed, but did not attach them due to a misinterpretation of the law; and, that the personal knowledge referred to in the expert’s affidavit relates to his experience and to the standards of care required rather than the facts of this particular case.

The trial court, relying on Cheeley v. Henderson, 261 Ga. 498 (405 SE2d 865), granted appellees’ motions to dismiss. Cheeley holds inter alia that failure to file an affidavit in compliance with the requisites of OCGA § 9-11-9.1 (a), due to a misinterpretation of law would preclude cure of the defective affidavit by amendment. However, Cheeley is factually distinguishable from this case in that the affidavit in Cheeley failed to set forth specifically at least one negligent act as required by statute. The affidavit in this case “set[s] forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” OCGA § 9-11-9.1 (a). Thus we must determine whether an affidavit is statutorily insufficient which satisfies all the express requirements of OCGA § 9-11-9.1 (a) but fails to attach the medical documents therein referred to and relied upon by the expert when reciting in the affidavit the factual basis supporting each claim.

Hayes v. Murray, 252 Ga. 529 (314 SE2d 885) concerns the sufficiency of an expert affidavit submitted in opposition to a motion for summary judgment. Hayes is both factually and legally distinguishable from the case at bar. Likewise distinguishable is Smith v. Feliciano, 187 Ga. App. 86 (369 SE2d 346), as it pertinently concerns the sufficiency of an expert affidavit submitted in opposition to a motion for summary judgment; moreover, the affidavit in Smith is not shown to have contained a recitation of the factual basis supporting each claim. Also distinguishable are Brooks v. Boykin, 194 Ga. App. 854 (392 SE2d 46) and Mingledolph v. Univ. Emergency Physicians, 174 Ga. App. 75 (329 SE2d 222).

An expert affidavit, submitted by plaintiffs, has “a lesser evidentiary standard to meet when used to fulfill the requirement of OCGA § 9-11-9.1 (a),” than when also relied upon as expert testimony to create genuine issues of material fact in the disposition of a motion for summary judgment. Sanders v. Ramo, 203 Ga. App. 43, 44 (1) (416 SE2d 333). In 0-1 Doctors &c. Co. v. Moore, 190 Ga. App. 286 (378 SE2d 708), this court rejected a contention that the requirement of an expert affidavit in OCGA § 9-11-9.1 mirrors the recognized requirements concerning the contents of affidavits placed upon malpractice plaintiffs when the disposition of a summary judgment motion is at issue. Thus, in 0-1 Doctors, supra at 288 (1), we held: “We are not persuaded by appellees’ arguments to incorporate the evidentiary standards applicable to evidence supporting a motion for summary judgment pursuant to OCGA § 9-11-56 (e) to the rule of pleading set forth in OCGA § 9-11-9.1 (a). In its requirement that a plaintiff elaborate upon and verify the existence of a cause of action, OCGA § 9-11-9.1 bears a far closer similarity to OCGA § 9-11-9 (b) (pleading fraud with particularity) than the procedural requirements under OCGA § 9-11-56, which allows parties, after discovery has been exhausted, to obtain judgment on the merits of a claim in factually uncontested cases. We construe OCGA § 9-11-9.1 as establishing an ‘exception to the general liberality of pleading permitted under (the Civil Practice Act, OCGA § 9-11-1 et seq.)’ [cit.], by requiring when a malpractice suit is instituted that along with the complaint an affidavit be filed by a competent expert witness setting forth a single negligent act allegedly committed by the defendant [and the factual basis for each such claim]. The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need file his answer. . . . The record reveals that appellant submitted a valid affidavit by [an expert], competent to testify in court, which set forth one negligent act . . . and the factual basis for that claim, in full compliance with the requirements set forth in OCGA § 9-11-9.1 (a).” 0-1 Doctors, supra, was cited with general approval in the recent Supreme Court case of Gadd v. Wilson & Co. &c., 262 Ga. 234 (416 SE2d 285) (although affidavit did not expressly ascribe the alleged negligence to appellee, the requirement that the alleged negligence had to be linked to appellee was substantially met as appellee was the only defendant and therefore was implicitly the party to whom negligence was being attributed; when viewed from this prospective, no question of frivolity of claim exists).

In Bowen v. Adams, 203 Ga. App. 123-124 (416 SE2d 102), this court pertinently held: “Unlike OCGA § 9-11-56, which imposes an evidentiary requirement in the context of summary judgment on the merits, OCGA § 9-11-9.1 merely imposes an initial pleading requirement on the plaintiff in a malpractice action. [Cit.] Accordingly, an expert affidavit which would be insufficient to satisfy the evidentiary standards of OCGA § 9-11-56 may nevertheless be sufficient to satisfy the pleading standards of OCGA § 9-11-9.1. [Cit.] The sufficiency of the expert affidavit determines whether the complaint for malpractice ‘is subject to dismissal for failure to state a claim. . . OCGA § 9-11-9.1 (e). When the sufficiency of a plaintiff’s complaint to state a claim for relief is questioned by a motion to dismiss, it is to ‘be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed.” Likewise, “[a] Section 9-11-9.1 affidavit should be construed most favorably to the plaintiff and all doubts should be resolved in plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible.” Gadd, supra at 235, citing Bowen, supra. “ ‘The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed.’ . . . Although an unfavorable construction of this affidavit may be possible, construing it most favorably for appellant and resolving all doubts in [appellant’s] favor, it constitutes an affirmation that appellant’s complaint is not frivolous and that, if true, the allegations therein would authorize a recovery for an injury resulting from medical malpractice consisting of appellee’s performance of [the negligent acts or omissions specifically set forth]. . . . Appellant cannot be required to submit an expert affidavit which unequivocally demonstrates the evidentiary merits of her claim unless and until appellee moves for summary judgment and submits evidence demonstrating that appellant’s claim lacks merit.” (Emphasis supplied.) Bowen, supra at 124.

Appellees further rely on our holding in Gooden v. Ga. Baptist Hosp. &c., 198 Ga. App. 407 (401 SE2d 602), while appellants assert that Druckman v. Ethridge, 198 Ga. App. 321 (401 SE2d 336) is outcome determinative. Both of these cases are distinguishable from this case at bar (for example, Gooden involves a third complaint filed pursuant to the renewal provisions of OCGA § 9-2-61 (a) and concerns affidavits which were not originals but photocopies). However, we find the result obtained in Druckman is more consistent with the holdings of this court in 0-1 Doctors and Bowen, supra, and with the subsequent holding of the Supreme Court in Gadd, supra, given the particular facts before us on appeal. “ ‘What OCGA § 9-11-9.1 (a) requires is that the expert affidavit set forth specifically at least one negligent act or omission “claimed to exist” and the factual basis for each such claim. . . . It is unnecessary for the . . . plaintiff to .. . prove the alleged facts. . . . [W]here a . . . complaint asserts a damage claim and alleges professional malpractice, it is only necessary that there be filed contemporaneously with the filing of the complaint the affidavit of an expert stating that, in his expert opinion, such facts, if true, would constitute professional malpractice. . . .’” (Emphasis supplied.) Druckman, supra at 322. The affidavit in this case, as in Gadd, supra, substantially meets the statutory requirements of OCGA § 9-11-9.1. Further, as above noted, “ ‘ “[t]he purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need . . . answer.” ’ ” Druckman, supra at 322. “It is clear that the expert affidavit attached to appellant’s [original] complaint meets this standard [under the operative facts of this case]. An expert affidavit filed with a complaint pursuant to OCGA § 9-11-9.1 need not be based upon the affiant’s actual personal knowledge. To the contrary, the affiant may base his expert opinion upon an assumption that the factual allegations of the complaint are true [or upon an assumption that the factual allegations expressly recited in his affidavit and obtained from his attested personal examination of specifically identified medical documents, whether or not such documents are attached to his affidavit, likewise are true], just as he could base his expert opinion at trial upon an assumption of the truth of the evidence adduced to support those allegations.” Id. at 322. As in Druckman, supra, it follows that the trial court erred in finding that the expert affidavit submitted by appellants failed to meet the pleading requirements of OCGA § 9-11-9.1.

Decided October 8, 1992 —

Reconsideration denied October 30, 1992

Franklin, Taulbee, Rushing & Bunce, James B. Franklin, Keith A. McIntyre, for appellants.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Love & Willingham, Daryll Love, Alston & Bird, Judson Graves, Harman, Owen, Saunders & Sweeney, H. Andrew Owen, Jr., Robert J. Higdon, for appellees.

In view of the holdings in Divisions 2-4, we elect not to address appellants’ remaining enumerations of error and the contentions in support thereof.

Judgment reversed.

Beasley and Andrews, JJ., concur.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A92A0763.
    BUCKNER v. COLQUITT ELECTRIC MEMBERSHIP CORPORATION.
    (424 SE2d 299)
   Sognier, Chief Judge.

Douglas Buckner brought suit against the Colquitt Electric Membership Corporation to recover damages for injuries from an electric shock he received when an aluminum pole he was using to harvest pecans on property owned by his father struck a high voltage transmission line owned by the EMC. The trial court granted summary judgment in favor of the EMC and Buckner appeals.

Appellant alleged in his complaint that appellee was negligent in failing to “trim or remove the tree in such manner as to keep the . . . ungrounded electrical conductors free from interference from the tree” and “maintain the line in such manner as to prevent unreasonable risk of injury to others.” Appellant and his wife, who was present at the time of the incident, testified at deposition that appellant had climbed a pecan tree carrying a long aluminum pole he intended to use to knock down nuts, and that he slipped on a branch, causing the pole to hit the power line. Appellant testified that he had been knocking pecans out of trees all his life and considered himself experienced at it, and that he was familiar with his father’s property, having lived there for several years.

Rickey Gaston, former Manager of Engineering and Operations for appellee, averred that the power line was 11 feet 7 inches from the tree trunk and 7 feet 4 inches from the closest tree limb. Although in their briefs the parties refer to industry standards regarding minimum clearance requirements for power lines near trees, the record reveals that no evidence was adduced by either appellant or appellee regarding those standards and no conclusion could have been drawn regarding any breach by appellee of a duty to abide by them.

Appellee’s motion for summary judgment pretermitted the question of whether appellee was negligent and assumed, arguendo, the truth of appellant’s allegations in that regard. The motion was made on the ground that despite any such negligence appellee could not be held liable because appellant’s injuries were not proximately caused by appellee’s acts or omissions but by appellant’s own negligent conduct in climbing a tree with a metal pole when the tree was in close proximity to power lines.

“The causal connection between an original act of negligence and injury to another is not broken by [an] intervening act if the nature of such intervening act was such that it could reasonably have been anticipated or foreseen by the original wrongdoer.” (Citations and punctuation omitted.) Beamon v. Ga. Power Co., 199 Ga. App. 309, 311 (404 SE2d 463) (1991). Appellant contends the trial court’s grant of summary judgment to appellee on this ground was erroneous because, given that appellee was negligent in maintaining the power lines, a genuine issue of material fact exists whether appellee should have foreseen and taken action to guard against actions such as appellant’s, even if those actions were themselves negligent.

One maintaining high tension lines must maintain them in such a manner and at such a location as not to injure persons who might reasonably be expected to come in contact with them. Carden v. Ga. Power Co., 231 Ga. 456-457 (202 SE2d 55) (1973). The issue presented is thus whether appellant’s activities leading to his injuries fell within the scope of those acts that might reasonably have been expected or foreseen by appellee. In numerous cases involving injuries caused by electric shock from power lines, this court has held that the foreseeability of the plaintiffs’ acts leading to the injury was a jury question regarding which reasonable minds might differ. E.g., Three Notch EMC v. Bush, 190 Ga. App. 858, 859 (1) (380 SE2d 720) (1989) (two employees of commercial grain operation electrocuted while moving grain auger when auger struck power line); Habersham EMC v. Dalton, 170 Ga. App. 483 (317 SE2d 312) (1984) (farmer used hoe attached to conduit pipe to clean chicken feed bin, causing injury when tool struck overhead power line); Collins v. Altamaha EMC, 151 Ga. App. 491 (260 SE2d 540) (1979) (workers driving farm equipment injured when they negligently struck guy wire securing utility pole); Gilbert v. Ocmulgee EMC, 100 Ga. App. 638 (112 SE2d 207) (1959) (farmer injured when long pipe used to clean electric pump in well struck power line). Given the holdings in these cases, and considering that no evidence was presented in the instant case regarding the frequency of pecan harvesting in that area, whether appellee had actual or constructive notice that such activity might take place, or whether pecan harvesters customarily used a metal pole, compare Gilbert, supra, we are constrained to agree with appellant that the trial court could not properly have concluded as a matter of law that appellant’s actions could not have been anticipated by appellee. See Malvarez v. Ga. Power Co., 166 Ga. App. 498, 499 (2) (304 SE2d 542) (1983).

Decided October 14, 1992 —

Reconsideration denied October 30, 1992.

Donaldson & Bell, George P. Donaldson III, for appellant.

Gray, Gilliland & Gold, T. Cullen Gilliland, John B. Austin, for appellee.

In Mathews v. Ga. Power Co., 175 Ga. App. 441 (333 SE2d 631) (1985) and Douberly v. Okefenokee Rural EMC, 146 Ga. App. 568 (246 SE2d 708) (1978), cited by appellee, we affirmed grants of summary judgment to power companies in actions brought against them by plaintiffs who had engaged in tree trimming or logging activities and were injured when tree limbs they were cutting fell across power lines. However, as noted by this court in Mathews, supra at 443 (1), those cases are factually distinguishable from cases involving “ordinary farm operations.” The activity of the plaintiff in this case, although not an ongoing or routine farm operation identical to those in Three Notch, Dalton, Collins, and Gilbert, supra, was a common agricultural activity. Moreover, appellant was not cutting the trees or branches in question, an activity this court has recognized as likely to cause the injury in question. See Mathews, supra.

Accordingly, as a material question of fact remained whether appellee should have or could have foreseen the specific activity engaged in by appellant, appellee was not entitled to summary judgment. Collins, supra.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.


author: Johnson, Judge.

text:
    A92A0826.
    DEPARTMENT OF PUBLIC SAFETY et al. v. SEAY.
    (424 SE2d 301)
   Johnson, Judge.

Luther R. Seay, Jr., was stopped by a police officer for various traffic violations. After Seay admitted that he had been drinking intoxicants, the officer advised Seay of his implied consent rights and asked him if he would consent to take a state-administered intoximeter test. Seay refused to take the test. The officer then transported Seay to a detention center, arriving at 12:30 a.m. Twenty minutes later, Seay asked a deputy if it would be possible for him to take the requested state-administered intoximeter test. The deputy responded that he would “get back with him.” Approximately 30 minutes later, Seay again asked a booking officer if he could take the test. The officer told Seay that he would “get back with him.” Upon his release from custody, Seay again requested to take the test, but the deputies told him that it was too late, and no test was ever administered.

An implied consent hearing was held by the Department of Public Safety. Pursuant to Georgia’s “Implied Consent Statute,” OCGA § 40-5-55, Seay’s driver’s license was suspended for his refusal to take the state-administered intoximeter test. Seay was granted an agency review of this decision, and the suspension of his driver’s license was upheld.

Seay appealed the agency decision to the superior court. The court reversed and set aside the agency decision based upon a finding that both the hearing officer and the agency had erred as a matter of law in concluding that the facts found were not sufficient to prove that Seay had rescinded his refusal to submit to the implied consent test. The department filed an application for discretionary review appealing from the superior court’s judgment setting aside the agency decision. We granted the department’s application for discretionary review to address the issue of whether an individual may rescind his or her refusal to submit to an intoximeter test.

1. In its first enumeration of error, the department contends that the superior court erred in finding that Seay rescinded his refusal to submit to an implied consent test. We disagree.

In State v. Highsmith, 190 Ga. App. 838 (380 SE2d 272) (1989), this court rejected the argument that once a suspect indicates to an officer that he refuses to submit to a blood-alcohol test, the matter is closed. “Such a rigid rule,” we said, “would not be consistent with the approach our courts have followed in applying the statute. . . .” Id. at 839. It is therefore clear that Georgia law recognizes the possibility that an individual may rescind his or her refusal to submit to an intoximeter test.

To date, there have been no decisions in Georgia which enumerate the factors to be used by the courts or responsible agencies in determining whether a refusal to submit to a state-administered chemical test has been properly rescinded. However, other states have established such guidelines. The factors consistently used by many foreign courts to make a determination whether a refusal has been properly rescinded were clearly expressed by the Supreme Court of Kansas in Standish v. Dept. of Revenue, Motor Vehicle Div., 235 Kan. 900 (683 P2d 1276, 1280) (1984).

In Standish, the court declared that in order to be effective, a subsequent consent after a refusal to take a chemical test must be made: “(1) within a very short and reasonable time after the prior first refusal; (2) when a test administered -upon the subsequent consent would still be accurate; (3) when testing equipment is still readily available; (4) when honoring the request would result in no substantial inconvenience or expense to the police; and (5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.” Id. at 1280. This court adopts these guidelines as its own. We hold that an initial refusal may be properly rescinded if such rescission is made in accordance with the foregoing guidelines.

In the case sub judice, testimony from an expert witness indicated that the delay in administering a test to Seay, from the time it would have been conducted had there not been a refusal to the time of his attempted rescission, would not have materially affected the results. Evidence in the record also revealed that Seay would not have been administered an intoximeter test until his arrival at the detention center because his arresting officer was not a certified intoximeter operator. Furthermore, while Seay was in custody, both intoximeter equipment and certified intoximeter operators were present and available.

After applying the guidelines set forth above to the instant case, we conclude that the superior court properly ruled that the agency and the hearing officer erred as a matter of law in concluding that a proper rescission had not occurred given the facts that they found.

2. The department further contends that the court erred in setting aside the agency decision because there was sufficient evidence in the record to support the agency decision to suspend Seay’s driver’s license. The agency’s decision to suspend Seay’s license was based on its conclusion that he had not rescinded his refusal to take the intoximeter test. This enumeration is without merit.

The superior court is not authorized to substitute its judgment for that of an administrative agency as to the weight of the evidence on questions of fact. OCGA § 50-13-19 (h). However, the court is authorized to reverse an administrative agency’s decision if the court finds that the decision is “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” OCGA § 50-13-19 (h) (5). In the instant case, the superior court made such a finding, concluding that Seay’s inquiries into the possibility of taking the intoximeter test constituted a rescission of his refusal to take the test as a matter of law. We find no error in the superior court’s decision. Accordingly, its judgment shall not be disturbed.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.

Decided October 14, 1992. —

Reconsideration denied October 30, 1992

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Melissa J. Lunsford, Staff Attorney, for appellants.

Awtrey & Parker, J. Lynn Rainey, for appellee.


author: Andrews, Judge.

text:
    A92A0950.
    ULBRICH et al. v. BATTS et al.
    (424 SE2d 288)
   Andrews, Judge.

We granted this interlocutory appeal to review the trial court’s refusal to dismiss the medical malpractice action brought by Batts et al. against Ulbrich et al. In his motions to strike the expert affidavit and dismiss the complaint, Ulbrich claimed Batts failed to comply with the expert affidavit requirements of OCGA § 9-11-9.1 in that the expert affidavit filed with the complaint states in part that the affiant reviewed certain medical records which were not attached to the affidavit. Ulbrich argues that Gooden v. Ga. Baptist Hosp. &c., 198 Ga. App. 407 (401 SE2d 602) (1991), holds that the failure to attach referenced medical records to an affidavit renders the affidavit insufficient under OCGA § 9-11-9.1, and requires dismissal of the complaint.

Without detailing the specific contents of the affidavit, Gooden affirmed the trial court’s order striking the affidavit and dismissing the complaint because the expert affidavit there was a copy rather than the original, and because the affidavit referred to and relied upon medical records which were not attached. As we read Gooden, the opinion holds that the affidavit was defective on its face at least in part because, without incorporation of facts from the referenced medical records, the affidavit alone failed to “set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim . . .” as required by OCGA § 9-11-9.1 (a).

Decided October 8, 1992 —

Reconsideration denied October 30, 1992

Love & Willingham, John A. Gilleland, Kimberly L. Woodland, for appellants.

Alston & Bird, Holly B. Barnett, Allen & Peters, Dennis A. Elíseo, Melody Wilder, Darrel L. Hopson, for appellees.

In giving the affidavit required by OCGA § 9-11-9.1, the expert is not required to demonstrate personal knowledge of the facts, but may base the affidavit on an assumption that facts in the medical record are true. See Druckman v. Ethridge, 198 Ga. App. 321, 322 (401 SE2d 336) (1991). “Under the statute, where a complaint asserts a damage claim and alleges professional malpractice, it is only necessary that there be filed contemporaneously with the filing of the complaint the affidavit of an expert stating that, in his opinion, such facts, if true, would constitute professional malpractice.” (Citation and punctuation omitted. Emphasis in original.) Id. at 322. The affiant may review the medical records, take the relevant facts therein to be true, and restate those facts in the affidavit to provide the basis for the expert opinion. As long as the affidavit itself adequately sets forth the factual basis for at least one negligent act or omission of the defendant alleged in the complaint, it is not necessary that the medical records from which the stated facts were taken be attached to the affidavit.

OCGA § 9-11-9.1 sets forth a pleading requirement the purpose of which “is to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need file his answer.” 0-1 Doctors Mem. Holding &c. v. Moore, 190 Ga. App. 286, 288 (378 SE2d 708) (1989). “A Section 9-11-9.1 affidavit should be construed most favorably to the plaintiff and all doubts should be resolved in plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible. Bowen v. Adams, 203 Ga. App. 123, 124 (416 SE2d 102) (1992).” Gadd v. Wilson & Co. &c., 262 Ga. 234 (416 SE2d 285) (1992). The expert affidavit in the instant case was sufficient on its face to satisfy the requirements of OCGA § 9-11-9.1 (a).

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

        Gooden’s passing reference to Smith v. Feliciano, 187 Ga. App. 86 (369 SE2d 346) (1988), as a basis for the trial court’s order striking the affidavit was dicta not essential to the holding of the case. Smith refers to the rule applied to summary judgment affidavits that “the affidavit of a physician [or other expert] setting forth an opinion based upon hearsay in the form of medical records or other material must attach sworn or certified copies of all papers or parts thereof referred to in the affidavit. ... An affidavit need not attach material upon which it is based if that material is part of the record in the case and is before the trial court, provided that the affidavit clearly identifies the record matter upon which it is based.” (Citations and punctuation omitted.) Hayes v. Murray, 252 Ga. 529, 530 (314 SE2d 885) (1984). Accordingly, in the context of summary judgment, to the extent that a plaintiffs expert affidavit is based on the medical records rather than the affiant’s personal knowledge of the facts, it would fail to have probative value if it neither attached the medical records nor clearly identified the matter in the trial record upon which it is based. Id. at 530-531. However, this is not the rule which governs the sufficiency of an expert affidavit required by OCGA § 9-11-9.1.


text:
    A92A1017.
    MUNSON v. THE STATE.
    (424 SE2d 290)
   Andrews, Judge.

Munson was tried and convicted of growing marijuana in violation of the Georgia Controlled Substances Act and appeals. In his sole enumeration of error he contends that the trial court erred by failing to grant his motion to suppress in that the affidavit forming the basis for the issuance of the warrant was insufficient.

The affidavit, which Henry County Officer Scott Perry executed before the magistrate, stated: “Within the past (24) twenty-four hours, prior to date and time of this affidavit, your Affiant was contacted by a Confidential and Reliable Informant. Said source stated to your affiant that he/she was told by an unwitting [third party source of information] that said third party had been at 451 Old Hudson Bridge Road within the past (7) seven days and observed marijuana being grown at said residence. Said unwitting further stated to Confidential Informant that he/she had been in residence before and observed marijuana and other controlled substances being used and sold at 451 Old Hudson Bridge Road. Said third party did not know that the Confidential Informant would contact the Sheriff’s Department and give them the information. Said Confidential Informant was also told by unwitting that Alvin Munson works for the Clayton County Water Authority and Alvin Munson has marijuana growing in Clayton County on property that is owned by Clayton County Water Authority.”

In the affidavit, Officer Perry swore that he had conducted an independent investigation in which he confirmed Munson’s address, that he owned a car, worked for Clayton County Water Authority and that he had been arrested before. Further, the affiant contacted the Clayton County Narcotic Task Force which investigated and found marijuana growing on the Clayton County Water Authority property. The affidavit concluded with a description of the location of the property.

At the hearing on the motion to suppress, Officer Perry testified that the confidential informant had never previously provided him with information, but that a Clayton County narcotics detective had informed him that based on information from this informant, four previous arrests for marijuana and cocaine possession had been made. Officer Perry further testified that due to a mistake on his part this information was omitted from the affidavit. The officer testified that the confidential informant did not know the name of the “unwitting” who related the information to him. He also testified that all the information was trüe and that he had no reason to believe that the search warrant was not a valid search warrant.

Munson raises a number of arguments regarding the affidavit, including that it does not support the reliability and credibility of the confidential informant because the informant received the information from an unknown third party. “Assuming without deciding that the affidavit did not provide the issuing magistrate with probable cause to believe that contraband would be found . . ., the exclusionary rule has nevertheless been modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective. United States v. Leon, 468 U. S. 897, 905 (104 SC 3405, 82 LE2d 677) (1984).” (Punctuation omitted.) Adams v. State, 191 Ga. App. 916 (383 SE2d 378) (1989).

“It is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient. Once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law. Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations. Id. 468 U. S at 921. The Court concluded that in the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. Id. 468 U. S. at 926.” (Citations and punctuation omitted.) Rodriguez v. State, 191 Ga. App. 241, 242 (381 SE2d 529) (1989).

“In the case before us, the evidence demonstrates without dispute that the officer who seized the [marijuana] did so in good faith reliance both on the validity of the warrant and on the existence of probable cause; and the impartiality and integrity of the issuing magistrate have not been challenged. Therefore, even assuming for the purpose of argument that the . . . affidavit failed to establish probable cause for a belief that [marijuana] would be found on the appel-' lant’s premises, the trial court nevertheless acted properly in denying the motion to suppress.” Rodriguez, supra at 243; see also Talley v. State, 200 Ga. App. 442 (3) (d) (408 SE2d 463) (1991).

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

Decided October 8, 1992 —

Reconsideration denied October 30, 1992

Edea M. Caldwell, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.


text:
    A92A1343.
    PAK v. THE STATE.
    (424 SE2d 292)
   Andrews, Judge.

Appellant was tried and convicted of masturbation for hire and appeals. Evidence at trial was that Detective Parmalee received a massage from appellant, for which he paid $60. At the conclusion of the massage, appellant offered the detective a sexual massage. She stated that there was no set price for the massage and that she would perform the sexual massage in exchange for a “tip.” No sum certain was set for the amount of tip and it remained Parmalee’s decision as to whether to tip appellant. She sexually massaged Parmalee and Parmalee tipped her $20.

The State raises a question of jurisdiction, which we find without merit, and therefore address appellant’s substantive enumerations.

In her two enumerations of error, appellant argues that the trial court erred in denying her motion for new trial and erred in denying her motion for judgment of acquittal notwithstanding the verdict. Both arguments are based on the fact that she did not demand a sum certain for performing the sexual massage, but simply indicated that Parmalee could tip her.

The statute at issue here is OCGA § 16-6-16 (a), which provides: “A person, including a masseur or masseuse, commits the offense of masturbation for hire when he erotically stimulates the genital organs of another, whether resulting in orgasm or not, by manual or other bodily contact exclusive of sexual intercourse or by instrumental manipulation for money or the substantial equivalent thereof.”

First, appellant argues that the accusation was insufficient since it did not specifically track the language of the statute and state that the act was done “for money or the substantial equivalent thereof. . . .” This contention is without merit. The accusation refers to a “masturbation for hire” and references the relevant Code section. It is apparent from the accusation that appellant was charged with performing masturbation for “money or the substantial equivalent thereof” and this argument is without merit. See generally OCGA § 17-7-71 (c).

Secondly, appellant contends that the evidence at trial was insufficient since it did not establish that the act was performed for money. She argues that she and Parmalee did not reach an agreement regarding the exact price, which was an essential element of a contract between the parties, and that therefore an element of the crime charged is missing.

Decided October 9, 1992 —

Reconsideration denied October 30, 1992

Stephen B. Wallace II, Albert B. Wallace, for appellant.

Keith C. Martin, Solicitor, Kimberly C. Carr, Jackie Stanton, Assistant Solicitors, for appellee.

This argument is also without merit. Although we have been unable to locate cases under OCGA § 16-6-16 (a), which address the requirement that the act be done “for money or the substantial equivalent thereof,” there are several cases which discuss the payment element in the analogous context of prostitution, OCGA § 16-6-9. For example, in Anderson v. State, 149 Ga. App. 460 (254 SE2d 459) (1979), appellant demurred to the accusation on a similar ground: that the accusation did not allege the amount of money requested by appellant. The court stated that the offense “does not require that the state allege or prove an exact amount of money; it requires only that the defendant perform or offer to perform sexual intercourse for money.” Similarly, in State v. Gaither, 236 Ga. 497 (1) (224 SE2d 378) (1976), the court explained that the section barring prostitution is applicable to “sellers” of sexual intercourse for money and that the offense is defined in terms of commercialization: in other words, the sale, offer to sell or consent to sell physical intimacies for money. See also Moore v. State, 231 Ga. 218 (3) (201 SE2d 146) (1973); Allen v. State, 170 Ga. App. 96 (316 SE2d 500) (1984); Shab v. State, 187 Ga. App. 513 (370 SE2d 775) (1988) (the defendant explained that he worked “on tips and we will discuss how much when we are through”).

In the instant case, appellant’s argument is not that her offer to perform the act was free of reference to money; she simply argues that the price of the service was uncertain. Despite this fact her offer was clearly a commercial offer; appellant agreed to perform the service in exchange for a tip and there was evidence that after the act, she requested a tip. To argue that the agreement between appellant and Parmalee was devoid of reference to money is disingenuous; the fact that the matter of the tip was left to Parmalee’s discretion does not change this.

Accordingly, the evidence supporting appellant’s conviction was sufficient and the trial court properly denied both of her motions.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.


text:
    A92A1459.
    THOMAS v. KITE.
    (424 SE2d 305)
   Johnson, Judge.

Jimmy Thomas sued Nancy Kite for personal injuries he allegedly received when the automobile in which he was a passenger was struck in the rear by the vehicle driven by Kite. The jury returned a verdict in favor of Kite. Thomas appeals, enumerating as error the denial of his motion for directed verdict on the issue of liability, the sufficiency of the evidence to support the verdict, and certain charges which the trial judge either gave or refused to give.

The evidence showed that after Kite drove through an intersection she glanced at a woman selling flowers on the side of the road. When she looked back up, the traffic in front of her had stopped in order to allow a car to enter or exit the roadway. Kite applied her brakes but was unable to stop before she hit the rear of the car in which Thomas was a passenger.

1. - Thomas contends the trial court erred in denying his motion for directed verdict. We agree. As in Drake v. Page, 195 Ga. App. 226 (393 SE2d 89) (1990), it is uncontroverted that Kite admitted that she did not have her eyes on the road immediately before seeing the cars stopped in the road in front of her because she had glanced up at a person selling flowers. No evidence was presented which could ascribe any negligence to the driver of the vehicle in which Thomas was riding, that the accident was unavoidable, or that it was the result of an unforeseen or unexplained cause. See Reed v. Heffernan, 171 Ga. App. 83, 87 (318 SE2d 700) (1984).

“ ‘The driver of a motor vehicle has no right to assume that the road ahead of him is clear of traffic, and he must maintain a diligent lookout therefor.’ [Cit.]” Drake, supra at 227. Kite admitted she looked away from the road and no evidence was presented suggesting that she would not have been able to avoid the collision if she had been looking. Accordingly, we hold that the trial court erred in denying Thomas’ motion for a directed verdict on the issue of liability and remand the case to the trial court with direction that the issue of damages only be resolved in a new trial.

2. The remaining enumerations of error asserted by Thomas are rendered moot by our holding in Division 1 above.

Judgment reversed.

Carley, P. J., and Pope, J., concur.

Decided October 20, 1992 —

Reconsideration denied October 30, 1992

L. B. Kent, for appellant.

Page, Scrantom, Harris & Chapman, Richard A. Marchetti, Alvin L. Harris, for appellee.


author: Cooper, Judge.

text:
    A92A0936.
    WALKER v. THE STATE.
    (424 SE2d 364)
   Cooper, Judge.

Appellant was convicted by a jury on two counts of armed robbery and one count of possession of a firearm during the commission of a crime. She challenges her convictions on several grounds.

1. Appellant’s argument that the evidence was insufficient to support the jury verdict against her is without merit. Two convenience store employees testified that they were robbed at gunpoint by a lone perpetrator later identified as appellant’s co-defendant. One of the employees stated that he saw a second person in the co-defendant’s car but was not able to identify that person. The employees immediately called the police with a description of the robber’s vehicle. Law enforcement officers testified that they stopped a car matching the description given by the victims, in which appellant was a passenger, approximately four minutes after the robbery occurred. Officers testified that when they first passed by the vehicle, and again when the vehicle was stopped and appellant was ordered to show her hands, appellant was bent down in the passenger seat, doing “something” with the floorboard of the car. The arresting officers immediately found money taken from the convenience store stuffed under the passenger seat and later found a loaded and cocked gun stuck behind the carpet on the front floorboard on the passenger side. Appellant admitted owning the gun and testified she had purchased it several months earlier. Appellant further admitted going to the convenience store with the co-defendant, with whom she had been living for approximately seven months, but stated that she did not know he intended to rob it. There was also evidence suggesting that appellant was present when the co-defendant committed another armed robbery three days before the convenience store robbery at issue here, though the jury found her not guilty of intentionally assisting or participating in that crime as charged in the indictment. Viewing the evidence presented in the light most favorable to the verdict, it was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that appellant intentionally aided and abetted the co-defendant in the commission of two counts of armed robbery and one count of possession of a firearm during commission of a crime. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The two counts of armed robbery on which appellant was indicted and convicted both arose out of the robbery of a single convenience store in which property was taken at gunpoint from two different employees. Appellant argues that, because the two counts were based on the same “transaction,” her motion for directed verdict on the latter armed robbery count should have been granted to avoid multiple convictions for a single offense. However, “[rJobbery is a crime against possession, and is not affected by concepts of ownership. . . . [0]ne may only rob a person, and not a corporate entity. . . . [Cit.]” Creecy v. State, 235 Ga. 542, 544 (5) (221 SE2d 17) (1975). When property was taken at gunpoint from two different employees, two separate offenses of armed robbery were committed, regardless of whether all the property taken was owned by the store. See Lawrence v. State, 198 Ga. App. 287 (3) (401 SE2d 275) (1991); Carter v. State, 156 Ga. App. 633 (3) (275 SE2d 716) (1980). Accordingly, the trial court’s denial of appellant’s motion for directed verdict on the latter armed robbery count did not result in multiple convictions for a single offense and was not erroneous.

3. Appellant next contends that the trial court erred in failing to excuse for cause a juror who previously worked at the convenience store that was robbed. This court has held that “ ‘a person is not competent to serve as a juror in a cause when there exists any business relation between himself and one of the parties which may tend to influence the verdict.’ [Cit.]” Daniel v. Bi-Lo, 178 Ga. App. 849, 850 (1) (344 SE2d 707) (1986). “[T]he reason for the rule is to eliminate those jurors whose impartiality may be called into question by the existence of a business relationship whereby the juror could be motivated by financial concerns . . . ,” id. at 851, and to avoid forcing jurors “into the position of choosing between adherence to an oath of impartiality and the pecuniary interests of a party with whom the juror has a business relation,” Crumpton v. Kelly, 185 Ga. App. 245, 246 (1) (363 SE2d 799) (1987). In this case, however, the challenged juror was not employed by the convenience store at the time of trial. Because the juror’s livelihood no longer depended on either the favor or the economic well-being of the convenience store, the inference of bias that arises in the case of current employees did not arise here. In the absence of evidence of an interest in the outcome of the case, therefore, the trial court did not abuse its discretion in refusing to excuse for cause the convenience store’s former employee. See Page v. Janko, 200 Ga. App. 547 (1) (409 SE2d 48) (1991).

4. Lastly, appellant argues that the trial court erroneously placed appellant’s character in issue by failing to swear witnesses separately for appellant and the co-defendant with whom appellant was jointly tried. Because the oaths contained a listing of all the charges against the co-defendants without distinguishing which charges were against which co-defendant and appellant’s co-defendant was charged with several vehicular offenses with which appellant was not charged, appellant contends the charges against her co-defendant improperly reflected badly on her own character. After appellant’s objection, however, the trial court explained to the jurors that it was not going to have the clerk administer two different oaths to each witness but that not all the charges listed applied to both defendants. It further explained to the jurors that the words of the oaths were “in no way an indication that anyone is guilty of anything.” No evidence or argument was presented at trial tending to suggest that appellant was driving the vehicle. The court’s charge to the jury emphasized that each defendant was to be considered separately and independently and included a reading of the charges in the indictment which clearly specified that only appellant’s co-defendant was charged with the vehicular offenses. Moreover, the jurors were given a copy of the indictment, again showing that only appellant’s co-defendant was charged with the vehicular offenses. Under these circumstances, the trial court did not err in refusing to swear witnesses separately with respect to the two co-defendants.

Decided October 30, 1992.

Barkley & Garner, Richard E. Barnes, for appellant.

Stephen F. Lanier, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Pope, Judge.

text:
    A92A1220.
    AMERICAN TRUCK LINES, INC. v. ALBINO.
    (424 SE2d 367)
   Pope, Judge.

Plaintiff/appellant American Truck Lines, Inc. brought suit against defendant/appellee Joseph F. Albino d/b/a A. J. Logistics, Inc. d/b/a A. J. Express seeking to recover freight charges incurred by defendant for transportation (trucking) services rendered by plaintiff. Plaintiff subsequently filed a motion for summary judgment contending that defendant Joseph Albino should be personally liable for the freight charges incurred in this case because such charges were incurred while defendant was purporting to act for a nonexistent corporate entity, A. J. Logistics, Inc. In support of its motion, plaintiff presented, inter alia, a document dated May 2, 1991 from the Secretary of State of the State of New Jersey certifying that A. J. Logistics, Inc. had not been filed in the New Jersey Secretary of State’s office. In response to plaintiff’s motion, and in support of his own motion for summary judgment, defendant presented his affidavit stating that A. J. Logistics, Inc. was a New Jersey corporation; attached to the affidavit was a certificate of incorporation which was stamped “filed” on May 14, 1984 by the New Jersey Secretary of State. After considering this evidence, the trial court entered an order denying both parties’ motions for summary judgment.

On August 21, 1991, defendant filed a second motion for summary judgment. In support of this motion defendant presented a document from the New Jersey Secretary of State dated August 7, 1991, certifying that the charter for A. J. Logistics, Inc. was filed in the Secretary of State’s office on May 14, 1984, and that there had been no dissolution of the corporation as of the date of the certification. Plaintiff opposed the motion for summary judgment pointing to the discrepancy in the certified documents each party obtained from the New Jersey Secretary of State’s office. On October 18, 1991, the trial court granted defendant’s motion for summary judgment and plaintiff filed this appeal.

1. We find no error in the grant of summary judgment in this case. The primary issue in this case is whether defendant Joseph Albino should be individually and personally liable for freight charges incurred in connection with a business operation because he purported to act in a corporate capacity on behalf of a corporate entity which did not exist. In support of his second motion for summary judgment defendant presented a certificate from the New Jersey Secretary of State’s office specifying that the documents necessary to incorporate A. J. Logistics had been filed in that office and that at the time of the certification the corporation had not been dissolved. The earlier filed document of plaintiff merely provided that A. J. Logistics had not been filed in the Secretary of State’s office and made no representation concerning the filing of documents necessary to incorporate that entity. Such a statement was inadequate as a matter of law, inasmuch as a corporation cannot be filed, but only the documents necessary to incorporate. Thus, the certification defendant obtained in support of his second summary judgment motion, in addition to being the most recent statement by the New Jersey Secretary of State concerning the corporate status of A. J. Logistics, Inc. is also the only complete evidence of record concerning the issue to be resolved.

“Once the party moving for summary judgment has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the non-movant, who must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact. [Cits.]” Weldon v. Del Taco Corp., 194 Ga. App. 174 (390 SE2d 87) (1990). In the instant case and in the context of the latest motion for summary judgment, defendant produced the explicit certificate of the Secretary of State of the State of New Jersey which was entered on August 7, 1991, and which unequivocally certified that the corporation came into existence on May 14, 1984, and that it had not been dissolved as of the date of the Secretary of State’s certificate. In response, plaintiff did not come forward with anything to rebut this August 7, 1991 certificate, but merely relied upon the earlier filed statement that the corporation had not been filed in the Secretary of State’s office. It follows that the trial court correctly granted summary judgment to defendant, finding as a matter of law that the corporation did exist at all times relevant to the dealings between the parties.

Decided October 30, 1992.

Arthur B. Seymour, for appellant.

Michael G. Lambros, for appellee.

2. Plaintiff also argues that material issues of fact remain as to its knowledge that it was dealing with a corporate entity. As demonstrated by an affidavit filed in support of its first motion for summary judgment, plaintiff first sought to establish defendant’s individual liability by arguing that defendant had “purported to act” for a corporate entity which did not exist. By this statement plaintiff demonstrated its knowledge that it was dealing with a corporate entity. Plaintiff cannot argue that Albino should be individually liable here both because he “purported to act” for a corporate entity which did not exist and because he purported to act individually and not for a corporate entity. In sum, and pretermitting whether this argument was properly raised below, we find no merit to this enumeration.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


author: Carley, Presiding Judge.

text:
    A92A1394.
    STROZIER v. CLARK.
    (424 SE2d 368)
   Carley, Presiding Judge.

Seeking to recover for injuries sustained in an automobile collision, appellant-plaintiff brought the instant action against appelleedefendant. The case was tried before a jury and a verdict in favor of appellee was returned. Appellant appeals from the judgment entered by the trial court on the jury’s verdict.

Of the twenty-four prospective jurors, five were black. Of these five, appellee used peremptory strikes against four. After voir dire, appellant made a Batson motion and the trial court conducted a hearing, wherein appellee’s counsel offered explanations for his employment of peremptory strikes against the four black prospective jurors. After the hearing, the trial court denied the Batson motion and appellant’s only enumeration of error on appeal relates to this ruling.

1. “[C]ourts must entertain a challenge to a private litigant’s racially discriminatory use of peremptory challenges in a civil trial.” (Emphasis supplied.) Edmonson v. Leesville Concrete Co., 500 U. S. _, _ (II B) (111 SC 2077, 114 LE2d 660) (1991). As the Supreme Court’s grant of certiorari and remand in Chavous v. Brown, _U. S--- (111 SC 2791, 115 LE2d 966) (1991) clearly demonstrate, the holding in Edmonson does not merely apply to civil actions in federal court. It applies equally to civil actions in state courts. See Chavous v. Brown, 409 SE2d 356 (S.C. 1991) (opinion on remand from Supreme Court). The effect of Batson and Edmonson is not to declare our statutes on peremptory challenges unconstitutional. Those decisions merely provide for a procedure to insure that the peremptory challenges that are authorized by statute are not employed in a racially discriminatory manner. It is not the exercise of peremptory strikes that is forbidden, but the exercise of peremptory strikes “based on either the race of the juror or the racial stereotypes held by the party.” Georgia v. McCollum,_U. S._,_(III D) (112 SC 2348, 120 LE2d 33) (1992). “[T]he only limitation newly placed upon the ‘full peremptory character of the historic challenge’ is a requirement of racial neutrality. [Cit.]” Gamble v. State, 257 Ga. 325, 326 (2) (357 SE2d 792) (1987).

2. In a criminal case, unlike in a civil case, there is a statutory requirement that jurors are to be sworn subsequent to their selection. OCGA § 15-12-166; Gamble v. State, 141 Ga. App. 304 (1) (233 SE2d 264) (1977); Sakobie v. State, 115 Ga. App. 460 (2) (154 SE2d 830) (1967). Accordingly, in a criminal case there is a procedural requirement that a Batson motion be made subsequent to the selection of jurors but prior to the trial jury being sworn pursuant to OCGA § 15-12-139. State v. Sparks, 257 Ga. 97, 98 (355 SE2d 658) (1987). In a civil case, the oath that is prescribed by OCGA § 15-12-138 is to be given to each panel of the trial jury and, by its terms, that oath is to be given prior to the selection of jurors to serve in any individual case. Accordingly, in a civil case there can be no procedural requirement that a Batson motion be made prior to the trial jury being sworn, because no statute requires the administration of a separate oath subsequent to selection of a trial jury in a civil action. All that is required in a civil case is that the Batson motion be made subsequent to selection and prior to the commencement of the trial. “In this manner, the trial court will have an opportunity to determine whether there has been a violation . . . under Batson and, if so, to remedy that violation and proceed to the trial of the case.” State v. Sparks, supra at 98. In the instant case, appellant’s Batson motion was timely filed.

3. Appellee does not contend that employment of peremptory strikes against four of the five black potential jurors would not serve to establish a prima facie case of racial discrimination. “Thus, the only remaining question is whether [appellee] sufficiently showed ‘that discriminatory purpose was not involved.’ [Cit.]” Gamble v. State, supra at 326 (5).

4. As to three of the four black potential jurors who were the subject of appellee’s peremptory strikes, appellee’s counsel offered a racially neutral reason. Those three either knew appellant and her family or presently worked for appellant’s previous employer. Affinity between these prospective jurors and appellant was a racially neutral explanation for appellee’s employment of peremptory strikes. “The explanation ‘need not rise to the level justifying exercise of a challenge for cause,’ but it must be ‘neutral,’ ‘related to the case to be tried,’ and a ‘ “clear and reasonably specific,” explanation of his “legitimate reasons” for exercising the challenges.’ [Cits.]” Gamble v. State, supra at 327 (5).

5. As to the fourth black potential juror, appellee’s counsel initially offered a racially neutral explanation. Appellant was young and the prospective juror was of the same approximate age. Since appellee was apparently elderly, her counsel was authorized to consider the disparity in age between his client and appellant as a factor in the selection of the jury and to use a peremptory strike against a prospective juror who, because of her age, might consciously or unconsciously identify with appellant rather than with appellee. Under the circumstances, age was a “neutral” explanation which was “related to the case to be tried.” See Bess v. State, 187 Ga. App. 185, 186-187 (1) (369 SE2d 784) (1988) (unmarried prospective juror over 40 and presumed childless sufficiently neutral explanation in a child molestation case).

However, appellee’s counsel went further and indicated that he was also skeptical of the prospective juror’s denial on voir dire that she actually knew appellant or the witnesses who would testify in the case. According to appellee’s counsel, he had had, in a totally unrelated criminal case, “the unpleasant experience of observing the jurors operating along racial lines outside of the Grand Jury room. And there was a lot of misconduct in that some of the Grand Jurors were discussing with some of the victim’s family what they should and should not do. . . . [I]t was an unfortunate circumstance . . . that makes me very suspicious that [the prospective juror and appellant] do know each other. ... I doubt very seriously that they’ve lived in this community for the period of time that they have and the families don’t know each other. . . . My gut feel[ing] was that she was a dangerous juror, and perhaps may have wanted on this case.”

Decided October 30, 1992.

Helms & Helms, Catherine H. Helms, J. Jeffrey Helms, for appellant.

John T. Croley, Jr., for appellee.

“If the prospective juror had betrayed the possible existence of [her] own racist opinions, a peremptory strike would be warranted.” Randolph v. State, 203 Ga. App. 115, 117 (3) (416 SE2d 117) (1992). However, the mere fact that jurors in a totally unrelated case had been divided “along racial lines” and had been guilty of “misconduct” lends no support whatsoever to the belief that the prospective juror had been dishonest on voir dire and would act “along racial lines” or engage in “misconduct” in the instant case. An assumption that the prospective juror in the instant case would likewise act “along racial lines” and engage in “misconduct” would constitute “an impermissible assumption ultimately arising solely from the juror’s race.” Randolph v. State, supra at 117 (3).

“While we realize that it may be unrealistic to expect [counsel] to put aside every improper influence when selecting a juror, we conclude that that is exactly what the law requires.” Speaker v. State, 740 SW2d 486, 489 (Tex. App. 1987). “Even though [appellee’s counsel] may have given one racially neutral explanation, the racially motivated explanation ‘vitiates the legitimacy of the entire (jury selection) procedure.’ [Cits.]” Moore v. State, 811 SW2d 197, 200 (Tex. App. 1991). See also State v. Tomlin, 384 SE2d 707, 710 (S.C. 1989); McKinney v. State, 761 SW2d 549, 551 (Tex. App. 1988). Appellee “failed to rebut [appellant’s] prima facie case. We must therefore reverse.” Gamble v. State, supra at 330 (7). See also Randolph v. State, supra at 117 (3).

Judgment reversed.

Pope and Johnson, JJ., concur.


author: Sognier, Chief Judge. dissenting.

text:
    A92A1455.
    BOND et al. v. PARTEN.
    (424 SE2d 353)
   Sognier, Chief Judge.

This declaratory judgment action was filed by the sole Commissioner of Franklin County in his official capacity to determine the Commissioner’s power vis-a-vis that of the defendant county Advisory Board to enter into a lease-purchase contract for a county jail. The trial court held that the Commissioner is authorized to contract for all county purchases without prior approval from the Advisory Board. The members of the Advisory Board filed this appeal from the court’s order.

Appellee has moved to dismiss the appeal on the ground of mootness. As supplemented by evidence submitted to this court, Ring v. Williams, 192 Ga. App. 329-330 (1) (384 SE2d 914) (1989), the record reveals that in a referendum held on March 3, 1992, two months after the trial court’s order was entered, the voters of Franklin County approved a one cent sales tax increase, the proceeds of which are earmarked for the construction of the jail at issue in this action. According to the affidavit testimony of the county attorney, bonds for the construction were to be validated and the construction was scheduled to begin in summer 1992. In addition, the General Assembly enacted legislation creating a board of commissioners for Franklin County effective January 1, 1993, Ga. L. 1991, p. 4681, and the voters also approved the adoption of a commission form of government in the March 3 referendum. Appellee contends the issue raised in the declaratory judgment action has become moot because of these votes.

The Appellate Practice Act requires dismissal of an appeal when, inter alia, “the questions presented have become moot.” OCGA § 5-6-48 (b) (3). “A moot case is one which seeks to determine an abstract question which does not arise upon existing facts or rights. . . . The fact that the appellants might possibly derive some future benefit from a favorable adjudication on an abstract question . . . will not require this court to retain and decide the case.” (Citations and punctuation omitted.) Chastain v. Baker, 255 Ga. 432, 433 (339 SE2d 241) (1986).

Appellants’ sole enumeration of error is that “[t]he trial court erred in determining that the Franklin County Advisory Board lacked budgetary veto authority over proposals submitted by the Franklin County Commissioner.” The concrete fact under which this action arose was the Commissioner’s desire to contract for construction of the jail without budgetary approval from any other source. The question of the Board’s “budgetary veto authority” over that project became moot when the voters provided the budgetary authority in the March 1992 referendum. Consequently, the fact under which the dispute over the Board’s budgetary veto authority arose no longer exists, and the question of the Board’s veto power over the Commissioner becomes an abstract question that does not arise upon “existing facts or rights.” Id. The dissenters’ concern for other issues that may arise concerning the construction of the jail or other county matters is irrelevant because the issue actually presented on appeal has become moot, and thus any ruling would be merely an “adjudication on an abstract question.” Id. Moreover, a decision on the merits would provide no benefit to appellants, for whether we affirmed or reversed, the budgetary authority for the jail has been granted. See National Coun cil of Jewish Women v. Cobb County, 247 Ga. 198, 199 (275 SE2d 315) (1981) (appeal will be dismissed when a decision on the merits would be of no benefit to the complaining party).

While “a case may be moot, but,' because the error is capable of repetition and yet evades review, the appeal will be considered,” (citations and emphasis omitted), Chastain, supra at 433-434, that approach is not required here because there is no reason why any future ruling on the budgetary authority issue would evade review. See id. at 434. Accordingly, the appeal is dismissed as moot.

Appeal dismissed.

Birdsong, P. J., Pope, Cooper and Andrews, JJ., concur. McMurray, P. J., Carley, P. J., Beasley and Johnson, JJ., dissent.

McMurray, Presiding Judge,

dissenting.

As I would affirm the judgment of the superior court rather than dismiss this appeal, I respectfully dissent. In my view, the limited information provided in the motion to dismiss the appeal is not sufficient to demonstrate that all of the issues on appeal concerning the limits of the powers of the sole commissioner are moot. Even after the decision to build a jail is made and the funding issue resolved, questions remain as to the authority of the sole commissioner to contract for the facility without the approval of the advisory board. The majority’s oversimplification of the issues on appeal reduce any budgetary question to one of spend or do not spend, as though following a decision to spend it is self-evident to all concerned what should be purchased.

We are informed that construction of the jail was to have begun during the summer of 1992, a time preceding the decision of this case. Yet, who possessed the authority to contractually bind the county so as to permit the genesis of the project? Before construction could begin, the location and design of the jail, the identity of the parties who would construct the facility, the terms of the financial arrangements, and many related issues remained to be resolved by the appropriate party. These issues are not, as the majority suggests, issues which may arise in the future, but are an integral part of any purchase decision. The resolution of the issues presented on this appeal would determine who has authority to make those decisions and thus control the manner in which large sums of public funds are spent.

The motion to dismiss the appeal also relies on a pending change to a commission form of government for Franklin County. However, this change does not occur until January 1, 1993, and in the interim the issues contained in this appeal as to the powers of the sole county commissioner will continue to be justiciable. Appellee Parten’s motion to dismiss the appeal on grounds of mootness should have been denied.

Decided October 30, 1992.

James E. Cornwell, Jr., Solicitor, for appellants.

Blasingame, Burch, Garrard & Bryant, J. Ralph Beaird, Andrew J. Hill, Jr., Stephen E. Smith, for appellee.

The superior court’s declaration of the rights of the party is correct. The conclusions stated in the superior court’s order reflect a careful and comprehensive review of the relevant statutes. See Ga. L. 1956, p. 2603; 1960, p. 2143; 1967, p. 2038; 1976, p. 3607; 1980, p. 4177; 1987, p. 4364; 1990, p. 2555; 1991, p. 4681. I would hold that the sole county commissioner may act alone in committing the county for the purchase of a new jail.

I am authorized to state that Presiding Judge Carley, Judge Beasley and Judge Johnson join in this dissent.


text:
    A92A1497.
    BILLUPS v. THE STATE.
    (424 SE2d 355)
   Sognier, Chief Judge.

Ricky Billups was convicted of two counts of violating the Georgia Controlled Substances Act, OCGA § 16-13-20 et seq., by selling cocaine and by selling a noncontrolled substance upon the implied representation that it was a controlled substance. He appeals.

The evidence adduced at trial showed that in the summer of 1991, Betty Echols, an undercover agent with the Ocmulgee Drug Task Force, was engaged in an undercover operation in Putnam County. Echols testified that on August 1, 1991, while accompanied by a confidential informant at a nightclub in Eatonton, she purchased a white powdery substance contained in a plastic bag from a man she later identified as appellant. Echols further testified that in the early morning hours of August 16, 1991, she drove by the same nightclub with the same confidential informant and again encountered appellant. She asked him for a “ten,” and after informing Echols that only “twenties” were available appellant took her $20 bill and “dropped in [her] hand a small rock looking substance.” The chain of custody of the substances purchased by Echols was proved, and the State’s forensic chemist testified that the white powder in the plastic bag was cocaine and the small rock was simply a pebble or stone, such as one might pick up “off the ground.”

1. Appellant contends the trial court erred by denying his motion for a directed verdict of acquittal on the charge of selling a noncontrolled substance upon the implied representation that the substance was cocaine. See OCGA § 16-13-30.1 (a) (1) (A). An implied representation may be shown by proving that the sale price of the substance was “substantially in excess of the reasonable value of the noncontrolled substance,” and that the substance sold was “substantially identical to a specific controlled substance” in appearance. OCGA § 16-13-30.1 (b) (1), (2). Contrary to appellant’s argument, there was evidence authorizing the jury to find that the statutory requirement was satisfied, given that the appearance of the noncontrolled substance was so “substantially identical” to that of rock cocaine that an undercover agent whose assignment was to purchase actual cocaine bought it.

We likewise find without merit appellant’s argument that because the State failed to prove the “reasonable value” of the pebble no conclusion could be drawn that the sale price of the pebble was “substantially in excess of” its actual reasonable value, and thus the State failed to show appellant had impliedly represented that the substance was cocaine, a necessary element of the crime charged. The jury could have concluded, based on their common sense and “the ordinary test of human experiences,” see Lee v. State, 57 Ga. App. 164, 166-167 (194 SE 846) (1938), that $20 is “substantially in excess of” the “reasonable value” of an ordinary pebble such as one might pick up off the ground. No expert testimony or other evidence was required to authorize the jury to draw this conclusion, and since the evidence was sufficient to authorize a conviction and did not demand a verdict of acquittal, the trial court did not err by denying appellant’s motion for a directed verdict of acquittal made on this ground. See generally Levitt v. State, 201 Ga. App. 63-64 (1) (410 SE2d 170) (1991).

2. Appellant contends that Echols’ testimony that she was positive appellant was the person from whom she made the purchases in question was conclusory and impermissibly invaded the jury’s province of determining her credibility. We do not agree. In an analogous context — a proposed in-court identification where an impermissibly suggestive pretrial identification has taken place — our courts have held that the admissibility of a proposed in-court identification depends on several factors indicating reliability, including the level of certainty demonstrated by a witness in identifying the accused. See, e.g., Wiley v. State, 250 Ga. 343, 348 (296 SE2d 714) (1982). Since “[reliability is the criterion for determining admissibility” of identification evidence, Anthony v. State, 160 Ga. App. 842, 845 (287 SE2d 686) (1982), we find this rationale to be equally applicable in the circumstances at issue. Accordingly, we conclude that allowing a witness to state certainty regarding her identification of the defendant cannot be objectionable.

3. In his remaining enumeration of error, appellant contends the trial court erred by admitting, over a hearsay objection, Echols’ testimony that the confidential informant had told her appellant’s name. This contention and appellant’s objection are not well taken, as the testimony in issue was given by Echols not for the purpose of identifying appellant, but for other reasons, including explaining her conduct in writing appellant’s name on the envelopes in which she placed the substances purchased in order to preserve the chain of custody. The testimony was thus not hearsay. See generally Fugitt v. State, 256 Ga. 292, 295 (1) (c) (348 SE2d 451) (1986); Hurston v. State, 194 Ga. App. 226 (390 SE2d 119) (1990). Based on his appearance, Echols positively identified appellant in court as the person from whom she had made the purchases. The fact that his name was related to her by the informant was thus superfluous and immaterial, and the trial court did not err by allowing the testimony.

Decided October 30, 1992.

Lawrence & Ford, Francis N. Ford, for appellant.

Joseph H. Briley, District Attorney, James L. Cline, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A1520.
    GRIER v. THE STATE.
    (424 SE2d 358)
   Sognier, Chief Judge.

Alexander M. Grier was convicted of sale of cocaine (Count 1) and possession of cocaine with intent to distribute (Count 2). He appeals from the denial of his motion for new trial.

1. Appellant contends the evidence was insufficient to support the verdict, asserting specifically that the State did not prove beyond a reasonable doubt that he was the person who had sold cocaine to undercover GBI agents. As to Count 1, GBI Agent Giles testified that he was participating in an undercover narcotics operation in Butts County on the night of January 8, 1991. Giles testified that he, fellow agent Michael Ayers, and a confidential informant saw a man he identified as appellant standing in an apartment doorway as they drove past in Giles’s truck. Giles stated that appellant twice called to them to circle the block, and on their third passage he walked up to the passenger window, handed them several pieces of crack cocaine, and asked for money. During the short conversation that ensued, Giles turned on the truck interior light to illuminate appellant’s face. Although Giles first testified appellant had a distinctive scar on his face but then was unable to discern a scar when he viewed appellant at trial, he stated he was certain of his in-court identification. Agent Ayers testified consistently with Giles and also identified appellant as the perpetrator.

With regard to Count 2, Giles testified that he obtained an arrest warrant for appellant and executed it on February 22, 1991. Giles entered appellant’s home to make the arrest, and when he searched appellant he found in appellant’s back pocket a cigarette package filled with seven pieces of crack cocaine.

During his testimony, appellant admitted having seen and talked with Giles on the January night in question, but he denied selling cocaine to the agents. He also denied having any cocaine on his person when he was arrested. Appellant also testified that he had no scar on his face, and the court allowed him to approach the jury box so that the jurors could look closely at him.

Although there was a discrepancy in Giles’s identification of appellant as the perpetrator of Count 1, Giles did have ample opportunity to observe appellant, and Giles did testify he was certain of his identification of appellant. Moreover, appellant admitted having talked with Giles on the night in question. Determination of the credibility of the witnesses is solely for the jury, Miasso v. State, 191 Ga. App. 222, 223 (381 SE2d 315) (1989), and under the evidence presented the jurors were authorized to believe the GBI agents’ identification testimony. See id.

The identification of appellant as the perpetrator of Count 2 is not in dispute. Again, the jury was authorized to believe Giles’s testimony that at the time of his arrest appellant was in possession of cocaine, and the jury was authorized to conclude further from the quantity of cocaine appellant possessed and the evidence of his prior sale to the agents that he possessed the cocaine with the intent to distribute it. See Davis v. State, 200 Ga. App. 44-45, 46 (3) (406 SE2d 555) (1991). Accordingly, we find the evidence sufficient to satisfy the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Davis, supra.

2. Appellant also enumerates as error the trial court’s decision to allow the State to introduce into evidence a certified copy of a prior indictment and the ensuing judgment of conviction of appellant for sale of cocaine. Appellant objected below and on appeal on the grounds that the court had not held the hearing required by USCR 31.3 (B) and the State had not submitted evidence to show the similarity of the transactions.

In two recent cases, Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) and Stephens v. State, 261 Ga. 467, 468-469 (6) (405 SE2d 483) (1991), the Supreme Court outlined the procedure to be followed by the State when seeking to admit evidence of prior criminal acts, which this court then summarized in Little v. State, 202 Ga. App. 7 (1) (413 SE2d 496) (1991). In the case at bar, the trial court did hold the requisite hearing, but the State failed to introduce, either at the hearing or during the trial, evidence establishing the similarity between the former crime and the crime charged. Instead, over appellant’s objection, the State merely introduced a certified copy of the conviction and expressly declined to produce any evidence of the circumstances of the prior crime. This procedure was held in Williams, supra at 642-643 (2) (c, d) and Little, supra at 8 (1), to be reversible error.

Decided October 30, 1992.

William A. Fears, for appellant.

Tommy K. Floyd, District Attorney, Gregory A. Futch, Assistant District Attorney, for appellee.

However, in his ruling on appellant’s motion for new trial the trial judge held the prior conviction properly was admitted for the purpose of impeaching appellant’s testimony. The transcript reveals that although the court had informed counsel that the prior conviction would be admitted, it was not published to the jury until appellant testified on cross-examination that “I didn’t sell no dope.” The prosecutor asked “[y]ou don’t sell any dope?” and appellant responded “[n]o, I don’t.” The prosecutor then presented to appellant for his verification the certified copy of his prior conviction and questioned him about the offense.

USCR 31.3, which was the foundation for the Supreme Court’s rulings in Williams and Stephens, provides in paragraph (E) that “[n]othing in this rule is intended to alter the rules of evidence relating to impeachment of witnesses.” Thus, if the evidence at issue was otherwise admissible for impeachment, the failure to follow USCR 31.3 (B) would not be error. Chezem v. State, 199 Ga. App. 869, 871 (406 SE2d 522) (1991). If a defendant testifies at his trial and denies having committed a certain crime, a certified copy of his conviction for such an offense would be admissible to establish the falsity of the defendant’s assertion. Williams v. State, 257 Ga. 761, 762-763 (4, 5) (363 SE2d 535) (1988). Accordingly, we agree with the trial court that the evidence was admissible, and we affirm the judgment rendered below.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A1605.
    WATSON v. THE STATE.
    (424 SE2d 360)
   Carley, Presiding Judge.

Appellant was indicted for murder and, after a jury trial, was found guilty of voluntary manslaughter. Appellant’s earlier appeal was dismissed for failure to file a timely notice of appeal. Watson v. State, 202 Ga. App. 667 (415 SE2d 306) (1992). Appellant’s instant appeal is pursuant to the trial court’s written order granting him an out-of-time appeal.

1. “[A]ppellant raises the general grounds. Our review of the record demonstrates that ‘appellant may not successfully contend that the evidence does not support his conviction, because he affirmatively offered the alternative theory of voluntary manslaughter to the jury.’ [Cits.] ‘Since there is evidence which supports a verdict of guilty of the more serious offense [of murder], and there is slight evidence of the lesser included offense [of voluntary manslaughter], appellant, who requested a charge on and was convicted of the lesser offense, may not successfully urge the general grounds on appeal. (Cit.)’ [Cit.]” Ellis v. State, 174 Ga. App. 535 (1) (330 SE2d 764) (1985).

2. The trial court’s admission into evidence of three pre-autopsy photographs of the victim’s body is enumerated as error.

Contrary to appellant’s objection below and his contention on appeal, “[p] re-autopsy photographs which demonstrate the location and nature of the wounds are relevant to the issue of death and may be introduced in evidence even though the photographs are duplicative of expert testimony relating to the cause of death. [Cits.]” (Emphasis supplied.) Baty v. State, 257 Ga. 371, 375 (7) (359 SE2d 655) (1987).

Appellant also urges on appeal that one of the photographs was inadmissible because it revealed a “thoracotomy” which had been performed by medical authorities in an attempt to save the victim’s life. See generally Heard v. State, 257 Ga. 1, 2 (2) (354 SE2d 115) (1987). However, appellant “did not object to the admission of this photograph at trial, on this . . . ground.” Taylor v. State, 261 Ga. 287, 293 (6c) (404 SE2d 255) (1991).

3. The trial court’s failure to give an unrequested instruction on appellant’s good character is enumerated.

The “good character of the accused is not a distinct substantive defense. [Cits.] Generally, in the absence of a proper written request to charge on the character of the accused it is not cause for a new trial when no such charge was given, and it is only in exceptional cases where the court fails to charge relative to the good character of the accused that a new trial will be granted. [Cit.] The case sub judice falls within the general rule, and not within the exception. [Cits.] In the absence of a proper written request to charge on good character the failure of the court to charge thereon was not reversible error.” David v. State, 143 Ga. App. 500, 501 (2) (238 SE2d 557) (1977). See also Bruce v. State, 191 Ga. App. 580, 582 (5) (382 SE2d 367) (1989); Spear v. State, 230 Ga. 74, 76 (1) (195 SE2d 397) (1973).

Decided October 30, 1992.

Andrew C. Dodgen, for appellant.

Douglas C. Pullen, District Attorney, Bradford R. Pierce, Assis tant District Attorney, for appellee.

4. Appellant enumerates the trial court’s giving of a charge on flight. “ ‘After the charge to the jury, defense counsel replied in the negative when asked if there were exceptions to the charge. This action results in a waiver of the right to appeal an error in the charge. [Cit.]’ ” Deters v. State, 261 Ga. 186, 187 (4b) (402 SE2d 733) (1991). Moreover, appellant’s trial was held prior to the effective date of the holding of the Supreme Court that it was error to charge on flight. Renner v. State, 260 Ga. 515, 518 (3b) (397 SE2d 683) (1990). Thus, even in the absence of waiver, the trial court did not err by instructing the jury on the subject of flight. Sutton v. State, 262 Ga. 181, 182 (3) (415 SE2d 627) (1992).

5. Appellant proffered evidence of a prior attack upon him which had been committed by someone other than the victim. The trial court’s exclusion of this evidence , is enumerated as error.

Appellant urges that this prior attack “is relevant to the issue of the reasonableness of [his] fear of the victim, citing Daniels v. State, 248 Ga. 591 (1) (285 SE2d 516) (1981). . . . However, evidence regarding a justification defense should be based solely upon the circumstances which occur between a defendant and the victim. [Cits.] It would be difficult, if not impossible, for the [S]tate to rebut, refute or test as to credibility, evidence of [attack] by third parties.” Clenney v. State, 256 Ga. 123, 124-125 (3) (344 SE2d 216) (1986).

Under “Hall v. Hopper, 234 Ga. [625], 630-632 (216 SE2d 839) (1975), we are not bound by [Daniels, supra]; insofar as it conflicts with [Clenney], supra, it must yield to that ruling which ‘being later in time is the more persuasive decision.’ [Cits.]” Goss v. Bayer, 184 Ga. App. 730, 731-732 (2) (362 SE2d 768) (1987).

To the extent that Clenney has been overruled by Chandler v. State, 261 Ga. 402, 407 (3b) (405 SE2d 669) (1991), the instant case is unaffected and a reversal is not mandated. First, Chandler overrules Clenney only as to the admission of “evidence of specific acts of violence by a victim against third persons . . . where the defendant claims justification.” (Emphasis supplied.) Chandler v. State, supra at 407 (3b). Chandler does not authorize the admission of specific acts of violence against the defendant by a third party. Secondly, the instant case was tried prior to the effective date of the Chandler rule. King v. State, 202 Ga. App. 817, 818, fn. 1 (415 SE2d 684) (1992).

Judgment affirmed.

Pope and Johnson, JJ., concur.