text:
    73262.
    JOHNSON v. THE STATE.
    (356 SE2d 101)
   Benham, Judge.

Tried for two counts of burglary in April of 1985, appellant was convicted of one count and acquitted of the other. Verdict and sentence were entered on April 12, 1985, and a motion for new trial was filed on April 25. Upon appointment of new counsel, a letter brief in support of the motion for new trial was filed on September 13, 1985, and an order denying the motion was entered the same day. On May 27, 1986, counsel filed with the trial court a motion for out-of-time appeal, averring by affidavit that he had not received a copy of the order denying the motion; that he had learned of the order several months later while reviewing the records in the superior court clerk’s office; and that the effect of the delay was to render ineffective assistance of counsel to appellant during this period of time. The order granting an out-of-time appeal was entered by the trial court on July 3, 1986, and this appeal was then filed in this court.

1. The dissent contends that the appeal must be dismissed for lack of jurisdiction, asserting that it is appropriate for the trial court to grant an out-of-time appeal “only when the defendant has been found to have suffered a constitutional deprivation.” In Webb v. State, 254 Ga. 130 (327 SE2d 224) (1985) and Cannon v. State, 175 Ga. App. 741 (334 SE2d 342) (1985), the two cases the dissent cites as standing for that proposition, the courts held that if counsel’s actions resulted in ineffective assistance of counsel as to the right of a defendant to appeal, then the grant of an out-of-time appeal would be appropriate. See also Harper v. State, 154 Ga. App. 550 (1) (269 SE2d 56) (1980).

However, there are other cases in which out-of-time appeals were granted without indication of a constitutional issue being raised. See, e.g., Fann v. State, 254 Ga. 514 (331 SE2d 547) (1985); Mitchell v. State, 157 Ga. App. 181 (276 SE2d 864) (1981). In Mitchell, this court stated that “for proper reasons” it would entertain an out-of-time appeal, without imposing a constitutional limitation. Lay v. State, 242 Ga. 225, 226 fn. 1 (248 SE2d 611) 1978), describes the genesis of the out-of-time appeal as having no codical basis and says that the appeal is granted when there is a deficiency not in “the trial, but [in] the denial of the right of appeal. [Cit.]”

In the light of the U. S. Supreme Court’s decision in Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985), and our state policy of deciding cases on the merits whenever possible, the trial court’s decision to allow appellant’s out-of-time appeal should not be disregarded. The case before us is factually parallel to Webb, supra, in that appellant was not aware that his motion for new trial had been denied, and the effect of the various delays was the loss of his right to make a timely appeal through ineffective assistance of counsel. Such a grant having been made by the trial court in the case before us, there is no reason or basis to reverse it and to refuse to consider appellant’s case on its merits.

2. Appellant contends that his motion for new trial should have been granted on the ground of the insufficiency of the evidence. Appellant was stopped in a van in the early morning hours of December 8, 1984, by Cobb County police after he was observed acting suspiciously. The van fit the description of a vehicle that had been used in several burglaries in the area, appellant could not produce a driver’s license or proof of insurance, and a computer check of the van’s vehicle identification number disclosed that appellant was not the owner. Appellant was placed under arrest and jewelry later determined to have been taken during the burglary for which appellant was convicted was discovered on appellant’s person. Located in the van at the time of appellant’s arrest were three sets of gloves, a screwdriver, channel-lock pliers and a hammer. A neighbor of the burgled home testified that, on the afternoon of the burglary for which appellant was convicted, he observed a van in the driveway of the victims’ residence. The neighbor identified a picture of the van in which appellant was arrested as the same van he saw in the driveway.

Appellant testified at trial in his own behalf. He denied committing the burglary, stating that he had borrowed the van and spent the evening with a co-worker. The evidence was sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Lewis v. State, 179 Ga. App. 17 (345 SE2d 120) (1986).

3. Appellant contends the trial court erred in refusing to grant his motion for a continuance when his counsel was appointed the day the case was called for trial. We do not agree.

Review of the record reveals that appellant was arrested on December 8, 1984, and indicted on February 14, 1985. Although an attorney from the public defender’s office was appointed to represent him, appellant gave notice that he had retained private counsel. By letter dated March 19, 1985, the retained attorney advised both appellant and the trial court of his intention to withdraw from the case. At the calendar call of the case on April 8, 1985, appellant admitted he had been so notified by his retained counsel, and asked for a continuance in order to obtain other counsel.

Upon the trial court’s inquiry to determine reasonable diligence on appellant’s part, it appeared that while appellant knew that his retained counsel would not be representing him March 19, 1985, he nevertheless waited until the call of the calendar, some twenty days later, to ask for the continuance. Instead of granting the continuance as requested, the trial court appointed appellant another attorney who was given an opportunity to speak to the State’s witnesses and to review the State’s entire file prior to trial. The trial was continued until the following morning to allow new counsel sufficient time to prepare his case and draft several motions. As a result of this attorney’s effective arguments, appellant was tried on only two counts of burglary, although he was named in a seven-count indictment.

A motion for continuance based on insufficient time of counsel to prepare for trial addresses itself to the sound discretion of the trial judge and the denial of such a motion will not be interfered with unless the court has abused its discretion. Beard v. State, 178 Ga. App. 265 (1) (342 SE2d 751) (1986). The record reflecting no abuse of discretion under the circumstances of this case, we find no error in the trial court’s denial of appellant’s motion for continuance.

4. Nor do we agree with appellant that the trial court erred in failing to sever the two burglary counts for trial. “Offenses may be joined for trial when they are based (1) on the same conduct or (2) on a series of acts connected together or (3) on a series of acts constituting parts of a single scheme or plan.” Isbell v. State, 179 Ga. App. 363, 366 (2) (346 SE2d 857) (1986). The counts involved residential burglaries committed on weekends six weeks apart; entry into both homes was made through a door in the carport or garage area; both doors were either kicked in or pried open; the locks were torn off and found lying on the floor; neither house was ransacked; and the primary items stolen were jewelry and small electrical appliances. There “was sufficient evidence showing a common scheme or plan authorizing the trial court’s denial of the defendant’s motion to sever.” Id.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Carley, Sognier, and Pope, JJ., concur. Deen, P. J., concurs in judgment only. Beasley, J., dissents.

Beasley, Judge,

dissenting.

On July 3, 1986, the trial court entered an order allowing the appeal in the sole basis that “the State does not oppose the Motion” and consents to the order. A notice of appeal was tendered by defense counsel when the motion for out-of-time appeal was filed.

Based on OCGA §§ 5-6-38 and 5-6-39, this court does not have jurisdiction and the appeal should be dismissed. A trial court has no jurisdiction to grant an extension of time for filing a notice of appeal where the application is not made before the expiration of 30 days. OCGA § 5-6-39 (d); Morris v. State, 115 Ga. App. 715 (155 SE2d 735) (1967). The consent by the state does not confer jurisdiction. Blackburn v. State, 169 Ga. App. 498 (314 SE2d 244) (1984).

Decided March 20, 1987

Rehearing Denied April 2, 1987

Thomas J. Hough, Jr., for appellant.

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

An out-of-time appeal must be granted by a habeas court as the appropriate remedy when the petitioner has been found to have suffered a constitutional deprivation of counsel. Webb v. State, 254 Ga. 130 (327 SE2d 224) (1985). It may also be granted directly, upon a proper determination by the criminal trial court. Cannon v. State, 175 Ga. App. 741 (334 SE2d 342) (1985). In the first instance, this is not a habeas case. In the second, there is no finding of deprivation by the lower court in the record before us.


source: Caselaw Access Project

author: Pope, Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    73349.
    SEARS v. THE STATE.
    (356 SE2d 72)
   Pope, Judge.

Dave William Sears brings this appeal from his convictions of incest, enticing a child for indecent purposes, child molestation (two counts), and rape. Held:

1. Appellant’s first enumeration of error challenges his convictions of Count 1 (incest), Count 2 (enticing a child for indecent purposes), and Count 3 (child molestation) on the ground that the statute of limitation had run prior to his indictment. Appellant was indicted on April 18, 1985. As to Counts 1, 2 and 3 the indictment alleged that these criminal acts occurred “in the year 1980” but were unknown to the prosecutor and authorities of the State prior to March 1985.

The prosecution for felonies such as those in Counts 1, 2 and 3 must be commenced within four years after the commission of the crimes. OCGA § 17-3-1 (c); see Peavy v. State, 179 Ga. App. 397 (1) (346 SE2d 584) (1986). “The period within which a prosecution must be commenced under Code Section 17-3-1 . . . does not include any period in which: ... (2) The person committing the crime is unknown or the crime is unknown. . . .” OCGA § 17-3-2. Thus, “[t]he key to determining when the statute of limitation begins to run is to find when the offender or offense became known. [Cits.]” State v. Brannon, 154 Ga. App. 285, 286-87 (267 SE2d 888) (1980). The State bears the burden of proof in this regard. See State v. Lester, 170 Ga. App. 471 (317 SE2d 295) (1984); State v. Tuzman, 145 Ga. App. 481 (3) (243 SE2d 675) (1978).

The victim testified that at the time of the alleged criminal acts in 1980, she was eleven years old. She knew the alleged acts were wrong (“I have been raised and taught ... to believe that men shouldn’t... do things like that to little girls”), but she was not specifically aware that such conduct was criminal. She became aware of the criminality of the alleged conduct in the summer of 1984, approximately one year before trial, as the result of radio and television news broadcasts. She stated that she did not report appellant initially because she was ashamed. She also testified that she feared appellant because of a variety of threats he had made toward her if she were to report the alleged conduct. “[T]his court in Brown v. State, 6 Ga. App. 329 (2) (64 SE 1001) [(1909)], . . . held that ‘The statute of [limitation] does not begin to run in favor of the offender until his offense is known to the prosecutor, or to someone interested in the prosecution, or injured by the offense.’ The only possible construction of this decision is that when the offense is known to the person injured by the offense, the statute does begin to run. . . . This is as it should be, because the injured person has some motive for reporting the crime to the State. Another thing shown by the decision in the Brown case is that the prosecutor is not the only one whose knowledge would bind the State. It holds that the statute does not begin to run until the offense is known to the ‘prosecutor’ or to someone ‘injured by the offense’; which necessarily means that it does begin to run after it is known to the prosecutor or to the one ‘injured by the offense.’ It seems to be well settled that if a crime against the public involves also a wrong upon an individual, such as an assault or any other crime in which an individual, who is not a party to the crime suffers, the knowledge of the victim is the knowledge of the State, even though the victim does not represent the State in an official capacity.” Taylor v. State, 44 Ga. App. 64, 69-70 (160 SE 667) (1931); State v. Brannon, supra. Compare Kiles v. State, 48 Ga. App. 675 (2) (173 SE 174) (1934), wherein knowledge of the offense of fornication and adultery by the joint offender was not imputable to the State. Where, as here, the undisputed record evidence shows that the victim had knowledge of the offenses (if not their criminality) allegedly committed upon her by appellant “in the year 1980,” such knowledge is imputed to the State, and precludes the State from obtaining an indictment against appellant for those alleged crimes more than four years after both the offenses and the offender were known. See generally Holloman v. State, 133 Ga. App. 275 (211 SE2d 312) (1974).

We are compelled to reject the State’s various assertions that the statute of limitation was tolled because the crimes were unknown in this case due to the victim’s infancy, her lack of awareness of the criminality of appellant’s alleged conduct, and/or her purported fear of appellant. “In deciding when the statute of [limitation] begins to run in a given case several considerations guide our decision. The purpose of a statute of [limitation] is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. . . .For these reasons and others, we [reiterate] ‘the principle that criminal limitations statutes are “to be liberally interpreted in favor of repose,” [cit.]’ [Cit.] . . . [Also,] ‘(s)tatutes of [limitation] normally begin to run when the crime is complete.’ [Cits.]” Toussie v. United States, 397 U. S. 112, 114-15 (90 SC 858, 25 LE2d 156) (1970). “As a general rule, exceptions will not be implied to statutes of [limitation] for criminal offenses, and ordinarily the running of such a statute is not interrupted unless it contains an exception or condition that will toll its operation.” 22 CJS 596, Criminal Law, § 228 (1). See also State v. Locke, 73 W.Va. 713, 716 (81 SE 401) (1914), holding that “where there is cause for a criminal prosecution, the statute begins to run unless prevented by some exception to the statute, and after it has commenced to run it cannot be interrupted by the happening of any subsequent event or disability, as death, coverture, infancy, etc.” “Any exception to the limitation period must be construed narrowly and in a light most favorable to the accused.” State v. Holmes, 181 Ind. App. 634, 637 (393 NE2d 242) (1979). “ ‘Every statute of [limitation], of course, may permit a rogue to escape,’ ” Toussie v. United States, supra at 123-24, but there being no statutory basis for the exceptions to the statute espoused here by the State, we must give effect to the clear expression of legislative will that felony prosecutions must be commenced within four years after the commission of the crimes and reverse appellant’s convictions of Counts 1, 2, and 3 of the indictment.

2. In light of our holding in Division 1, supra, appellant’s second and third enumerations of error are moot.

3. Reviewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found appellant guilty beyond a reasonable doubt of the remaining count of child molestation (see White v. State, 180 Ga. App. 185 (1) (348 SE2d 728) (1986); Childs v. State, 177 Ga. App. 257 (2) (339 SE2d 311) (1985)) and of rape (see J. B. v. State, 171 Ga. App. 373 (1) (319 SE2d 465) (1984)). Appellant’s fourth and fifth enumerations are thus without merit.

4. Appellant’s sixth enumeration of error challenges the trial court’s use of the word “intimidation” in charging the jury relating to the alleged rape that “consent induced by force or fear or intimidation does not amount to consent in law, and does not prevent the intercourse from being rape.” This charge is taken from the Council of Superior Court Judges Suggested Pattern Jury Instructions, Vol. 2, Criminal Law, and we find no error in this regard. See Core v. State, 238 Ga. 448 (3) (233 SE2d 200) (1977); Pierce v. State, 230 Ga. 766 (1) (199 SE2d 235) (1973).

5. The victim’s testimony relating an earlier, unindicted act of molestation upon her by appellant was properly admitted in evidence. Cox v. State, 173 Ga. App. 422 (1) (326 SE2d 796) (1985); Anderson v. State, 172 Ga. App. 202 (322 SE2d 532) (1984). Also, the testimony of two other witnesses relating inappropriate or questionable behavior by appellant toward them as young girls was admissible. Although this testimony did not allege criminal activity, it was relevant as tending to show appellant’s lustful disposition. See Beldonza v. State, 160 Ga. App. 647 (1) (288 SE2d 37) (1981); Bearden v. State, 159 Ga. App. 892 (4) (285 SE2d 606) (1981). See generally Kraus v. State, 169 Ga. App. 54 (1) (311 SE2d 493) (1983). There is no merit in appellant’s seventh enumeration of error.

6. Appellant’s eighth enumeration is controlled adversely to him by White v. State, 253 Ga. 106 (3) (317 SE2d 196) (1984).

7. We have reviewed the record in light of appellant’s ninth enumeration of error alleging hostility and bias by the trial court toward defense counsel and find no basis for reversal. See generally OCGA § 17-8-57; Head v. State, 160 Ga. App. 4 (5) (285 SE2d 735) (1981).

8. We find no abuse of the trial court’s discretion in clearing the courtroom of the audience during the victim’s testimony in this case. OCGA § 17-8-53; see Moore v. State, 151 Ga. 648 (1) (108 SE 47) (1921), cert. dismissed, 260 U. S. 702 (1922); Parker v. State, 162 Ga. App. 271 (6) (290 SE2d 518) (1982). There is no merit in this tenth enumeration of error.

9. Appellant’s eleventh enumeration assigns error to the trial court’s denial of his request for an order to take the pretrial deposition of the victim after the victim had refused to talk with defense counsel prior to trial. Although appellant and his counsel had a right to interview the victim prior to trial, this right was subject to the victim’s acquiescence in such interrogation. Foster v. State, 170 Ga. App. 222 (2) (316 SE2d 828) (1984). “No broad right of discovery exists ... in criminal cases; the common law recognized no right of discovery in such cases, and it has been held that unless introduced by appropriate legislation, the doctrine of discovery is a complete and utter stranger to criminal procedure.” 23 CJS 787, Criminal Law, § 955 (1). See, e.g., Garner v. State, 159 Ga. App. 244 (1) (282 SE2d 909) (1981). Georgia law provides for the taking of depositions in criminal cases only where it appears to the satisfaction of the trial court “that the witness is in imminent danger of death or . . . has been threatened with death or great bodily harm because of the witness’s status as a potential witness in any criminal trial or proceeding.” OCGA § 24-10-130. There being no factual predicate for the application of OCGA § 24-10-130 in the case at bar, nor any other statutory basis asserted by appellant, we adhere to the common law rule that a defendant in a criminal action does not have a right to take the deposition of a potential prosecution witness for discovery purposes. Accord, e.g., Craig v. State, 2 Tenn. Crim. 510 (455 SW2d 190) (1970); Everett v. Gordon, 266 Cal. App. 2d 667 (72 Cal. Rptr. 379) (1968); Kardy v. Shook, 237 Md. 524 (207 A2d 83) (1965); State v. Lampp, 155 S2d 10 (Fla. App. 1963), cert. dismissed, 166 S2d 891 (Fla. 1964).

10. Appellant’s twelfth enumeration of error is controlled adversely to him by Barnes v. State, 157 Ga. App. 582 (2) (277 SE2d 916) (1981).

11. “Lastly, there is no merit to appellant’s cumulative error argument. This state does not follow a ‘cumulative error’ rule of prejudice. Any error of record . . . must stand or fall upon its own merits and is not aided or aggravated by the accumulative effect of other claims of error. [Cit.]” Butler v. State, 163 Ga. App. 475, 476 (294 SE2d 700) (1982).

Judgment affirmed in part; reversed in part.

Birdsong, C. J., Banke, P. J., Carley, Sognier, Benham and Beasley, JJ., concur. Deen, P. J., and McMurray, P. J., dissent.

McMurray, Presiding Judge,

dissenting in part.

As I cannot agree to the majority’s holding in Division 1 of the majority opinion, I must respectfully dissent as to that Division and reversal in part.

Relying upon Toussie v. United States, 397 U. S. 112, 114-115 (90 SC 858, 25 LE2d 156), the majority rejects the State’s contention that the statute of limitation should be tolled. The majority maintains that statutes of limitation should be applied strictly to protect defendants from having to defend themselves against stale charges. In my opinion, this principle has no application in this case for two reasons. First, “It fails to take into account the special circumstances of child molestation cases. [An 11] year-old victim does not ‘necessarily know’ that the acts of a trusted [stepfather] constitute a crime. As in most indecent liberties cases, the victim was quite young, naive and trusting. Though horrified by her [stepfather’s] actions and threats she did not realize until much later the offenses committed against her constituted a crime punishable by law.” State v. Bentley, 721 P2d 227, 231 (Kan. 1986) (dissenting opinion). Second, it fails to come to grips with the fact that the defendant himself frustrated the discovery of the offense by intimidating the victim. The argument in favor of the strict application of the statute of limitation should not be applied where parental authority is used to frustrate the reporting of the offense. State v. Danielski, 348 NW2d 352 (Minn. App. 1984). Compare State v. French, 392 NW2d 596 (Minn. App. 1986).

Decided March 17, 1987

Rehearings denied April 2, 1987

David C. Jones, Jr., for appellant.

Timothy G. Madison, District Attorney, T. David Motes, John G. Wilbanks, Jr., Assistant District Attorneys, for appellee.

I would affirm the judgment of the trial court.


author: McMurray, Presiding Judge.

text:
    73478, 73479.
    KANE v. COHEN (two cases).
    (356 SE2d 94)
   McMurray, Presiding Judge.

This is a tort action arising from a motor vehicle collision wherein plaintiff Sheryl Cohen seeks damages arising from her alleged personal injuries which occurred in the collision, while her husband, plaintiff Richard Cohen seeks damages for loss of consortium. Defendant Kane admits the plaintiffs’ allegations that he was under the influence of alcohol, was operating his motor vehicle in an extremely reckless fashion and with a conscious disregard for the consequences of his actions when he collided with the rear of plaintiff Sheryl Cohen’s car, causing property damage, and that plaintiff Sheryl Cohen was proceeding in a cautious manner consistent with the law and driving conditions. Defendant Kane denies that he caused personal injury to plaintiff Sheryl Cohen.

Upon the trial of the case the jury was unable to reach a unanimous verdict with regard to the amount of punitive damages. The trial court instructed the jury to “complete the verdict form as much as you can,” and to clearly state their position with regard to punitive damages. The jury’s verdict reads: “We the jury find in favor of the Plaintiff, Sheryl D. Cohen, for compensatory damages in the amount of $30,000. We agree punitive damages should be awarded, however, we the jury have been unable to agree upon the dollar amount of punitive damages to be assessed in this case. We the jury find in favor of the Plaintiff, Richard Cohen for loss of consortium in the amount of $0.00.” The trial court entered its final judgment pursuant to OCGA § 9-11-54 (b) for compensatory damages and further ordered “that while the jury determined that Plaintiff Sheryl Cohen is entitled to recover punitive damages against Defendant, Michael Maurice Kane, but was unable to determine the amount of the punitive damages to be so awarded, a mistrial as to the issue of the amount of punitive damages only, be and is hereby declared.” Defendant’s motion to set aside the judgment entered upon the jury’s incomplete verdict was denied and defendant appeals. Held:

1. Defendant contends the trial court erred in accepting the jury’s incomplete verdict and in denying his motion to set aside. OCGA § 9-12-1 provides that: “The verdict shall cover the issues made by the pleadings and shall be for the plaintiff or for the defendant.” This statute appears to be the codification of a well settled common-law rule under which a verdict which fails to resolve all of the issues submitted to the jury must be set aside. Settle v. Allison, 8 Ga. 201; Tompkins v. Corry, 14 Ga. 118; Wood v. McGuire’s Children, 17 Ga. 361 (1) Sellers v. Mann, 113 Ga. 643 (39 SE 11); Cooper v. Branch, 86 Ga. 234 (12 SE 808); Jordan v. Downs, 118 Ga. 544 (2) (45 SE 439); Smith v. Pilcher, 130 Ga. 350, 355 (60 SE 1000); Koon v. Atlantic Coast Line R. Co., 90 Ga. App. 877 (84 SE2d 703).

We specifically reject the suggestion that the verdict in this case “covered” the issues submitted to the jury. “Cover,” a word with many meanings, as used in the context of this statute means “to treat or deal with inclusively enough for a given purpose.” See Webster’s New Inti. Dictionary, 2d ed. Unabridged. The given purpose of a jury’s verdict is the resolution of the issues submitted, not simply an acknowledgement of the controversy submitted. Therefore, we hold that the trial court erred in accepting the jury’s verdict and in denying defendant’s motion to set aside the judgment entered upon the jury’s incomplete verdict.

2. Defendant contends the trial court erred in refusing to allow the testimony of witness Payne. One element of plaintiff Sheryl Cohen’s claim for compensatory damages was alleged mental suffering, depression and anxiety. Her psychologist testified that Mrs. Cohen suffered from “post-traumatic stress disorder,” as a result of the collision, but on cross-examination the psychologist admitted that post-traumatic stress disorder only occasionally arises from motor vehicle accidents. Apparently, there are other types of stress events which can cause the same symptoms, including financial difficulties. Defendant argues that the evidence of witness Payne was admissible to show, as an alternate cause of plaintiff’s post-traumatic stress disorder, that the plaintiffs’ business-related problems were severe.

The proffered testimony of witness Payne is that she was a former employee of Mr. Cohen’s business, that on the evening of “Halloween day” preceding a fire which destroyed the business inventory, there were a number of unusual events in that at the end of the working day Mr. Cohen stated that he had some things to do and would lock up that night and that Mr. Cohen said he was going to a bonfire. Witness Payne further testified that shortly prior to the fire Mr. Cohen had sought assurance that the proper reports had been filed with the insurance company to insure coverage in the event of fire. She also testified that while she and another employee were trying to clean the place up after the fire she found a letter dated sometime around the third week of October stating that the franchise had been revoked.

“Generally speaking, questions of relevance are within the domain of the trial court, and, absent a manifest abuse of discretion, a court’s refusal to admit evidence on grounds of lack of relevance will not be disturbed on appeal. [Cit.]” Georgia American Ins. Co. v. Varnum, 179 Ga. App. 195, 197 (345 SE2d 863) (1986). “ ‘The rule is usually stated that the judge may exercise his discretion in excluding relevant evidence if he finds that “its probative value is substantially outweighed by the risk that its admission will . . . create substantial danger of undue prejudice or of confusing the issues or of misleading the jury. . . .” ’ [Cit.]” Metropolitan Property &c. Ins. Co. v. Shepherd, 166 Ga. App. 300, 301 (304 SE2d 74) (1983). See also Allstate Ins. Co. v. McGee, 157 Ga. App. 53, 55 (276 SE2d 108) (1981). There was no abuse of discretion in the trial court’s exclusion of this evidence.

3. Plaintiffs’ psychologist witness had counseled the plaintiffs regarding marital problems several years prior to the collision. When defendant attempted to subpoena the psychologist’s records regarding this pre-collision marital counseling, plaintiffs filed a motion for protective order. Plaintiffs’ motion for protective order raised the psychologist-client privilege of OCGA § 43-39-16 and questioned the relevancy of the materials at issue. The psychologist’s affidavit submitted in support of the motion shows that the marital counseling continued from December 1978 through December 1979 and that the psychologist was an applied psychologist licensed in the State of Georgia since 1979. The trial court granted plaintiffs’ motion for protective order thereby preventing the defendant from subpoenaing the psychologist’s records regarding his pre-collision treatment of plaintiff Sheryl Cohen.

Defendant contends that the trial court’s grant of the protective order is shown to be erroneous by later testimony which contradicts the psychologist’s affidavit as to the dates of the pre-collision marital counseling and thereby suggests that at the time of the pre-collision marital counseling the psychologist was not licensed. This issue, however, was not submitted to the trial court and may not be raised for the first time on appeal. Chambers v. Dept. of Transp., 172 Ga. App. 197 (2) (322 SE2d 366).

At trial defendant moved for a mistrial contending that plaintiffs waived the psychologist-client privilege by their testimony and the testimony of the psychologist as to the substance of the pre-collision marital counseling sessions. Defendant argued that due to the denial of access to the psychologist’s records regarding the pre-collision marital counseling he was unable to effectively cross-examine in regard to that issue.

However, contrary to defendant’s assertion we do not find any testimony from either of the plaintiffs or the psychologist which places in issue any communication between plaintiff Sheryl Cohen .and the psychologist during the period of the pre-collision marital counseling. Compare Felts v. State, 244 Ga. 503, 505 (260 SE2d 887); Daughtry v. Cobb, 189 Ga. 113, 117 (5 SE2d 352); Griggs v. State, 241 Ga. 317, 318 (245 SE2d 269); Fields v. State, 221 Ga. 307, 308 (2) (144 SE2d 339). The trial court did not err in denying defendant’s motion for mistrial.

4. Defendant contends the trial court erred in allowing plaintiffs to introduce hearsay evidence of expert medical opinions concerning Mrs. Cohen. We have examined each of the six instances relied upon by defendant and find no error. None of the evidence complained of was hearsay. This enumeration of error is without merit.

5. Defendant enumerates as error the trial court’s refusal to charge the jury as follows: “Ladies and gentlemen of the jury, I charge you that the testimony of a party who offers himself or herself as a witness in his or her own behalf is to be construed most strongly against him or her when it is self-contradictory, vague, or equivocal. He or she is not entitled to a finding in his or her favor if that version of his or her testimony the most unfavorable to him or her shows that the verdict should be against him or her.” (Emphasis supplied.) “The above-quoted portion of the trial court’s charge does state two correct and interrelated abstract principles of law. See generally Mattison v. Travelers Indem. Co., 167 Ga. App. 521, 525 (4) (307 SE2d 39) (1983). First, as indicated by the unemphasized portion of the contested charge, the testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when that testimony is self-contradictory, vague, or equivocal. See White v. Rainwater, 205 Ga. 219, 224 (52 SE2d 838) (1949). However, the correct legal principle that is contained in the emphasized portion of the contested charge has no applicability in a case unless there is no testimony — other than the party’s own vague, contradictory and equivocal testimony — upon which a verdict in his favor might be returned. [Cits.]” Maurer v. Chyatte, 173 Ga. App. 343 (3) (326 SE2d 543) (1985). In this case, there was evidence other than the testimony of the plaintiff which would support the verdict. The trial court correctly refused to give the charge as requested.

Judgment reversed.

Carley and Pope, JJ., concur.

Decided March 19, 1987

Rehearing denied April 2, 1987

W. Gordon Hamlin, Jr., Gregory R. Veal, Daniel J. Weber, Leeann Jones, for appellant.

Peter J. Anderson, Roger A. Page, Kirk M. McAlpin, L. Susan Smith, for appellee.


author: Benham, Judge. Beasley, Judge,

text:
    72993, 72994.
    CROWELL v. CITY OF EASTMAN et al.; and vice versa.
    (356 SE2d 104)
   Benham, Judge.

In October 1983, the city manager of the City of Eastman appointed Crowell chief of police. There was no written contract of employment. Crowell was given a City of Eastman employee handbook which contained personnel policies and procedures adopted by the city council as an ordinance in 1978. The personnel policy ordinance provides that dismissals of employees may be appealed in writing to the city council. The ordinance also provides that department heads, a category which includes the chief of police, are not automatically included in the personnel policies, and that their conditions of employment are to be established on an individual basis by the city manager.

Section 34 of the Eastman city charter (Ga. Laws 1979, pp. 4538, 4619) gives the city manager the sole authority to appoint a chief of police and the right to fire or suspend any employee when, in the city manager’s judgment, the interest of the city demands it. Appeal to or interference by the city council is specifically prohibited.

In January 1985, the city manager dismissed Crowell, his stated reason being that the interest of the city demanded it. Crowell appeared before the city council to request a hearing on whether or not he was properly dismissed, but his request was denied. It is apparent from the record that Crowell had been denied a hearing on the issue of the propriety of his dismissal. Although the chairman of the city council did testify that a decision had not been made and that the council was waiting for guidance from the court, the decision which had not been made was whether the firing was proper. The council had clearly ruled, according to the chairman’s testimony, that it had no authority to interfere with the city manager’s personnel decisions regarding Crowell. Thus, the city council had already acted on Crow-ell’s request for a hearing by refusing it.

Subsequent to Crowell’s dismissal and the city council’s decision that it had no authority in the matter, the city council and the city manager joined as petitioners for declaratory judgment. In the petition, which named Crowell as defendant, the petitioners sought a resolution of the apparent conflict between the city charter and the ordinance, and a declaration that the actions they had taken had not violated any of Crowell’s rights. The only other relief sought was an injunction maintaining the status quo and an order requiring Crowell to establish any claims he had for deprivation of constitutional rights. No order was entered with regard to the equitable relief sought, but the trial court entered an order granting the other relief sought. In Case No. 72993, Crowell argues that the trial court erred in finding the present case an appropriate one for declaratory relief, that the trial court erred in assuming subject matter jurisdiction over the determination of whether his constitutional rights had been violated, and that the trial court erred in making a factual determination concerning his asserted property right in employment by the City of Eastman. In Case No. 72994, the petitioners below take issue with the trial court’s resolution of the conflict between the city charter and the ordinance.

1. As noted above, the city manager had already dismissed Crow-ell and the city council had already decided that it could not interfere in the matter before the declaratory judgment action was commenced. Therefore, they “do not show any need for guidance and protection from uncertainty and insecurity with respect to the propriety of their future acts [concerning Crowell]. Thus, they are not faced with any dilemma as to what course they should pursue. Instead, they seek confirmation and approval of what they have done in the past, as to rights which have already accrued. In this situation, declaratory judgment is not an available remedy. [Cits.]” Farmers Union Warehouse v. Bird, 224 Ga. 842, 844 (165 SE2d 148) (1968).

In his answer, appellant raised the defense that the petition failed to state a claim upon which relief could be granted. The allegations of the complaint, taken together with the testimony of the chairman of the city council at the trial of this case, establish that defense by showing that, as to Crowell, all the rights of the parties had already accrued, all the action to be taken had been taken. Thus, appellant’s first enumeration of error is meritorious: the trial court erred in ruling that this case is one which is appropriate for declaratory judgment.

Since the judgment must be reversed on the ground stated, Crow-ell’s remaining enumerations of error need not be considered.

2. In light of our holding in Division 1, the cross appeal is moot. There may be some remaining disagreement between the city council and the city manager concerning the locus of power in the City of Eastman, but that controversy is not properly before this court and we expressly decline to make any finding or holding with regard thereto.

Judgment reversed in Case No. 72993. Appeal dismissed in Case No. 72994.

Birdsong, C. J., Deen, P. J., McMurray, P. J., and Banke, P. J., concur. Carley, Sognier, Pope, and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

The city manager discharged Crowell in January 1985, giving as reason that the interest of the city demanded it. Crowell appeared before the city council for a determination as to whether he was properly discharged. The council heard from Crowell but did not know if it had jurisdiction of the matter, and if it did, what law to apply, so it made no decision but instead the action it took was to seek declaratory judgment, before it deliberated on the merits of Crowell’s complaint. The city manager joined in.

The Eastman city charter (Ga. Laws 1979, pp. 4538, 4619) § 34 gives the city manager the sole authority to appoint a police chief and the right to fire or suspend any employee when, in his judgment, the interest of the city demands it. Appeal to or interference by the city council is specifically prohibited.

The personnel policy ordinance provides that dismissals may be appealed in writing to the city council while provisions of the city charter grant the city manager absolute authority over the tenure of the police chief. The ordinance further provides that department heads are not automatically included in the personnel policies, and that their conditions of employment are to be established on an individual basis by the city manager.

It was in light of the perceived conflicting provisions of the city charter regarding the dismissal of the chief of police, the city council not being sure it had authority to make a determination on Crowell’s dismissal, that it and the city manager filed a compláint for a declaratory judgment against Crowell to determine the rights and legal relationships of the parties.

The city manager contended that the personnel policy adopted as an ordinance was invalid as an invasion of his authority to hire and fire city employees under section 34 of the city charter. The council’s position was that it did not know whether it had legal authority to review the discharge, that is, whether the ordinance prevailed over the charter and whether, if so, to what extent it applied; it thought it could not review and supersede the city manager’s decision, but it is uncertain what its duty is under the seemingly conflicting provisions.

Crowell, on the other hand, contended that he had a right to a review by the council on the procedure followed and the merits of his dismissal; that he was a “regular full time employee” of the city under the personnel policy; that he was wrongfully discharged without cause and without the procedural rights and benefits given to regular full time employees in cases of discharge; that he had a property interest in his position and an expectation of continued employment; that he had been deprived of this property interest without due process of law and thus damaged; and that he intended to seek legal redress against the city. He gave notice that he intended to seek federal relief under 42 USC § 1983 based in part on a lack of due process, i.e., review by the council, under color of state law, if he was deprived of such.

The trial court determined: (1) there was an actual controversy among the parties; (2) the ordinance and section 34 of the city charter were in conflict and the provisions of the city charter were superior to those of the ordinance but the charter was a “special law” and Ga. Const. 1983, Art. III, Sec. VI, Par. IV prohibits a special law when provision has been made by an existing general law; (3) the enactment of the personnel policy ordinance was a legitimate exercise of the city council’s power under OCGA § 36-34-2 and to the extent section 34 of the charter was in conflict with the ordinance, the ordinance prevailed and is valid; (4) Crowell had no property right in his employment with the city; the city council having intended that department heads, of which the police chief was one, not be covered by and included in the rights and benefits accorded regular full time employees under the ordinance; (5) as a matter of fact Crowell’s employment was terminable at will by the employer or employee at any time with or without notice or cause, and Crowell’s discharge was a proper exercise of authority by the city manager.

The court addressed the prayers for declaratory judgment and concluded that the personnel policy including its disciplinary provisions do not apply to Eastman’s chief of police, that Crowell was not entitled to any hearing before the city manager as provided under section 30 of the personnel policy, that the guidelines for disciplinary action in the personnel policy were not applicable to Crowell as chief of police, that the personnel policy did not create in Crowell any reasonable expectation of continued employment or property interest, and that Crowell’s discharge did not amount to the taking of any property or property interest of Crowell’s without due process of law under the federal constitution.

Crowell’s position on appeal is that: (1) the trial court erred in finding an actual controversy ripe for declaratory relief; (2) the court erred in asserting jurisdiction to decide his rights thereby denying his right to pursue an action under 42 USC 1983 in his forum of choice; (3) the court erred in deciding the “question of fact” as to whether or not he had property rights in his employment as defined by the federal constitution.

The city council and city manager cross-appeal that portion of the court’s judgment holding section 34 of the city charter in conflict with the general law and consequently that the city council had authority to restrict the city manager’s power to hire and fire city employees under certain circumstances.

The majority agrees with Crowell that no controversy ripe for declaratory relief existed. Crowell argued that this is so because the city council had granted him a hearing and in that hearing determined that the personnel ordinance did not apply to him. That is, his position is that the question of whether or not the city should give him a hearing to consider the propriety of the discharge had already been decided adversely to him, because the alleged controversy emanates from the same personnel procedures by which he was in the process of seeking relief, and because the situation from which the city seeks relief will effect every other department head in Eastman, none of whom were made party to the suit. Crowell further argued that the court’s decision goes too far afield in deciding the issue of his lack of a property interest in his employment with the city.

To begin with, the record shows that though Crowell was granted an initial hearing before the council, at which time Crowell insisted upon either a written explanation of his dismissal or a definable cause prior to dismissal, the council made no decision about the propriety of his discharge because of its confusion about its legal role, if any, in the matter. It held its substantive deliberation and its decision-making in abeyance.

The first question the council brought to the trial court was: Did it, or did it not, have authority to decide? That is, did it have jurisdiction? That was the threshold question. The council did not know, and neither did the city manager for a certainty, whether Crowell had a right to a decision by the council on his employment, and that is one reason they sought the aid of the court.

This is borne out by the testimony of the city council chairman at the declaratory judgment hearing, when she stated that the council had made no ruling on Crowell’s request that the council conduct a hearing on the discharge as provided in the personnel policy manual because the council “didn’t know what to do.” It merely expressed an opinion on what it thought the prevailing law was, but it was not sufficiently certain so as to act on it. That is precisely why they sought a definitive judicial determination.

Therefore, in my opinion, claims of lack of a justiciable issue because of preliminary action already taken by the city council are without merit. Also, the fact that the city manager had already discharged the police chief did not render the matter moot, because the review-ability of this discharge, and the law to be applied if review was required, were very much at issue since the process had not been completed.

Decided March 20, 1987

Rehearing denied April 3, 1987

John M. Brown, for appellant.

Terry L. Crowell, pro se.

Will Ed Smith, for appellees.

A declaratory judgment action requires a justiciable controversy between adverse parties. Hassell v. C & S Nat. Bank, 240 Ga. 285, 286 (2) (240 SE2d 35) (1977); OCGA § 9-4-2. “ ‘A controversy is justiciable when it is appropriate for judicial determination. It must be definite and concrete, touching the legal relations of parties having adverse legal interests, rather than being hypothetical, abstract, academic or moot. The controversy must be such that it will be resolved immediately and definitely by the judicial declaration.’ [Cits.]” Bd. of Trustees of Employees’ Retirement System v. Kenworthy, 253 Ga. 554, 557 (322 SE2d 720) (1984).

Georgia’s declaratory judgment statute is broad. OCGA § 9-4-2. See Calvary &c. Baptist Church v. Rome, 208 Ga. 312 (66 SE2d 726) (1951). See Lee v. Beneficial Fin. Co., 159 Ga. App. 205 (282 SE2d 770) (1981) for an application of it.

We should not cut the council off from legal guidance from the court, to which it turns before it takes action which might violate any of Crowell’s asserted rights. As repeated in Slaughter v. Faust, 155 Ga. App. 68, 69 (270 SE2d 218) (1980): “this is not a case in which the rights of the parties have accrued, rendering declaratory judgment inappropriate. ‘The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated . . . [I]ts purpose is to permit one who is walking in the dark to ascertain where he is and where he is going, to turn on the light before he steps rather than after he has stepped in a hole. [Cits.]’ Rowan v. Herring, 214 Ga. 370, 374 (105 SE2d 29).”

Here the city council is that “one who is walking in the dark.” The conflict, in context, thus made it ripe for declaratory relief.

I am authorized to state that Judge Pope joins in this dissent.


author:
Benham, Judge.
      Beasley, Judge, Deen, Presiding Judge,

text:
    73005.
    TAYLOR v. THE STATE.
    (356 SE2d 216)
   Benham, Judge.

Frank Taylor appeals from his conviction of driving under the influence and obstruction of an officer and from his sentence of twelve months probation, a $1,000 fine, and $100 each to two police officers as restitution.

On March 27, 1985, appellant was stopped by Glynn County police officer Eckhoff after the officer noticed appellant swerve over the centerline several times. Following his unsuccessful performance of three field sobriety tests, appellant declined to take an alcosensor test, which had been brought to the scene by two officers upon Eckhoff’s request.

The testimony is conflicting as to the events subsequent to the two officers’ departure. Eckhoff stated that before placing appellant in the patrol car, he informed appellant that he was under arrest for driving under the influence. Once in the car, appellant began screaming and kicking the door with both feet. Eckhoff attempted to read him the Miranda warnings three times and then, afraid that the door would break open, called for a backup unit. Appellant continued kicking and resisting the officers’ efforts as they removed him from the car and handcuffed him.

Appellant testified that Eckhoff placed him in the car without informing him he was under arrest. He became upset and requested to be released, and never heard Eckhoff read the Miranda warnings. After calling for a backup unit, Eckhoff stood outside the vehicle with a nightstick and yelled obscenities at appellant. Eight officers converged on the scene, hit appellant repeatedly, forcibly removed him from the vehicle, and violently pushed his head onto the hood of the vehicle.

The appellant again refused to take a chemical test at the police station. However, almost four hours after his arrest and at his request, a blood alcohol test was administered which revealed an alcohol content of .112 grams percent.

Following his arrest, appellant filed a complaint with the police department alleging brutality, which prompted an internal investigation. The resulting internal investigation report consisted of statements by the police officers involved, by appellant’s brother, and by a private citizen who had helped subdue appellant. Pursuant to a pretrial Brady motion for disclosure of any exculpatory materials, the trial court conducted an in camera inspection of the State’s file, which contained the results of the internal investigation, and found that nothing in the file was exculpatory.

Shortly before trial, counsel for appellant served a subpoena on the chief of the Glynn County Police Department, seeking production of the personnel files of the police officers who participated in appellant’s arrest. Because his primary defense to the obstruction charge was that the police officers actually had been the aggressors, appellant asserted that the personnel files would demonstrate the violent predispositions and propensities of the various officers and thus be relevant. The trial court denied appellant access to the officers’ personnel files, finding appellant’s request untimely.

1. Appellant asserts error in the trial court’s denial of his request for access to the personnel files. Appellant does not point to any specific report contained in the personnel files which casts doubt upon any officer’s credibility. “The officer’s . . . file can have no relevance to the guilt or innocence of the defendant in this case and the trial judge was absolutely correct to deny defendant access to it, the more so because it was to be a fishing expedition and defendant did not know what he hoped to find therein, except his own complaint against the officer. [Cit.] ” Taylor v. State, 172 Ga. App. 827 (324 SE2d 788) (1984).

2. Contrary to appellant’s contention that the trial court erred in failing to direct a verdict of acquittal on the charge that appellant obstructed an officer in the lawful discharge of his official duties by refusing to exit the patrol car as requested and then physically resisting a forced exit, the evidence certainly was sufficient to authorize a rational trier of fact to find appellant guilty of that offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Thompson v. State, 151 Ga. App. 128 (2) (258 SE2d 776) (1979).

3. During the trial, the jury viewed without objection a brief videotape of appellant refusing the police officer’s request that he take a chemical test. During deliberations, the jury was allowed to view the tape again in open court. Appellant’s contention that such a repeat performance was error has already been rejected by this court. Allen v. State, 146 Ga. App. 815 (3) (247 SE2d 450) (1978).

4. Appellant also contends that the trial court erred in ordering payment of $200 restitution to two of the police officers involved as a condition of probation without conducting a hearing on the issue and making specific written findings. At the hearing on the motion for new trial, the prosecutor agreed that the order for restitution was inappropriate, but the trial court nevertheless declined to strike that portion of the sentence. Under Patterson v. State, 161 Ga. App. 85, 86 (289 SE2d 270) (1982), the portion of the sentence imposing restitution must be reversed and the case remanded for a hearing on the issue and for entry of specific written findings pursuant to OCGA §' 17-14-8.

Judgment of conviction affirmed; sentence reversed with direction.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Parley and Pope, JJ., concur. Beasley, J., concurs in Divisions 2 through 4, and in judgment only in Division 1. Deen, P. J., and Sognier, J., concur in part and dissent in part.

Beasley, Judge,

concurring specially.

I concur fully in Divisions 2 through 4. As to Division 1,1 concur in the judgment only.

Deen, Presiding Judge,

dissenting.

While concurring with Divisions 2, 3, and 4 of the majority opinion, I must dissent from Division 1, because it appears that some of the personnel files may have been discoverable in this case.

With regard to the results of the internal investigation of the appellant’s arrest, independent review of the materials reveals nothing exculpatory. At most, the officers’ statements contain insignificant variances from the trial testimony in recounting minor details of the incident. No justification for a new trial exists unless the defendant demonstrates that a “suppressed” inconsistent statement might have affected the outcome of the trial, and the appellant here most assuredly has not met that burden. Legare v. State, 243 Ga. 744, 754 (257 SE2d 247) (1979); Dickey v. State, 240 Ga. 634, 636 (242 SE2d 55) (1978). However, the state’s failure to produce the complete personnel files as subpoenaed and the trial court’s denial of access to the files have left this court as well as the appellant in the dark.

To some extent, perhaps, the appellant’s subpoena of the officers’ personnel files was a “fishing expedition,” but the appellant’s stated reason for his need of the files was cogent and central to his defense to the obstruction charge. Given that circumstance, evidence of prior specific instances of the officers’ unwarranted violence would not have been irrelevant under the general provision of OCGA § 24-2-2, and the files should have been produced. See Henderson v. State, 255 Ga. 687 (3) (341 SE2d 439) (1986). The trial court could properly have deleted privileged or irrelevant material from such personnel files, but erred in allowing the state to withhold the subpoenaed files on the basis that the appellant’s subpoena/request was “untimely,” especially in view of the fact that no written motion to quash the subpoena was ever filed as required by OCGA § 24-10-22 (b).

The dishonor of the appellant’s subpoena and the omission of any personnel files in the appeal record (other than the internal investigation report) necessarily results in this review of the issue being somewhat inconclusive. It may be that the officers’ personnel files contain nothing suspected by the appellant, and thus no harm done in the denial of the files; but it may also be that the appellant was wrongfully deprived of relevant materials central to his primary defense to the obstruction charge. The only practical solution is to remand the matter to the trial court to review the complete personnel files of the officers who participated in the appellant’s arrest. If those files in fact contain the type of information suspected by the appellant, the files should be released to the appellant and new trial granted on the obstruction charge.

Decided March 10, 1987

Rehearing denied April 3, 1987

Amanda F. Williams, for appellant.

Glenn Thomas, Jr., District Attorney, Robert L. Crowe, Assistant District Attorney, for appellee.

I must respectfully dissent. I am authorized to state that Judge Sognier joins in this dissent.


author: Carley, Judge. Beasley, Judge,

text:
    73079.
    STANGER et al. v. CATO.
    (356 SE2d 97)
   Carley, Judge.

While an invitee at appellee-defendant’s business establishment, appellant-plaintiff Mrs. Stanger fell. The fall was allegedly caused by appellee’s dog. Mrs. Stanger and her husband sued appellee for damages allegedly resulting from the fall. Appellee answered and subsequently moved for summary judgment. The trial court granted summary judgment in favor of appellee and appellants appeal.

Appellants urge that genuine issues of material fact remain as to appellee’s liability under two legal theories. They rely upon OCGA § 51-2-7, which provided, at the time relevant to this case, as follows: “A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act shall be liable in damages to the person so injured.” “Proof that the owner of a dog either knew or should have known of the dog’s propensity to do the particular act which caused injury to the complaining party is indispensable to recovery against the owner. [Cit.]” Fitzpatrick v. Henley, 154 Ga. App. 555-556 (269 SE2d 60) (1980). Construing the evidence of record most strongly in favor of appellants, there is absolutely no genuine issue of any material fact remaining upon which appellee’s liability under OCGA § 51-2-7 could be predicated. To the extent that Carr v. Young, 120 Ga. App. 464 (170 SE2d 834) (1969) holds that the dog’s breed and size and the fact of the dog’s general restraint is evidence of the owner’s knowledge of the dog’s vicious or dangerous propensities, it is inconsistent with the correct rule. See McCree v. Burks, 129 Ga. App. 678 (200 SE2d 491) (1973); Wright v. Morris, 143 Ga. App. 571 (239 SE2d 225) (1977). Accordingly, Carr v. Young, supra, is overruled and summary judgment in favor of appellee was correctly granted as to this theory of recovery.

Appellants also rely upon OCGA § 51-3-1, which provides: “Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” With regard to any claim under OCGA § 51-3-1, there is absolutely no evidence of any superior knowledge upon which to base a finding of appellee’s foreseeability of the incident which occurred. Clark v. Carla Gay Dress Co., 178 Ga. App. 157 (342 SE2d 468) (1986). Therefore, summary judgment was also correctly granted to appellee under this theory of recovery.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Banke, P. J., Sognier and Pope, JJ., concur. McMurray, P. J., Benham and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent that summary judgment was demanded as a matter of law in this case which involves Mrs. Stanger’s being knocked to the ground by defendant’s Doberman Pinscher dog, not yet a year old, while she was an invitee at Cato’s plant nursery. It is not a dog bite case, nor is it a vicious dog case.

Appellants principally assert that summary judgment was improper because there was sufficient evidence to create an issue of fact as to whether the nursery owner anticipated or foresaw the possibility of customers being injured if his dog and an employee’s dog were allowed out on the premises while customers were present; secondly, that the court incorrectly relied on OCGA § 51-2-7, the statute providing for the liability of an owner or keeper of a vicious or dangerous animal for injuries caused by the animal, rather than OCGA § 51-3-1, which states the duty of an owner or occupier of land to an invitee.

The trial court’s order granting summary judgment does not specify the legal theory on which it relied, and the balance of the record is also silent in this regard.

Plaintiffs alleged in their complaint and also now argue that defendant was aware that when his Doberman Pinscher and another Doberman Pinscher kept on the property were allowed to freely roam the premises, they would become playful and pose a threat to the safety of invitees and further, that he failed to take reasonable precautions to protect invitees from dangers which were “easily foreseeable” and therefore breached his duty to exercise ordinary care in keeping the premises safe for Mrs. Stanger’s use. In addition, the complaint alleged that defendant was negligent and caused injury to Mrs. Stanger “by keeping a vicious animal and by careless management.” Since all “pleadings will be construed to serve the best interests of the pleader,” Rodgers v. Ga. Tech Athletic Assn., 166 Ga. App. 156, 161 (2) (b) (303 SE2d 467) (1983), the complaint sufficiently raised the possibility of recovery under either OCGA § 51-2-7 or OCGA § 51-3-1. Thus the propriety of summary judgment under both theories is at issue on appeal.

There is liability under OCGA § 51-2-7 for the animal’s act “ ‘ “only in the event the owner knows of its vicious or dangerous character. If he does not know this, he will not be liable for an injury which is not the usual and natural consequence to be anticipated from allowing an ordinary animal of that kind to go at large.” [Emphasis supplied]. (Cit.)’ [Cits.] In order to constitute notice to an owner or keeper of an animal’s vicious or dangerous nature, there should be an incident which would put a prudent man on notice to anticipate the event which occurred. [Cit.] . . .

“ ‘Proof that the owner of a dog either knew or should have known of the dog’s propensity to do the particular act which caused injury to the complaining party is indispensable to recovery against the owner. (Cit.)’ [Cit.]” Marshall v. Person, 176 Ga. App. 542, 543 (336 SE2d 380) (1985).

Defendant denied that his dog had ever exhibited any vicious or dangerous propensities or that he had any knowledge of any persons having been injured as a result of any actions of the dog prior to the incident with Mrs. Stanger. He further denied that he had any knowledge which would cause him to reasonably foresee that a customer or any other person might be injured by the activities of his dog.

In deposition, he added that it was very uncommon for his dog to run up and down the nursery walkways; that prior to Mrs. Stanger’s injury, he had not told his employee not to allow her dog out of the office if his dog was out in the nursery area; that it was very unusual for the employee’s dog to be out of the office because the employee did not want her dog to get in the road; that he would have discussed with the employee her dog being confined to the office when customers were on the premises if he would have thought it necessary since he was a “very conscious safety-minded person,” and that if he had thought at the time that it was unsafe for his customers to let either dog out he would not have permitted either dog out.

In Mrs. Stanger’s counter-affidavit, she stated: “Subsequent to the injury, Mr. Cato told me, in the presence of Millie Botesky, that ordinarily both dogs were not allowed out on the premises simultaneously because they played together. Furthermore, Mr. Cato said that ordinarily the dog owned by Ms. Evans was not allowed out of the office area when customers were on the premises. The dog which knocked me down came from behind me and, therefore, I did not see it coming.”

Botesky’s affidavit was similar and added that on all of her previous visits to the nursery, the employee’s dog was only in the office and not out on the nursery premises.

Decided March 19, 1987

Rehearing denied April 3, 1987

Kirby R. Moore, for appellants.

Cato deposed that he did not remember making any statement to Mrs. Stanger or the friend that accompanied her to the nursery that he did not allow the smaller dog out while there were customers on the premises.

“ ‘A summary judgment should not be rendered unless there is no genuine issue as to any material fact and unless the moving party is entitled to a judgment as a matter of law. (OCGA § 9-11-56). The burden is upon the movant to affirmatively show that there is no genuine issue and that he is entitled to a summary judgment. The party opposing the motion for a summary judgment is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists. The evidence must be construed most favorably to the opposing party, and the trial court must give him the benefit of all favorable inferences that may be drawn from the evidence. [Cits.]’ Smith v. Sandersville Production Credit Assn., 229 Ga. 65, 66 (189 SE2d 432) (1972).” Norton v. Ga. R. Bank & Trust, 253 Ga. 596, 603 (322 SE2d 870) (1984). (Emphasis supplied.) Construing the evidence presented on summary judgment in favor of the respondent plaintiffs, the trial court could not have ignored the reasonable inference, from statements in both the Stanger and Botesky affidavits that Cato did not permit the dogs to be on the premises together because they would play together, that the dogs were not permitted at play around the customers because of the perceived potential risk to the customers in light of the dogs’ size and frolicsome nature. A jury could make such inference favorable to plaintiffs and find that Cato “either knew or should have known of the dog’s propensity to do the particular act which caused injury” to Mrs. Stanger. Marshall v. Person, supra. Therefore, I would hold that judgment in favor of the defendant nursery as a matter of law was not warranted under OCGA § 51-2-7.

Because of the reasonable inferences which can be drawn favorably to plaintiffs from evidence presented in response to the motion for summary judgment, their claims would also survive scrutiny under OCGA § 51-3-1. The evidence does not foreclose the finding that Cato had “ ‘ “superior knowledge ... of the existence of a condition that [might have subjected] the invitee to an unreasonable risk of harm.” ’ ” Burdine v. Linquist, 177 Ga. App. 545, 546 (340 SE2d 198) (1986).

I am authorized to state that Judge Benham joins in this dissent.

John C. Edwards, for appellee.


author: Pope, Judge.

text:
    73107.
    STOLA v. THE STATE.
    (356 SE2d 222)
   Pope, Judge.

Albert Allen Stola appeals his conviction of trafficking in cocaine. After careful review of the record, we affirm.

The record reveals that an anonymous tipster telephoned the DeKalb County Police Department around noon on March 21, 1984 and spoke with an officer who worked in the Special Investigations Division. The tipster stated that he had information that a delivery of approximately eight pounds of cocaine would be made between 7:00 and 8:00 p.m. that evening. A white male named “Rodney” would make the delivery to “Al” at 714 Willow Creek Drive where “Al” lived with “Celeste.” The tipster described “Rodney” as having reddish-brown hair, a mustache and a beard, approximately 5'11" tall and weighing 185 . pounds. At the time of delivery, “Rodney” would be driving a 1983 or 1984 black Porsche Carrera automobile and would be wearing a green army jacket. He would be carrying a brown leather briefcase and be armed with a .45 caliber pistol. The tipster stated that his motive for making the telephone call was “revenge” based on the murder of his friend.

Subsequently, the officer receiving the call discovered that Willow Creek Drive was in Fulton County. He contacted a G.B.I. agent who agreed to meet him that afternoon to discuss and investigate the information. At approximately 1:50 p.m. the anonymous tipster telephoned a second time and stated that the delivery had been changed from 7:00 p.m. that night to 3:00 p.m. that afternoon. The officer who received the call again telephoned the G.B.I. agent to advise him of the new information. They agreed to meet at the referenced address. The officer also telephoned the Georgia Power Company which later confirmed that “Celeste Hill” was billed for power to 714 Willow Creek Drive.

The officer then drove with his partner to the Willow Creek apartment complex, where they parked in a manner which allowed them to view the parking area as well as the referenced unit. As they watched, appellant drove a red Toyota Corolla automobile into the parking area of the complex. He parked and entered the 714 unit where he remained approximately fifteen minutes before driving away. A radio investigation of the tag on the automobile revealed that it was registered to “Celeste Hill.” Subsequently, the officers received information that the anonymous tipster had made a third telephone call to the police station at approximately 4:00 p.m. that afternoon. The tipster had stated that the delivery would be approximately 45 minutes late and would be made in a red Toyota Corolla.

At approximately 5:00 p.m., appellant returned in the red Toyota Corolla. He carried a brown leather briefcase as he left the automobile. At that point, the officers ran toward him and arrested him. Subsequently, one officer entered the automobile and saw the corner of a plastic bag containing a white substance resting in plain view on the console. Another officer opened the brown leather briefcase where he found a bag which also contained a white substance. Both substances were tested and found to be cocaine.

1. Appellant contends that the trial court erred in admitting into evidence contraband seized pursuant to the warrantless arrest and search of his automobile and briefcase. Under Georgia law, an officer may arrest without a warrant “if the offense is committed in his presence or within his immediate knowledge ... or for other cause if there is likely to be failure of justice for want of a judicial officer to issue a warrant.” OCGA § 17-4-20 (a). The constitutional validity of an arrest without a warrant depends “upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.” Beck v. Ohio, 379 U. S. 89, 91 (85 SC 223, 13 LE2d 142) (1964). See also Durden v. State, 250 Ga. 325 (1) (297 SE2d 237) (1982), holding that the state rule and the federal rule are the same, i.e., “[a]n arrest and search, legal under federal law, are legal under state law.” Id. at 327.

In the case sub judice, the information on which the officers based their surveillance indicated that the offense would be committed within a short time of the second and third telephone calls. Further, each telephone call modified the information contained in the former call. An uncorroborated telephone call from an anonymous tipster, standing alone, is insufficient upon which to base probable cause to arrest. See Rohrig v. State, 148 Ga. App. 869 (253 SE2d 253) (1979); Illinois v. Gates, 462 U. S. 213, 227 (103 SC 2317, 76 LE2d 527) (1983). Under the facts sub judice, the police did not have probable cause to believe that appellant was committing a crime until they confirmed by their own investigation various aspects of the tipster’s information, i.e., that the delivery would be made in the red Toyota Corolla; that the white male making the delivery would carry a brown briefcase; and that the delivery would occur approximately at the time as stated by the tipster. The point in time at which corroboration of these facts occurred was the point at which the arrest was made. Under these circumstances, it was unnecessary for police to obtain a warrant before arrest. Ellis v. State, 164 Ga. App. 366 (5) (296 SE2d 726) (1982).

The trial court held that “[t]he facts in the present case indicate the information supplied by the tipster possessed an internal coherence which gives weight to a finding that probable cause existed to arrest. The tipster telephoned the officer several times relating changing factual details of the [appellant’s] actions. In addition the informant explained that he blamed the [appellant] for the death of a friend of his, thus offering a plausible reason for the unsolicited call.” The information given by the tipster was explicit and detailed. Its credence was supported by the tipster’s subsequent calls to change details as he apparently witnessed the changes being made. The detailed nature of the information entitled it to more credibility than might otherwise be the case. Further, independent police investigation on the scene verified many facts related by the tipster, as well as information modified by the tipster’s subsequent calls. This corroboration provided adequate grounds on which to base the tipster’s veracity. See Massachusetts v. Upton, 466 U. S. 727 (104 SC 2085, 80 LE2d 721) (1984); Illinois v. Gates, supra.

“In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U. S. 160, 175 (69 SC 1302, 93 LE 1879) (1949). Under the “totality of circumstances” test of Illinois v. Gates, supra, we find that the police had probable cause on which to make the arrest. See State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984).

The warrantless search of the automobile as an incident to lawful arrest is controlled by New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981). Therefore, admission into evidence of the cocaine found as the result of the search of the automobile was not error. Also, we find no error in the admission into evidence of the cocaine found within appellant’s briefcase. See United States v. Ross, 456 U. S. 798 (102 SC 2157, 72 LE2d 572) (1982); Robinson v. State, 162 Ga. App. 690 (292 SE2d 109) (1982).

2. Appellant’s second enumeration cites as error the trial court’s denial of his pretrial motion to compel disclosure of wiretap or electronic surveillance. Assuming arguendo that the denial of this motion was erroneous (see OCGA § 16-11-64 (b) (7); Caudill v. State, 157 Ga. App. 415 (1) (277 SE2d 773) (1981); accord State v. Braeunig, 122 N. J. Super. 319 (300 A2d 346) (1973)), any error was harmless in light of the total absence of record of any indication that such surveillance, in fact, occurred in this case.

3. Appellant argues that the trial court erred in denying his pretrial motion seeking to compel certain witnesses to submit to depositions. There is no Georgia statute or common law rule which requires a witness to submit to a deposition in a criminal case. Sears v. State, 182 Ga. App. 480 (9) (356 SE2d 72) (1987).

Decided March 13, 1987

Rehearing denied April 3, 1987

John A. Nuckolls, for appellant.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Joseph J. Drolet, Benjamin H. Oehlert III, D. Chris Jensen, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Carley, J., concurs in the judgment only.


text:
    73114.
    LUMPKIN v. THE STATE.
    (356 SE2d 238)
   Benham, Judge.

Appellant was convicted of robbery by intimidation and criminal trespass.

1. Appellant was identified by the victim as one of two men to whom he gave a ride in his truck. There was testimony that appellant robbed the victim of his wallet and cut him with a sharp object. After struggling with his assailants, the victim escaped from the truck and saw appellant and his co-defendant smash the windows of the vehicle. The victim returned to the truck after his passengers departed.

In his contention concerning the sufficiency of the evidence, appellant centers on the sufficiency of the proof that venue was in Bar-tow County. The victim testified the attack on him and his truck took place in Bartow County, while appellant presented evidence that the incident occurred in Whitfield County. “When the evidence as to venue is conflicting, the State must prove venue as a jurisdictional fact beyond a reasonable doubt. [Cits.]” Adsitt v. State, 248 Ga. 237 (2) (282 SE2d 305) (1981). The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that venue was in Bar-tow County. See Brown v. State, 250 Ga. 862 (3) (302 SE2d 347) (1983); Miller v. State, 174 Ga. App. 42 (2) (329 SE2d 252) (1985).

2. Upon his arrest, appellant admitted being in the victim’s truck and smashing the windows, and also made reference to his status as a parolee. Prior to trial, the trial court ruled that the reference in appellant’s statement to his parolee status was inadmissible. Despite the trial court’s ruling, the investigating officer mentioned the portion of appellant’s in-custody statement ruled inadmissible. Appellant contends error was committed when his motion for mistrial was denied.

As soon as the testimony was spoken, the trial court, sua sponte, instructed the jury to “absolutely disregard” the offending testimony and questioned the jurors on their ability to disregard the testimony. No negative response was elicited from any juror. At that point, appellant moved for a mistrial. The trial court denied the motion, and admonished the assistant district attorney. “ ‘Where a motion for mistrial is made on the ground of inadmissible evidence illegally placed before the jury, the corrective measure to be taken by the trial court is largely a matter of discretion, and where proper corrective measures are taken and there is no abuse of that discretion, the refusal to grant a mistrial is not error. [Cit.]’ ” Stansifer v. State, 166 Ga. App. 785 (2) (305 SE2d 481) (1983). See also Waddell v. State, 160 Ga. App. 743 (3) (288 SE2d 90) (1981). In light of the trial court’s prompt and thorough corrective action and in the absence of a remark “so flagrantly prejudicial as to violate appellant’s right to a fair trial,” (Waddell v. State, supra), we find no abuse of discretion and therefore, no error in the denial of the motion for mistrial.

3. During his struggle with appellant, the victim recovered a wallet he thought to be his from the truck’s floorboard. Upon examining it later, he ascertained the wallet belonged to appellant since he found appellant’s birth certificate and parole grid sheet in the wallet. Appellant sees error in the trial court’s admission of the grid sheet into evidence, contending it improperly injected appellant’s character into the trial.

The admission of the grid sheet connected appellant to the scene of the crime and identified him as one of the victim’s assailants. In a similar case, this court held that “ ‘[mjaterial evidence is not rendered inadmissible merely because it incidentally places a defendant’s character in issue. [Cits.]’ ” Bethea v. State, 172 Ga. App. 598 (324 SE2d 202) (1984). The dissent is mistaken in its statement that “the trial court had specifically held that the parolee status sought to be introduced was highly prejudicial.” In fact, the trial court ruled inadmissible only that portion of appellant’s in-custody statement in which he admitted that he was a parolee. The trial court clarified its ruling when faced with a challenge to the admission of testimony that the investigating officer met appellant at the probation office.

4. Appellant also takes issue with the trial court’s acquiescence in the jury’s request that they rehear the testimony of the investigating officer “specifically as to what, if anything, was said in the way of a statement by way of the defendants to the officer ...” “Whether or not to grant the jury’s request to rehear portions of the evidence is within the discretion of the trial judge. [Cits.]” Morris v. State, 254 Ga. 273 (2) (328 SE2d 547) (1985). On appeal, the burden is on appellant to show that “special circumstances which might work an injustice” were present, making the trial court’s decision to replay the testimony an abuse of discretion. Wilkerson v. State, 165 Ga. App. 14 (299 SE2d 67) (1983). In the case at bar, appellant contends the special circumstance present was the fact that the testimony requested to be replayed contained the inadmissible evidence discussed in Division 2, supra. The record reflects that the officer’s testimony was read back to the jury. If we assume that the stricken testimony was not read, appellant was not harmed by the replay. If we assume that the replay included the inadmissible reference to appellant’s statement that he was a parolee, we must also assume that the replay included the corrective action taken by the trial court. Thus, whether or not the replay included the inadmissible testimony, appellant was not done an injustice requiring reversal. Wilkerson v. State, supra. See also Akers v. State, 179 Ga. App. 529 (3) (346 SE2d 861) (1986).

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Parley, Sognier and Pope, JJ., concur. Beasley, J., concurs in part and dissents in part.

Beasley, Judge,

concurring in part and dissenting in part.

I respectfully dissent with respect to all but Division 1, with respect to which I concur.

Upon being apprehended, defendant admitted being in the truck with the victim and breaking out the windows. His statement also referred to the fact that the men had been paroled. Prior to trial, he moved in limine to prevent the state’s use of that portion of the statement. The court ruled that the parole reference was inadmissible on the ground that the status of defendants as parolees was irrelevant to the case and was highly prejudicial.

Despite this ruling, the police officer testified as to the defendant’s parolee status. Upon objection, the court instructed the jury “to absolutely disregard that testimony.” Defendants’ motion for mistrial on this ground was denied, which is claimed as error.

Immediately after the police officer finished testifying, the state tendered into evidence Lumpkin’s birth certificate and his parole grid sheet. Lumpkin objected to the grid sheet, but the court allowed it because it was found in the wallet. This, too, is cited as error because of the parole reference.

After the jury began deliberations, it requested that the police officer’s testimony be repeated. Over objection, the testimony was read back by the court reporter. It is unclear from the record whether only the unobjected-to portion of the testimony was reread or whether all of the testimony as well as the objection, ruling and instruction concerning the parole status were included. This is the third claimed error in regard to the parole evidence.

The trial court ruled the grid sheet admissible as having been found in the wallet and therefore identifying defendant as the perpetrator. Yet the court had previously held that the parolee status of the defendant was not admissible because that status was irrelevant to the issue and the reference was highly prejudicial.

Decided March 19, 1987

Rehearing dismissed April 3, 1987.

Shepherd L. Howell, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

Georgia favors the admission of any relevant evidence, no matter how slight its probative value. Sprouse v. State, 242 Ga. 831, 833 (3) (252 SE2d 173) (1979). There is an exception for evidence of independent crimes. However, “[wjhile the general rule is that a separate and independent offense is inadmissible on the prosecution for another crime, exceptions to the rule exist where there is a logical connection between the two crimes from which it can be said that proof of one crime tends to prove the other.” Harper v. State, 249 Ga. 519, 531 (292 SE2d 389) (1982). But that does not give blanket authority to admit such evidence. “[I]t has long been the rule in Georgia that evidence of an independent crime is never admissible unless the prejudice it creates is outweighed by its relevancy to the issues on trial. [Cits.]” Robinson v. State, 246 Ga. 469, 470 (2) (271 SE2d 786) (1980) cited in Cook v. State, 179 Ga. App. 610, 611 (3) (347 SE2d 664) (1986).

Where, as here, the trial court had specifically held that the parolee status sought to be introduced was highly prejudicial, it was error to admit the grid sheet over objection. It improperly injected the defendant’s character into the trial. OCGA § 24-9-20 (b); see Howell v. State, 164 Ga. App. 321 (1) (296 SE2d 367) (1982). Nothing changed to make its admission necessary to prove identity, because it was cumulative of the unobjectionable birth certificate which was also in the wallet. Moreover, there was evidence that defendant admitted he had gotten in a fight with the victim and thus there was no issue of identity. Its prejudicial nature outweighed its probative value in tending to prove the crime, in these circumstances.

While there are situations where such evidence is relevant, as in Saleem v. State, 169 Ga. App. 952 (315 SE2d 487) (1984), that is not the case here. Saleem denied being involved or present and the evidence of the independent crime was found probative of guilt in that it showed identity. Under those circumstances, the evidence was not objectionable. In the present case, the pendulum swings the other way.


author: Pope, Judge. Deen, Presiding Judge, Beasley, Judge,

text:
    73204.
    MCDONALD v. THE STATE.
    (356 SE2d 264)
   Pope, Judge.

Defendant Aubrey McDonald appeals his conviction of voluntary manslaughter (OCGA § 16-5-2). Defendant and the victim, Terry Givens, knew each other prior to the incident which ended in Givens’ death. The victim was living with his uncle, a blood relation, and his aunt. His aunt’s daughter Gwen was living elsewhere with defendant by whom she had a child. The victim had visited defendant’s apartment several times prior to January 22, 1986. When he arrived there at about 5:00 p.m., defendant was home on sick leave with a strained groin muscle. Gwen and the infant were also present. During a conversation defendant implied the victim had lied. This led to an argument which became increasingly heated. Finally, acceding to the victim’s request to settle the matter outside, defendant walked the victim to the door but then locked him out. After the victim banged on the door for five to ten minutes, Gwen let him back in after which the argument resumed. The men then went outside and the victim knocked defendant down. Two friends separated them. Defendant returned to the house, got his car keys, opened the trunk, and took out a knife which he brandished at the victim.

There are two versions of what transpired next. According to the State, defendant advanced on the victim and stabbed him. According to the defense, the victim charged the defendant and in a brief struggle impaled himself on the knife. The victim received a “gaping wound” from which he shortly died.

The police officers who arrived on the scene, after piecing together some of the details of the homicide, focused their investigation on defendant. They looked for a knife after receiving Gwen’s permission to search the apartment but were unable to find it. They did find the knife sheath after obtaining defendant’s consent to search his automobile. Defendant related, on trial, that he did not remember what happened to the knife during the confusion after the stabbing.

1. Defendant sought to justify his actions based on a reasonable belief that he had to use force to defend himself and his family. In support of this contention defendant sought to introduce a tape recording of conversations between the victim, his aunt and Gwen a few weeks before the slaying. At that time, defense counsel argues, the victim made threats against defendant and Gwen.

The State filed a motion in limine to suppress all evidence relating to the victim’s general reputation for violence and of any specific acts or threats committed by the victim against defendant and any other party. After a hearing, the trial court granted the motion, having concluded that the tape contents were irrelevant. In doing so the court recognized the rule that a deceased’s general reputation for violence, as well as proof of prior specific threats towards or assaults upon defendant, is admissible upon proof of a prima facie case of present assault. The essential elements are “that the deceased was the assailant; that deceased assailed defendant; and that defendant was honestly seeking to defend himself.” Curtis v. State, 241 Ga. 125, 126 (243 SE2d 859) (1978). In making its ruling, the trial court was primarily concerned with whether the tape itself established the three essential elements. This was too narrow a view, for evidence extrinsic to the tape itself would be pertinent in ascertaining if the tape should be admitted.

OCGA § 16-3-21 formulates our present concept of self-defense. It sets out that a person is justified in using force when he reasonably believes it is necessary to defend himself or another person from unlawful force. This refers to the fears of a reasonable man, not just those of defendant. Moore v. State, 228 Ga. 662 (6) (187 SE2d 277) (1972).

Early in this state’s judicial history, our courts pronounced the maxim “that naked threats unaccompanied with personal violence were admissible to show the reasonableness of the defendant’s fears, provided a knowledge of the threats were brought home to him.” Monroe v. State, 5 Ga. 85, 136 (1848), citing Howell v. State, 5 Ga. 48 (2) (1848). Since that time numerous cases have recognized that principle. Baker v. State, 142 Ga. 619, 626 (83 SE 531) (1914), held that evidence of prior threats is admissible which tends to “throw light on the question of whether the accused acted under such fears of a reasonable man at the time of the homicide as would justify him in taking the life of the deceased. . . .” Accord Moore v. State, supra; Haynes v. State, 134 Ga. App. 588 (1) (215 SE2d 342) (1975); Bird v. State, 71 Ga. App. 643 (4) (31 SE2d 835) (1944) and cits.

The State apparently espouses the view that threats are of no consequence where they are not directly related to the defendant, but this is not so. Threats may be communicated via third persons from the deceased to defendant. Vincent v. State, 153 Ga. 278, 292 (112 SE 120) (1922). Here the defendant heard the contents of the tape prior to the January 22 incident.

The evidence in the form of a tape recording was not submitted to establish the victim’s general reputation for violence, compare Black v. State, 230 Ga. 614 (3) (198 SE2d 314) (1973), or to show circumstances or incidents not between the victim and defendant. Compare Clenney v. State, 256 Ga. 116 (3) (344 SE2d 216) (1986); Conklin v. State, 254 Ga. 558 (8) (331 SE2d 532) (1985). In view of the Georgia policy of admitting evidence to enable a jury to determine the defendant’s motive and intent and whether he acted as a reasonable man, the evidence should not have been excluded. Daniels v. State, 248 Ga. 591 (1) (285 SE2d 516) (1981). A question raised by the theory of self-defense was, what was in defendant’s mind at the time of the stabbing? The recorded statements of the victim, which defendant had heard, were relevant to show defendant’s perception of the victim and his expected behavior towards defendant at the time of the incident on trial.

This leaves the issue of whether the defendant was harmed by exclusion of the tape. Our hearing of it reveals the confused babbling of a man obviously under the influence of intoxicants. It is doubtful in our opinion that the statements would arouse the fears of a reasonable man on the occasion in issue. Accordingly, we find it highly probable that the trial court’s erroneous exclusion of same did not contribute to the jury’s verdict. See Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976); Dill v. State, 222 Ga. 793 (1) (152 SE2d 741) (1966). Therefore, any error in this regard was harmless.

2. After defendant was arrested, he was informed of his Miranda rights and stated he understood them. He was then asked what happened and responded “that he didn’t know anything about a stabbing; that he didn’t do it.” No other conversation took place until on the way to the police station when an officer inquired of defendant if he understood his rights and received an affirmative answer. During the drive defendant volunteered that he had stabbed the victim. Defendant enumerates as error only the statement made at the scene of the incident, and we confine our consideration to that point.

Relying primarily on Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), and Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981), defendant asserts his right to advice of counsel before questioning and argues such right may be waived only under very limited circumstances not present here. As our appellate courts have interpreted these two decisions, the threshold consideration, essential to assert procedural safeguards, is that the accused actually invoked his right to counsel. Hall v. State, 255 Ga. 267 (1) (336 SE2d 812) (1985); Heard v. State, 165 Ga. App. 252 (3) (300 SE2d 213) (1983). Defendant here did not in any manner request or invoke his right to counsel, even equivocally. Compare Vaughn v. State, 248 Ga. 127 (1b) (281 SE2d 594) (1981). Defendant’s statement at the scene of the incident was admissible.

3. The trial court’s charge on intent was not burden shifting and thus constitutionally defective under Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979), and Francis v. Franklin, 471 U. S. - (105 SC 1965, 85 LE2d 344) (1985). See Flynn v. State, 255 Ga. 415, 416 (2) (339 SE2d 259) (1986).

4. Our review of defendant’s remaining enumerations of error discloses no ground for reversal.

Judgment affirmed.

Banke, P. J., and Benham, J., concur. Birdsong, C. J., concurs and also concurs specially. McMurray, P. J., concurs in the judgment only. Deen, P. J., concurs specially. Carley, Sognier, and Beasley, JJ., dissent.

Deen, Presiding Judge,

concurring specially.

While concurring with the judgment of affirmance, I cannot agree with the holding that the exclusion of the tape recording in this case was error of any kind. Evidence of prior threats levelled at the defendant by the deceased may be admissible to show that the defendant’s fear for his own life was reasonable, but in the instant case there were no real threats contained in the tape recording.

Reviewing this issue requires listening to the recording. Having listened to the entire tape, this writer concludes that the only objective and realistic description of the tape’s contents is that of an inordinately inebriated man who alternatively declares his love for those present and then verbally abuses them. (In a portion of that verbal abuse, which was addressed to the defendant’s girl friend but concerned the defendant, the victim only boasted that he would have the defendant perform fellatio.) The tape recording clearly indicates that the people who were actually present hardly took the victim’s drunken tirade seriously; for this court to do otherwise would mock reality.

Because the tape recording in question contained no threat by the victim against the defendant, the trial court’s exclusion of that recording was not error.

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

Beasley, Judge,

dissenting.

I must dissent because I cannot concur with the final conclusion drawn in Division 1 of the opinion. Having listened to the tape as best I could from the perspective and in the circumstances of the defendant, I cannot say it was harmless error as a matter of law. The issue was, what was on defendant’s mind when Givens lunged at him, considering their relationship, past events, and the recent tape? The latter was a part of the basis which defendant says influenced his action.

It is the jury’s province, not the court’s, to determine if, considering all of the circumstances, a reasonable fear was justified, as claimed. York v. State, 226 Ga. 281 (174 SE2d 418) (1970). See also the clear and well-stated instruction of the Supreme Court in this regard in Milton v. State, 245 Ga. 20, 25 (262 SE2d 789) (1980).

I am authorized to state that Judge Sognier joins in this dissent.

Decided March 20, 1987

Rehearing denied April 3, 1987

Frank K. Martin, for appellant.

William J. Smith, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.