text:
    A97A1389.
    HUNTER et al. v. NISSAN MOTOR COMPANY, LTD. OF JAPAN et al.
    (494 SE2d 751)
   McMurray, Presiding Judge.

In January 1989, Margaret Thrasher Hunter was driving a 1982 Nissan Sentra automobile (“Sentra”) with her two sons as rear-seat passengers. While she was waiting to make a turn, her Sentra was struck in the rear by a 1980 Chevrolet Monte Carlo automobile operated by an allegedly intoxicated minor under the legal drinking age. The rear of Hunter’s Sentra collapsed, crushing the car’s rear passenger area. One child died, the other was injured.

Hunter filed a products liability action against Nissan Motor Company, Ltd. of Japan and Nissan Motor Corporation in U.S.A (“the Nissan defendants”), individually and in her representative capacities for her surviving child and her deceased child’s estate, alleging (in pertinent part) that the Nissan defendants defectively designed the Sentra to withstand rear-end collisions. At the April 1995 trial, however, the trial court directed the jury to disregard key expert-testimony supporting this claim. Specifically, the trial court excluded Automotive Design Engineer Billy S. Peterson’s testimony that $3 worth of steel during the manufacturing process or a $20 impact-absorbing bumper would have cured the alleged defect (the Sentra’s unreinforced impact-absorbing frame stubs) which caused the Hunters’ catastrophic injuries. The trial court imposed this sanction because Hunter did not supplement her interrogatory responses or Peterson’s deposition so as to update the Nissan defendants regarding Peterson’s suggested safer design alternatives, as was allegedly required by OCGA § 9-11-26 (e).

The jury found in favor of the Nissan defendants. This appeal followed. Held:

1. Hunter contends the trial court erred in striking Billy S. Peterson’s expert testimony regarding alternative safer designs for the 1982 Sentra automobile. We agree.

Exclusion of probative trial evidence is not an appropriate remedy for curing an alleged discovery omission. White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 581 (5) (417 SE2d 383). Such a harsh and unnecessary sanction was flatly rejected, albeit under different circumstances, in Sharpe v. Dept. of Transp., 267 Ga. 267, 270 (2), 271 (476 SE2d 722), where the Supreme Court of Georgia held that a motion to strike is never an appropriate tool for excluding probative evidence during a civil jury trial. The only appropriate remedy for Hunter’s alleged failure to update her discovery responses or her expert witness’ deposition testimony in the case sub judice (if any such update was even required) was postponement of trial or a mistrial. White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 581 (5), supra. See Jones v. Atkins, 120 Ga. App. 487, 490 (2) (171 SE2d 367). The trial court simply did not have authority or latitude to grant the Nissan defendants’ motion to strike the Hunters’ expert’s “alternative design” testimony. The trial court’s judgment must therefore be reversed for a new trial so that a jury may consider Billy S. Peterson’s expert testimony. Saying otherwise, as does the dissent, not only disregards controlling authority, but also disregards this State’s venerable policy against obliquely coursing appropriate paths in the name of procedural gaming by excluding relevant evidence, which is not inadmissible for some reason of prejudice or illegality. See Ga. Farm &c. Ins. Co. v. Merck, 209 Ga. App. 879, 880 (1) (434 SE2d 585), and cits.

2. Hunter contends the trial court erred in denying her motion to exclude the testimony of Jeff Worth, a testing engineer who conducted a crash test between a Sentra automobile and a Monte Carlo automobile which the Nissan defendants used in their defense. Hunter argues that Worth was not identified during discovery as an expert and that the substance of his testimony was never disclosed. Since these alleged omissions will no longer be an obstacle to Jeff Worth’s testimony upon remand for a new trial, it is unnecessary to address this enumeration of error.

3. Our holding in Division 1 of this opinion renders moot Ms. Hunter’s final enumeration of error regarding the trial court’s exclusion of Billy S. Peterson as a rebuttal witness.

Judgment reversed.

Birdsong, P. J, Ruffin and Eldridge, JJ, concur. Andrews, C. J, Beasley and Smith, JJ, dissent.

Beasley, Judge,

dissenting.

I respectfully dissent as to Division 1 of the majority opinion and the reversal of the judgment.

1. In this case, expert witness Peterson referred to the severity of the damage to the Nissan as excessive crush and attributed it to a lack of structure in the rear of the vehicle. He identified the Nissan’s stub frame as the energy absorber that manages crush in this part of the car. It was his opinion that in order for the stub frame to function effectively it must remain horizontal, which it failed to do in the collision.

When Peterson testified that the stub frame can be stabilized by installing a “sleeve,” defendants objected on grounds that the witness did not respond to questioning on this subject during his deposition and plaintiff did not comply with a defense request to supplement the witness’ answers to its interrogatories with newly acquired information. After the court overruled the objection, Peterson testified that when the Nissan was designed and manufactured, the sleeve could have been installed for about $3 per vehicle. Counsel asked Peterson about other available safer designs, and the same objection was made and overruled.

Peterson then identified a “five mile per hour bumper” as another available alternative that would have cost $20 per vehicle. Defendants renewed their objection, and after learning that Peterson had arrived at his opinions concerning alternative designs after his deposition but before trial, the court ruled that plaintiff failed to comply with the discovery obligation to supplement the witness’ interrogatory responses. The court granted defendants’ motion to strike the alternative-design testimony and instructed the jury to disregard it. Nonetheless, the court charged the jury on the risk-utility doctrine adopted in Banks and that a factor integral to assessment of design utility is the availability of alternative designs.

The Civil Practice Act (CPA) provides that “[a] party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired,” except as set forth in subsections (1) and (2). OCGA § 9-11-26 (e). Subsection (1) states: “A party is under a duty seasonably to supplement his response with respect to any question directly addressed to: (A) The identity and location of persons having knowledge of discoverable matters; and (B) The identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify and the substance of his testimony.” Subsection (2) states: “A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which: (A) He knows that the response was incorrect when made; or (B) He knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is, in substance, a knowing concealment.” This section of the CPA applies to both oral depositions as well as written forms of discovery, Glennville Hatchery v. Thompson, 164 Ga. App. 819, 824 (6) (298 SE2d 512) (1982), and extends to the time of trial. See Haugabrook v. Waco Fire &c. Ins. Co., 190 Ga. App. 815, 816 (2) (380 SE2d 347) (1989).

It was not error to rule that plaintiff failed to fulfill her disclosure obligations. In such instances, the question is what sanction should be imposed. The CPA does not provide a specific answer. Hanna Creative Enterprises v. Alterman Foods, 156 Ga. App. 376, 377 (2) (274 SE2d 761) (1980). Case law provides the solution.

In the pre-CPA case of Nathan v. Duncan, 113 Ga. App. 630, 638 (7) (149 SE2d 383) (1966), defendant objected to the testimony of lay witnesses whose existence was not disclosed until trial. Pretermit-ting the question of whether plaintiff was under a duty to list the witnesses in answer to defendant’s interrogatory as worded, the Court held that “the proper procedure when [undisclosed witnesses] were called to testify was not to object to their testifying or to the admission of their testimony, but to move for a postponement of the trial for a sufficient length of time to enable the defendant to interview them, check the facts to which they would testify, and, if indicated, arrange to secure rebuttal evidence or to impeach them. It would be an abuse of discretion, requiring the grant of a new trial, to refuse the postponement. If this should not come up until the trial was already under way and the court determined that a postponement was impracticable, a mistrial should be declared. [Cits.]” Id. at 641. It also suggested a citation for contempt. The Court looked at the application of the federal rules in fashioning its answer to a violation of the civil procedure statute which preceded the CPA.

Jones v. Atkins, 120 Ga. App. 487, 490 (2) (171 SE2d 367) (1969), was decided after the adoption of the CPA. The Court considered interpretation of the corresponding federal rules, articulated the purpose of pretrial disclosure requirements (avoid surprise at trial), and applied the complementary rationale and practical sanction which had been utilized in Nathan. The Court in Jones concluded that exclusion of the witness’ testimony was not the solution (except where information is deliberately withheld) and that a postponement of trial or, if necessary, a mistrial, is the remedy. As a result, the court reversed the denial of a postponement or mistrial and required a new trial, for the trial court had allowed “no time whatsoever” for the surprised opponent to conduct discovery of the witness.

The approach taken in Nathan and Jones was carried forward in Hanna and other cases decided under the CPA. See Norfolk Southern R. Co. v. Perkins, 224 Ga. App. 552, 556 (4) (481 SE2d 545) (1997); Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 588 (2) (452 SE2d 159) (1994); White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 581 (5) (417 SE2d 383) (1992); Kamensky v. Stacey, 134 Ga. App. 530 (215 SE2d 294) (1975). In Glennville Hatchery, supra, and Jones v. Livingston, 203 Ga. App. 99, 102 (4) (416 SE2d 142) (1992), however, we did recognize that the trial court has discretion to exclude undisclosed evidence under certain circumstances. See also State v. Kamp-plain, 223 Ga. App. 16, 18 (477 SE2d 143) (1996) (“[e]vidence exclusion is an extreme sanction and not one favored as a matter of course in the law”).

In accordance with the Jones v. Atkins’ recognition that deliberately withheld evidence may be excluded, Wilson v. Southern R. Co., 208 Ga. App. 598, 603 (3) (431 SE2d 383) (1993) (physical precedent only), held that “[i]n the absence of a deliberate withholding for improper purposes, it is the general rule that ‘(w)hen a party proffers at trial evidence which should have been disclosed during discovery, exclusion of the proffered evidence is not an authorized sanction. The proper sanction is to order a postponement or a mistrial.’ [Cits.]” Wilson sustained the trial court’s admission of certain evidence, noting that the record failed to support a claim that it had been deliberately withheld so as to prejudice the other party.

In the whole-court case of Whitley v. Gwinnett County, 221 Ga. App. 18, 22 (5) (470 SE2d 724) (1996), the trial court refused to exclude certain defense exhibits not provided to the plaintiff until trial despite pretrial discovery requests for such information. But the court gave counsel an opportunity to review the exhibits before cross-examining the witness introducing them. Noting that there was no evidence the exhibits were deliberately withheld for improper purposes, we held that the trial court did not abuse its discretion in declining to exclude the exhibits. We approvingly cited the Wilson holding.

In reviewing the trial court’s grant of defendants’ motion to strike in this case, we must ask two questions. Was the trial court authorized to find that the testimony of the expert witness on the undisclosed subject had been deliberately withheld? Should the court have utilized a remedy less drastic than evidence exclusion?

As a remedy for pretrial nondisclosure, plaintiff argued at trial that under Georgia law, the court could do nothing more than give the defendants an opportunity to interview the witness prior to cross-examination. Defendants then suggested that they were surprised by the witness’ testimony, and the court indicated that non-disclosure of the information had also prejudiced the defense. Defendants argued that the suggested remedy would be inadequate because additional testing of the Nissan would be required. The court was thus authorized to find that a continuance would have been inadequate. On appeal, plaintiff argues that the trial court should have declared a mistrial as an alternative to excluding or striking the expert’s testimony, but defendants did not move for a mistrial and plaintiff did not suggest it as a less drastic remedy. Moreover, a trial court in its discretion may exclude evidence deliberately withheld for an improper purpose and is not required to declare a mistrial in the alternative.

Under the record before us, the trial court could have found that the expert’s testimony on the undisclosed subject had been deliberately withheld to prejudice the defendants, but the parties did not address this question and the court did not make any finding on it. We therefore should remand this case to the trial court with the direction that the court conduct a hearing to determine the question of whether the undisclosed evidence was deliberately withheld for improper purposes.

As I find no merit in the remaining enumerations, I would affirm the judgment on the condition that the trial court answer the foregoing question in the affirmative. If the court did instead answer this question in the negative, only then would plaintiff be entitled to a new trial.

2. Although the majority does not address this issue, I note that there is no merit in Hunter’s argument that her compliance with discovery was affected by the timing of the Supreme Court’s decision in Banks v. ICI Americas, 264 Ga. 732, 733 (1) (450 SE2d 671) (1994). Hunter argues that evidence of alternative-safer designs was not admissible in product-liability cases in Georgia before Banks.

When this action was filed and during the discovery period, Mann v. Coast Catamaran Corp., 254 Ga. 201 (326 SE2d 436) (1985), was in effect. After discovery closed but several months before trial, Banks overruled Mann. The Supreme Court stated in Banks that in Mann it had “rejected evidence of alternative safer designs to hold [instead] that where a product was ‘reasonably suited for its intended purpose’ and where the presence or absence of a design feature did not prevent the product ‘from functioning properly in its intended use, such cannot be considered defective design.’ Id. at 202 (1).” Banks, supra at 733.

The court in Mann did not specifically consider whether evidence of alternative safer designs was admissible, but instead rejected a claim that a sailboat not grounded or insulated against electrical contact was defectively designed. The court held that neither the lack of grounding nor of insulation prevented the boat from functioning properly in its intended use of sailing.

In Banks, the court adopted a risk-utility analysis in design defect cases, stating that “[o]ne factor consistently recognized as integral to the assessment of the utility of a design is the availability of alternative designs,” which, if safer and equally efficacious, diminish the justification for the challenged design. Id. at 735. The court held that “in determining whether a product was defectively designed, the trier of fact may consider evidence establishing that at the time the product was manufactured, an alternative design would have made the product safer than the original design and was a marketable reality and technologically feasible. [Cit.]” (Footnote omitted.) Id. at 736. Compare Restatement (Third) of Torts: Products Liability, § 2 (b) (1997).

Defendants cite Greenway v. Peabody Intl. Corp., 163 Ga. App. 698 (294 SE2d 541) (1982), and Ogletree v. Navistar Intl. Transp. Corp., 194 Ga. App. 41 (390 SE2d 61) (1989), in arguing that evidence of alternative designs was relevant and admissible under Georgia law prior to Banks. Ogletree, but not Greenway, supports them. In Greenway, parents of a child who was killed while playing in a dumpster sued the manufacturer on theories of negligent design and manufacture, as well as strict liability. Although plaintiffs’ expert testified that the dumpster could have been made safer by certain alternative designs, this Court affirmed the trial court’s grant of the manufacturer’s motion for directed verdict on the ground that the dumpster functioned properly for its intended purpose.

In Ogletree, the plaintiff claimed that a truck had been negligently designed and manufactured because the manufacturer had not installed a sound device to warn bystanders of the approach of the vehicle. Relying on evidence that an alarm was available for about $40 and that the manufacturer could have installed it, we reversed the trial court’s grant of the manufacturer’s motion for summary judgment. Ogletree was overruled on other grounds in Weatherby v. Honda Motor Co., 195 Ga. App. 169 (393 SE2d 64) (1990). Subsequently, Ogletree v. Navistar Intl. Transp. Corp., 227 Ga. App. 11 (488 SE2d 97) (1997), applied Weatherby so as to affirm the trial court’s grant of a j.n.o.v. in favor of the manufacturer.

Decided December 5, 1997

Morris & Webster, Steven R. Webster, Craig A. Webster, for appellants.

King & Spalding, Lanny B. Bridgers, Steven J. Estep, Blasin-game, Burch, Garrard, Bryant & Ashley, E. Davison Burch, Amy M. Power, for appellees.

The case should be remanded.

I am authorized to state that Chief Judge Andrews and Judge Smith join in this dissent.

       She also pressed claims against the driver of the Monte Carlo and the drinking establishment which served the underage driver alcoholic beverages before the collision.

       This alternative design testimony is relevant under the risk-utility test prescribed in Banks v. ICI Americas, 264 Ga. 732, 733 (1) (450 SE2d 671).

       The issue of whether Hunter was required to update her interrogatory responses or her expert’s deposition testimony is not clear. Any such duty arises in the case sub judice only if Hunter knowingly concealed her expert witness’ substantive testimony. OCGA § 9-11-26 (e) (2) (B). We do not believe that a finding of such a “knowing concealment” is supported under the circumstances appearing in the case sub judice. The Nissan defendants’ attorneys were aware, when the Hunters’ expert gave his deposition, that the expert had not yet seen all of the data relevant for forming an opinion regarding the safety of the 1982 Nissan “Sentra” automobile in question. This is apparent because Hunter’s expert informed defense counsel during his deposition (which was taken almost two years before trial) that he had not yet formed an opinion as to alternative design methods. Under these circumstances, in light of the fact that the Nissan defendants took the Hunters’ expert’s deposition during discovery and before these defendants turned over engineering studies (two videotaped recordings containing 1982 Nissan “Sentra” automobile rear-end crash tests) relevant to evaluating the design defect in question, we cannot say that Ms. Hunter had a duty to supplement her interrogatories or her expert witness’ deposition. If the Nissan defendants wanted further information regarding Billy S. Peterson’s opinion as to safer design alternatives, they could have easily questioned him during a second deposition before trial.

       Subsequent to the trial of this case, the Supreme Court decided Sharpe v. Dept. of Transp., 267 Ga. 267 (476 SE2d 722) (1996), which disallows the use of a motion to strike as a procedural tool to object to evidence except in limited instances in criminal cases. The decision in Sharpe was prospective only. Moreover, Sharpe was based on the contemporaneous objection rule; in this case the defendants made a contemporaneous objection.

       “§ 2. A product:... (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe!.]”


source: Caselaw Access Project

author: McMurray, Presiding Judge. Ruffin, Judge, Beasley, Judge,

license: Public Domain

text:
    A97A1570.
    THE STATE v. AGUIRRE.
    (494 SE2d 576)
   McMurray, Presiding Judge.

Defendant Aguirre stands indicted for a violation of the Georgia Controlled Substances Act, possession of more than one ounce of marijuana with intent to distribute. The State appeals the grant of defendant’s motion to suppress evidence. Held:

The only testimony presented at the motion to suppress hearing was that of a sheriff’s deputy who had stopped a pickup truck driven by defendant. The deputy testified that just past midnight he observed a pickup truck traveling on an interstate highway at well below the posted speed limit. The pickup truck was traveling only 49 mph in a location with a 70 mph speed limit. The deputy, who was sitting in the median running stationary radar, noticed as the pickup truck went by that it had a temporary license tag and that he could •not read certain handwritten characters on the tag. The deputy followed the vehicle, and pulled up behind the pickup truck but could not read the handwritten characters on the tag. When the deputy was alongside the pickup truck, the driver placed his hand in a position which denied the deputy a view of his face. The deputy then initiated a traffic stop.

The traffic stop revealed that defendant was a licensed driver, the temporary tag was valid, and the pickup truck had been purchased less than a week prior to the stop. The deputy issued a courtesy warning to defendant indicating that documents had been checked because the deputy could not read the temporary tag. The deputy then asked for and received defendant’s consent for a search of the vehicle. During that search approximately 20 pounds of marijuana were found.

“When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge “hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.’ [Cit.] Second, the trial court’s decision with regard to ‘questions of fact and credibility must be accepted unless clearly erroneous.’ [Cit.] Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. [Cit.]” Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646). Furthermore, “[i]n a motion to suppress, “(t)he credibility of the witnesses and the weight to be accorded their testimony rest with the trier of fact, who is under no obligation to believe a witness, even in the absence of contradictory testimony. The factfinder may accept part of a witness’ testimony and reject another part, and “(i)n the absence of evidence of record demanding a finding contrary to the judge’s determination, (the appellate) court will not reverse the ruling sustaining a motion to suppress. (Cit.)” (Cit.)’ State v. Williams, 193 Ga. App. 462 (388 SE2d 55) (1989).” Anderson v. State, 267 Ga. 116,118 (475 SE2d 629).

The State maintains that three circumstances combined to authorize the stop of the vehicle driven by defendant: the speed at which the pickup truck was traveling, uncertainty regarding the expiration date of the temporary license tag on the pickup truck, and defendant’s concealment of his face from the deputy. “An initial investigative stop requires that the arresting officer have only reasonable, articulable suspicion, not probable cause. State v. Thomason, 153 Ga. App. 345 (1) (265 SE2d 312) (1980). An officer may conduct a brief investigatory stop of a vehicle, if such stop is justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Evans v. State, 216 Ga. App. 21 (2) (453 SE2d 100) (1995).” Edwards v. State, 219 Ga. App. 239, 243 (3) (464 SE2d 851). Under the circumstances of the case sub judice the trial court was authorized to conclude that the deputy lacked such reasonable suspicion of criminal conduct and that the stop was predicated instead on a hunch or pretext.

Insofar as the speed of the pickup truck is concerned, the deputy acknowledged that the vehicle was traveling more than the applicable minimum speed of 40 mph and less than the maximum speed of 70 mph. While the deputy opined that the vehicle’s speed being less than the maximum allowed suggested criminal conduct, this was not a hypothesis which the trial court as factfinder was obliged to embrace.

Nor was the trial court bound by the deputy’s subjective interpretation of the posture assumed by defendant while driving. As finder of fact, the trial court was authorized to view the deputy’s hypothesis that defendant was attempting to conceal his identity as mere speculation.

The temporary license tag on the pickup truck was issued by the State of Ohio. The cases of Edwards v. State, 219 Ga. App. 239, supra, and Burtts v. State, 211 Ga. App. 840 (440 SE2d 727) relied upon by the State, involve vehicles which were stopped because they failed to display any license tag. In Edwards, the vehicle had no tag displayed on the rear license area and only after the officer stopped the car was he able to see a temporary tag hanging in the rear window. The vehicle in Burtts had no visible valid license plate but only a rental agency paper drive-out tag. The stops in these cases were held proper based on suspected violations of OCGA § 40-2-41 or § 40-2-8.

In the case sub judice, there was no statutory violation apparent. Although there was some testimony by the deputy suggesting that a clear plastic cover over the tag partially obscured it, the evidence as a whole would support a finding that the plastic cover had no adverse effect on the legibility of the tag. A photograph of the license plate as installed on the vehicle shows the tag number to be clearly visible and further testimony by the deputy concerning his inability to read the handwritten notations fails to repeat the suggestion that the plastic cover obscured visibility of the tag. See in this regard OCGA § 40-2-41.

The trial court was authorized to conclude that the vehicle driven by defendant properly displayed the temporary license plate issued by the State of Ohio in compliance with OCGA § 40-2-41 which requires that the vehicle “display the license plate issued to the owner for such vehicle. . . .” There is no statutory provision which would require the expiration date of this out-of-state tag to be legible to the deputy from his patrol car.

It follows that the trial court could reasonably conclude that the deputy did not have probable cause to believe that defendant had committed a traffic offense. The deputy’s lack of probable cause removes the present case from the influence of the decision in Whren v. United States, 517 U. S._(116 SC 1769, 135 LE2d 89) which holds that where law enforcement officers have probable cause to believe that a traffic violation has occurred, the decision to stop a vehicle is reasonable even where the stop is effected as a pretext for engaging in other law enforcement objectives. Compare Jackson v. State, 267 Ga. 130, 131 (5) (a) (475 SE2d 637); State v. Holler, 224 Ga. App. 66, 70 (2) (a) (479 SE2d 780); Freeland v. State, 223 Ga. App. 326 (1) (477 SE2d 633).

The order granting defendant’s motion to suppress evidence does not state the reasoning upon which it is based. Insofar as this may be revealed by the colloquy recorded at the hearing, we note that the superior court stated that “I find the testimony on why the defendant was stopped to be not credible,” thus indicating, in our view, a conclusion that the stop was pretextual. In this connection we note that the deputy was “part of the ICE team,” meaning “Interstate Criminal Enforcement” and was “trained ... to look beyond the traffic stop for other possible violations.” A possibly pretextual stop is considered by looking to what a reasonable officer would do rather than what an officer could do. Brown v. State, 188 Ga. App. 184, 187 (372 SE2d 514); Tarwid v. State, 184 Ga. App. 853, 855 (363 SE2d 63). In this instance, the evidence of record fails to show that the ruling of the superior court is clearly erroneous. Since the superior court was also authorized to conclude that defendant’s consent to the search of the vehicle was a direct consequence of a pretextual stop, there was no error in the grant of defendant’s motion to suppress evidence. State v. Marcus, 206 Ga. App. 385, 386 (2) (425 SE2d 351); Brown v. State, 188 Ga. App. 184, 187, supra; Tarwid v. State, 184 Ga. App. 853, supra.

Judgment affirmed.

Eldridge, J., concurs. Birdsong, P. J., Smith and Ruffin, JJ, concur and also concur specially. Andrews, C. J., and Beasley, J., dissent.

Ruffin, Judge,

concurring specially.

I concur in the Court’s opinion, but write separately to address certain concerns raised in arguments set forth by the dissent. The dissent posits its arguments that the trial court should be reversed on two grounds: (1) the court applied the wrong test in determining the reasonableness of the stop in light of Whren v. United States, 517 U. S. _ (116 SC 1769, 135 LE2d 89) (1996); and (2) “the trial court could not simply disregard the unrebutted testimony of the officer.”

Before addressing these arguments seriatim, let me first assert that Whren is inapplicable, but even if it were applicable, it is factually distinguishable. What the dissent misperceives is the factual distinction between Whren and the instant case, as well as the age-old principle in our law that irrespective of how much an appellate court may disagree with the trial court, factual and credibility findings are binding on the appellate court unless “clearly erroneous.” See Edwards v. State, 219 Ga. App. 239, 244 (3) (464 SE2d 851) (1995); Anderson v. State, 267 Ga. 116, 119 (2) (475 SE2d 629) (1996).

In Whren, police were patrolling a high drug area when they noticed a car at an intersection stop sign for an inordinate amount of time. When the youthful occupants of the car saw the police car, they turned right without signaling and sped away at an “unreasonable” speed. 135 LE2d at 93. After the police stopped the vehicle and one of the officers approached the car, the officer noticed what appeared to be two bags of crack cocaine in the hands of one of the occupants. The officers decided to stop Whren and the other occupants of the car because of several traffic violations: failure to give full attention to the operation of the vehicle, turning without signaling, and speeding. Id.

There was essentially no known traffic violation in the instant case. The record reveals that around midnight on September 25, 1996, Lieutenant Jimmy Hightower of the Lowndes County Sheriff’s Department was sitting in the median of Interstate 75 using radar to check for speeding motorists. He did not state that this was a high crime or drug area. He noticed that Aguirre was traveling 49 mph in a 70 mph zone, a slow speed but within the regulated speed limit. Hightower then noticed that, due to Aguirre’s license tag cover, he could not read the expiration date for the temporary Ohio tag. High-tower said that he decided to pull behind Aguirre’s vehicle to see if he could read the expiration date. According to Hightower, when he came alongside Aguirre’s vehicle, Aguirre tried to cover his face with his hand. Hightower said that this aroused his suspicion and as a result, he initiated the traffic stop.

The state maintained that (1) Aguirre’s speed on the highway, though not a traffic violation, (2) his attempt to conceal his face and (3) Hightower’s inability to see the expiration date of Aguirre’s temporary license tag authorized the stop. That is, according to the state, these three factors were the specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct warranting the investigatory stop. See Edwards, supra.

In its order, the trial court did not state its reasons for granting the motion to suppress. However, at the close of the suppression hearing, the trial judge said that he hoped driving under the speed limit at midnight on an interstate is not grounds to stop someone. Regarding the expired tag, the judge said ££[t]he officer could not have seen the fine print [on the tag] because he wasn’t in a position to see fine print. He was on the side of the road, not behind the vehicle when it came by.” Finally, the judge concluded that ££[p]utting your hand up by your face is no grounds to stop somebody and you add these [the tag, hand movement and low speed] together and I find the testimony on why the defendant was stopped to be not credible.”

In addition to being factually distinguishable, Whren simply is inapplicable in this situation. The U. S. Supreme Court concluded in Whren that ££[t]he temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendment’s prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective.” 135 LE2d at 93. There is no evidence that the trial court in the instant case based its suppression of evidence on the fact that, although the arresting officer had probable cause to believe that a traffic violation had occurred, the arresting officer used the traffic violation as a pretext to stop Aguirre for some ulterior motive, such as to check for drugs. Rather, the trial court was bothered by the fact the officer decided to stop a motorist who was traveling within the regulated speed limit because the officer could not read the expiration date on the motorist’s license tag and the motorist moved his hand to his face while driving.

The dissent’s other claim that the trial court could not disregard the officer’s unrebutted testimony is unsupported by the record. Furthermore, it was within the court’s authority to find either portions or all of the officer’s testimony unbelievable, even absent contradictory testimony. Anderson, supra.

We are constrained by the “any evidence” rule to give deference to the trial court’s determination of facts, and the evidence in the record does not demand a different result than that obtained by the lower court. See Edwards, supra.

I am authorized to state that Presiding Judge Birdsong and Judge Smith join in this special concurrence.

Beasley, Judge,

dissenting.

I respectfully dissent because the trial court used the wrong test to determine the reasonableness of the stop and must reconsider the motion in light of Whren v. United States, 517 U. S._(116 SC 1769, 135 LE2d 89) (1996).

The trial court, after stating the facts it had derived from the only witness, the officer, gave as the reason for granting the motion: “I find the testimony on why the defendant was stopped to be not credible.” In Whren, the United States Supreme Court unanimously rejected the subjective pretext test to determine reasonableness of a motor vehicle stop under the Fourth Amendment. The officer’s personal motivation, the “why” of the stop, is not determinative of its constitutionality. It does not depend on whether an officer, acting reasonably, would have made the stop for the reason given by the officer who stopped the accused.

Instead, the Court retained the objective test of whether the police had probable cause to believe that a traffic violation had occurred. Ulterior motives do not invalidate justified conduct. As stated by the Court: “[T]he Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent.” (Emphasis in original.) Whren, supra, 135 LE2d at 98. Thus, the trial court’s credibility determination, which rejected the articulated reason for the stop in favor of one not permitted by law and concluded the stop was illegal, constituted an ill-founded basis for granting Aguirre’s motion.

Moreover, the trial court could not simply disregard the unrebut-ted testimony of the officer. “ ‘The direct and positive testimony of an unimpeached witness which is not inherently improbable, incredible or unreasonable and which is not contradicted, cannot be arbitrarily disregarded by the trier of fact. (Cits.)’ Nesbit v. Nesbit, 241 Ga. 351 (2) (245 SE2d 303) (1978).” Roberts v. State, 267 Ga. 669, 676 (10) (d) (482 SE2d 245) (1997); see State v. Stokes, 185 Ga. App. 718, 719-720 (365 SE2d 477) (1988). Compare Tate v. State, 264 Ga. 53, 56 (3) (440 SE2d 646) (1994) (pre-Whren, plus majority detected some evidence to support finding that officer’s testimony was not credible).

Because it is only arbitrary disregard that is prohibited, this does not conflict with the rule that, on a motion to suppress, “the credibility of the witnesses and the weight to be accorded their testimony rest with the trier of fact, who is under no obligation to believe a witness, even in the absence of contradictory testimony. The factfinder may accept part of a witness’ testimony and reject another part, and in the absence of evidence of record demanding a finding contrary to the judge’s determination, the appellate court will not reverse the ruling sustaining a motion to suppress.” (Citations and punctuation omitted.) Anderson v. State, 267 Ga. 116, 118 (2) (475 SE2d 629) (1996). The rule is one of respect for the superior knowledge gained by the person who can observe and hear the witness directly. The point in this case is that the trial court’s disbelief of the officer’s stated motivation does not mean that the stop was unreasonable. The issue of reasonableness does not pivot on the validity or invalidity of subjective motivation. The trial court in this case must reconsider the evidence, governed by its own sense of weight and credibility, and apply the WArere-articulated test to what it finds.

The evidence presented to the trial court does not foreclose denial of the motion as a matter of law, so this Court cannot affirm the grant of the motion under the “right for any reason” doctrine. Compare Frederick v. State, 226 Ga. App. 540, 542 (1) (487 SE2d 107) (1997); Hunt v. State, 212 Ga. App. 217, 219 (441 SE2d 514) (1994). To the contrary, there is ample evidence to support denial of the motion.

The officer could see that the vehicle had a temporary tag but could not see the handwritten expiration date; that would give a reason to stop it, to assure compliance which was- not readily ascertainable just by looking at the tag. The law provides that, with respect to vehicles required to be registered in Georgia, “[i]t shall be the duty of the operator of any vehicle to keep the license plate legible at all times.” OCGA § 40-2-41. The officer at some point realized that the tag was from Ohio, which may have subjected the vehicle’s operation to OCGA § 40-2-90 (b) (3) instead. It must be assumed that the law of Ohio would prohibit operation past the expiration date of the tag, as nothing contrary is shown in the record and Aguirre has not suggested otherwise. See Danzell v. Cannon, 224 Ga. App. 602, 603 (481 SE2d 588) (1997) (“Absent proper introduction and proof of the law of a sister state, it is presumed that such foreign law is identical to Georgia’s. [Cit.]”). Moreover, if Ohio law does not require that the license tag be kept legible at all times, the officer’s mistake of law would not invalidate the investigative stop. State v. Webb, 193 Ga. App. 2, 4 (1) (386 SE2d 891) (1989) (“a mistaken-but-honest belief [as to law] may nevertheless demonstrate the existence of ‘at least an articulable suspicion and reasonable grounds for the stop.’ [Cit.]”); State v. Wright, 224 Ga. App. 753, 754-755 (482 SE2d 441) (1997) (same principle as to mistake of fact).

The point is not that the plastic covering did not obscure the tag, as stated on p. 738 of the majority opinion, but that the handwritten expiration date was not visible from a police car close to it. The trial court even found that “The officer could not have seen the fine print because he wasn’t in position to see fine print.” The court also found the officer could see the tag numbers. But that is not what the officer was concerned about; he was concerned about the expiration date of this obviously temporary tag, and the only way to check was to stop the vehicle and either look at the tag close up or ask the driver for the registration document.

The majority opinion distinguishes Edwards v. State, 219 Ga. App. 239 (3) (464 SE2d 851) (1995), and Burtts v. State, 211 Ga. App. 840 (440 SE2d 727) (1994), but there is little difference in the key factual circumstances. The real difference is that the trial judge in those cases believed the officer, as to the precise nature of what he saw and why he stopped the vehicle. In Aguirre’s case the trial judge did not, as to the “why,” and pivoted the ruling on that fact. Whren refused to adopt a test which depended on whether “a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws.” Whren, supra, 135 LE2d at 94.

In Burtts the vehicle was not one which “failed to display any license tag,” as the majority opinion states. It had a drive-out license plate, which itself is valid so long as it is not used for more than 21 days. As recognized in that case, about the only way to assure that the vehicle is validly on the road is to stop it and check the documents the driver must carry. So the stop of a vehicle with such a license tag would be valid, as it is necessary in order to assure the vehicle is in compliance with the law. That is not so with a permanent tag, which has the current year displayed in numerals large enough and clear enough to read without stopping the vehicle.

In Edwards, as in Burtts, the vehicle was not one which “failed to display any license tag,” as the majority opinion states. Edwards’ vehicle had the authorized temporary tag but it was hanging in the rear window rather than on the rear license plate area. The officer did not see it until after he stopped the car. The stop was valid because there was a reasonable belief that the vehicle did not have a “license plate . . . fastened to the rear of the vehicle in a position so as not to swung and ... at all times plainly visible.” OCGA § 40-2-41. Also, because Edwards was traveling 45 mph in a 65 mph zone on the interstate and it was just before midnight, the slow speed and late hour raised a reasonable articulable suspicion that the driver might be under the influence. The combination of these factors legitimized the stop. “[W]hile probable cause is necessary for an arrest, it is not for an investigative stop”; an investigative stop is justified by “ ‘specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. [Cit.]’ ” Burgeson v. State, 267 Ga. 102, 105 (475 SE2d 580) (1996), citing Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968). The specific reasonable articulable suspicion must be based on the totality of the circumstances. United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981).

Aguirre, too, was traveling late at night well below the speed limit in the center lane of the interstate highway (at 12:14 a.m. going 49 mph in a 70 mph maximum, 40 mph minimum zone). The officer was concerned that the driver might be impaired and, having noticed as the vehicle went by him that it bore a temporary tag, he determined to check its validity. When the officer pulled up beside Aguirre, he “threw his hand up covering up his face ... he took his hand like this (indicating) trying to cover up his face like that wdth his hand,” and the officer dropped back to look at the tag but when he looked at it he could not see the writing on the temporary paper tag, “the handwritten numbers wdth an ink pen” which showed “the expiration date or whatever.” These five factors, i.e., time, speed, location, effort to conceal, and possible expired tag, caused the officer to stop the vehicle to determine at least whether the tag had expired, and secondarily to warn that by driving so slow in the center lane Aguirre would “get run over,” in the officer’s words. A vehicle being driven so slow under these circumstances in addition roused his suspicion of criminal activity beyond the license plate possible expiration. According to Whren, that would not invalidate the stop.

The trial court’s findings and decision on a motion to suppress must have a substantial basis. Chastain v. State, 196 Ga. App. 50 (1) (395 SE2d 570) (1990). The judgment should be reversed and the case remanded for a new ruling based on the law in force.

Decided December 5, 1997.

H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellant.

J. Converse Bright, for appellee.

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

       Although the Court referred to “probable cause,” it cited Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979), which recognized that an investigative stop is valid if there is “at least articulable and reasonable suspicion” of a violation. Id. at 663. See Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994). For a case applying the now-rejected pretext basis, see Edwards v. State, 219 Ga. App. 239, 244 (3) (464 SE2d 851) (1995).


author: Beasley, Judge. SMITH, Judge,

text:
    A97A1589.
    BARLOW v. THE STATE.
    (494 SE2d 588)
   Beasley, Judge.

Timothy Bryan Barlow was convicted of two counts of molesting a seven-year-old child, and the court denied his amended motion for new trial. A videotaped interview of the child by a police detective is the subject of Barlow’s two enumerations of error. He challenges its admission as evidence and the court’s refusal to permit expert evidence concerning interview techniques used. Neither enumeration requires a new trial.

1. Barlow contends the videotape was incompetent evidence because it did not reveal “sufficient indicia of reliability” as required by OCGA § 24-3-16, particularly because expert testimony plus inconsistencies between the videotaped statement and the victim’s trial testimony show the child’s “general lack of credibility.” His expert witness, a psychologist, testified at the hearing about her conclusions concerning the “reliability of the interviewee.” She stated that the interviewer, an investigator, posed leading questions rather than open-ended questions; that due to an apparent lack of spontaneity, the victim appeared to have been coached; that the victim was “reinforced for being smart and bright” by the investigator; and that the atmosphere was “stiff and uncomfortable.” Based on these factors, she concluded that the interview and hence the child’s story were unreliable.

A trial court has broad discretion concerning the admission of evidence. Gregg v. State, 201 Ga. App. 238, 240 (3) (a) (411 SE2d 65) (1991). When considering whether to admit a child’s out-of-court statement, a court must determine whether the circumstances show sufficient “indicia of reliability.” Id. at 240 (3) (b). A non-exhaustive list of factors are the environment in which the statement is made, its spontaneity, the child’s general demeanor and condition, the presence or absence of coaching, and the consistency of the child’s out-of-court statements. Id.

Here, as in Penaranda v. State, 203 Ga. App. 740, 741 (2) (417 SE2d 683) (1992), the court conducted a hearing outside the jury’s presence and considered the context and nature of the interview. Relying on the factors set out in Gregg, it found the atmosphere in the “child-friendly” interview room to be reasonably comfortable and noted the absence of a “burdensome” number of people, including the child’s mother and family. The court further found the child to be “very intelligent” and emotionally stable. This cooperative demeanor did not indicate to the court her desire to “please” anyone but instead showed that “she was trying to tell her story and get out of there.” The court observed no threats or promises and concluded that the videotaped statements were consistent with her other statements. In consequence, the court ruled the videotape was admissible because it was “a reliable instrument of the recollection and recording of the child’s statement.”

This did not constitute an abuse of discretion, as the evidence supported the ruling. The video camera was hidden behind a mirror, and only two detectives, dressed in civilian clothes, appeared to be present in the room. See generally Knight v. State, 210 Ga. App. 228, 229 (435 SE2d 682) (1993). Neither detective made any threats or promises during the interview. As in Knight, the child appeared to be “reasonably calm, composed, and coherent, and to understand the need for truthfulness.” Id. The mother testified that she did not coach the victim and that the child did not have a history of telling lies. See Tucker v. State, 208 Ga. App. 441, 442 (430 SE2d 811) (1993). There is no evidence the child had been interviewed by law enforcement officials before the videotaped interview. See generally Heard v. State, 221 Ga. App. 166, 168 (471 SE2d 22) (1996).

Barlow argues that the child’s statements during the interview were inconsistent and that the videotape was inconsistent with her trial testimony. It is true that at times during the interview the victim appeared confused as to the location of the alleged incidents; she sometimes stated she could identify the locations and at other times said she could not. According to Barlow, these inconsistencies were often caused by the detective’s “compound” and “confusing” questions. He characterizes other portions of the child’s statement as being confusing. These alleged inconsistencies do not invalidate the interview but are simply one of the many factors the trial court was required to consider in determining threshold reliability.

Conflicts between the taped statements and trial testimony were subject to a cross-examination and to argument to the jury that these alleged inconsistencies undermined the victim’s credibility. As stated in Ware v. State, 191 Ga. App. 896, 897 (2) (383 SE2d 368) (1989), “conflicts between the videotaped statement and the testimony of the child at trial would not necessarily render the former inadmissible, but would rather present a question of credibility of the witness to be resolved by the trier of fact, here the jury.” See Gregg, supra at 241 (3) (c) (cross-examination); Heard, supra at 168 (2) (cross-examination).

2. The defendant was not deprived of presenting competent, relevant evidence to the jury on an issue in the case. The record and the law compel the conclusion that the trial court did not err in excluding the testimony of the psychologist. She was offered by Barlow to show that the detective’s method of interviewing the child was so flawed that it elicited statements which were not credible.

No precedent is cited by Barlow for the novel idea that a defendant is entitled to attack the credibility of a child-witness videotaped interview, which the jury could and did see for itself, by calling a behavioral psychologist to testify that the techniques employed by the interviewer did not meet professional standards or protocols. Were this the law, then the testimony of an accuser in court would also be subject to attack by such a trained specialist. A psychologist would be able to challenge the prosecutor’s or the defense counsel’s manner of eliciting testimony.

Such assistance is not needed by a jury to assess credibility, for it can size up the conditions, environment, and manner of inquiry itself. Questioning children to ascertain truth is commonplace. Ordinary women and men can detect the suggestibility of leading questions even if they do not know the legal term for such answer-guiding queries. Ordinary women and men can determine the effect of surroundings and circumstances on a person’s statements, which is precisely why the United States Supreme Court reversed the conviction in Crane v. Kentucky, 476 U. S. 683 (106 SC 2142, 90 LE2d 636) (1986), a case cited by defendant. Ordinary women and men are selected from the community for the very purpose of weighing evidence and judging credibility of sworn witnesses, including children, in the truth-seeking process. Hicks v. State, 175 Ga. App. 243, 244 (4) (333 SE2d 113) (1985); Crane, supra at 688, and cases cited therein. Any determination concerning witness credibility is a matter solely within the jury’s province. See, e.g., Gorski v. State, 201 Ga. App. 122, 123 (2) (410 SE2d 338) (1991) (applies this fundamental rule). In fact, the court in Gorski rejected proposed testimony of the opinion of a psychologist on “ ‘the truthfulness or credibility of the victim [because it] was not beyond the ken of the jurors.’ [Cits.]” Id.

It is futile for Barlow to attempt to distinguish the purpose of the proposed testimony as being to share a body of knowledge concerning the proper method of interviewing a child and the possible effect of techniques the detective used. That is just another way of saying that the purpose was to challenge the believability of the child’s statements to the detective. What was at issue was not whether the detective followed questioning standards set by psychologists’ professional organizations but rather whether the child’s responses were truthful, considering her demeanor, behavior, manner of wording her responses, content of her responses, surroundings, and all other circumstances of her jury-observed out-of-court statements.

Defendant cites Crane as analogous and quotes the portion of that opinion which restates the bedrock principle that due process and Sixth Amendment rights are violated if “competent, reliable evidence bearing on the credibility of [an out-of-court statement is excluded] when such evidence is central to the defendant’s claim of innocence.” Crane, supra at 690. Crane’s conviction was reversed because testimony from two police officers about the environment in which the police secured his confession was excluded. Crane had sought to show that the confession was unworthy of belief because he, a teenager, was “detained in a windowless room for a protracted period of time, . . . surrounded by as many as six police officers during the interrogation,. . . had repeatedly requested and been denied permission to telephone his mother, and . . . had been badgered into making a false confession.” Id. at 685. The Supreme Court held that defendant had a right to make the jury aware of these circumstances, so it could determine whether the physical and psychological environment tainted the confession. The trial court had too narrowly considered the relevance of the evidence, correctly finding it relevant to the legal determination of voluntariness but incorrectly concluding that it therefore was not relevant to the factual determination of credibility. The “evidence about the manner in which a confession [is] secured will often be germane to its probative weight, a matter that is exclusively for the jury to assess,” the court confirmed. Id. at 688.

The same is true for the inculpatory out-of-court statement of the victim in a child molestation case. And in this case the jury had some of those surrounding details from the testimony of the interviewing detective, who was subject to cross-examination, and from its observation of the videotape twice.

Detective Brian, who had long been assigned to the crimes against children unit, testified that the interview took place at the Open Gate, a shelter for abused children, in the video room equipped for just such interviews. The mother brought the child, and he talked to her first. Then he interviewed the child, in the presence of one other seated officer. Afterwards, they and the child’s mother and possibly her father went to locations identified by the child during the interview as places where the acts were committed. They even went to the drug store where the child led the detective to the aisle where the Vaseline was displayed.

Defendant did not cross-examine the detective regarding the environment in which the child was interviewed or for how long, which he could have done had it been intimidating or in any way suggestively impacting on her statements. There was good reason to omit cross-examination in this regard, for Detective Brian had testified during the pretrial reliability hearing conducted pursuant to OCGA § 24-3-16. He had testified that while he was first talking with the mother, the child was in the playroom playing with toys, that the approximately 10' by 15' room where the child was interviewed is designed for children, with larger pink chairs for adults and a smaller chair for children with a small table so they feel comfortable. The room is carpeted and has children-type pictures on the wall. The video camera is hidden behind a one-way mirror. The psychologist did not know most of these facts, because she only observed the videotape. The jury knew the duration of the interview, and it saw how the detective and policeman were dressed, the easy chairs they and the child sat on, and the small table around which the three were seated. So, unlike the situation in Crane, the circumstances of the interview and the environment in which it was conducted were not kept from the jury by the exclusion of any offered evidence.

Defendant sought to introduce the testimony of Dr. Robbins, the psychologist, about “the proper method of interviews, because the court has admitted into evidence an interview with [the child].” When asked by the court what the purpose of her testimony was, defendant’s counsel responded that she would supply the reason the child told the story displayed in the videotape, i.e., that she was conditioned and led to do so. The psychologist would attack the method as posing leading questions and questions that were not open-ended, as well as praising the child for certain answers she gave. In the psychologist’s opinion, this made the child’s statements unreliable.

Reliability of a child’s statement is a legal question and is subject to court determination under OCGA § 24-3-16. The court must assure that, before a child’s out-of-court statement describing sexual contact is admitted into evidence, “the circumstances of the statement provide sufficient indicia of reliability.” In this instance, the court performed its task carefully and after extensive analysis of factors related to reliability.

Although the trial court heard the psychologist’s testimony over objection by the State during the pretrial hearing, it did so not necessarily because it was admissible on the issue of reliability but because, in the court’s words, “I’m always willing to learn from experts, and I’ll overrule the objection and hear what the witness has got to say.” Later, when the psychologist was offered as an expert during trial, the court disclosed that it had not been “greatly impressed” by her testimony, and it expressly did not find her to be an expert on this subject. The court correctly ruled at trial that what her testimony was offered for “is not above the ken of common man to understand . . . nothing unique that the jury needs an expert opinion ... to explain” and that, instead, it is a subject for argument to the jury. The court’s reference is obviously to the issue of credibility, not reliability, the legal issue previously set to rest by the court itself. Credible means capable of being credited or believed, worthy of belief; reliable means worthy of dependence or reliance. Webster’s Third International Dictionary, unabridged. They are shades of the same attribute. The court makes the threshold decision as to whether the evidence is sufficiently reliable to submit it to the jury to make the final decision whether to believe it as true.

The psychologist would have testified that the interviewer’s questions influenced the content of the child’s responses because some questions were leading, some were not open-ended but instead directional, questions that were repetitive suggested that the first answers were not acceptable, and the child was reinforced by praise for correct answers to test questions not related to the incidents. Aside from the manner of questioning, the psychologist based her opinion on what she regarded as an intimidating environment because it was “very stiff and uncomfortable” for a small child with two big men, and also a suggestion of coaching and lack of spontaneity raised by the nature of the child’s answers.

These were all matters the jury could observe and, from common knowledge, weigh without scientific expertise to enlighten it. They were all matters from which the jury, drawn from a cross-section of the community, could judge credibility, just as the trial court, without the assistance of an expert in psychology, could consider them in its own factfinding of reliability under the instructions of Gregg v. State, supra at 240 (3) (b). They were all matters which defendant could argue based on the evidence. The jury was not handicapped in its factfinding of guilt or innocence by the absence of the expert’s opinion.

A new trial is not warranted.

Judgment affirmed.

Andrews, C. J., Ruffin and Eldridge, JJ, concur. McMurray, P. J., concurs in Division 1 and in the judgment. Birdsong, P. J., and Smith, J., concur in Division 1 and dissent as to Division 2 and the judgment.

SMITH, Judge,

concurring in part and dissenting in part.

I concur fully with Division 1 but must respectfully dissent from the majority’s holding in Division 2.

Barlow sought to present expert testimony on the narrow issue of the proper method of interrogating a child. His witness’s expertise lay in the field of adolescent family therapy. She stated that she had testified as an expert in other child abuse cases, giving her opinion about videotapes, specifically stating her opinion about interview techniques used in the tapes. The witness testified concerning standards used by her in evaluating videotaped interviews. She stated that these standards, generated by the American Psychological Association and the Georgia Psychological Association, are set out in textbooks and that she had learned about them in large part by attending continuing education seminars and workshops. When asked to identify the standards, the witness stated that the interview atmosphere should be comfortable and that the interview should be done promptly after the alleged abuse is reported. She emphasized that questions should be “very open-ended, especially of children ages six and seven and older.”

It is significant that the detective who primarily conducted the interview testified that he had attended numerous interview schools and child abuse investigation schools designed to instruct in methods for interviewing alleged child abuse victims. In fact, he was an instructor at schools concerning child abuse investigation. At these schools he learned, among other things, to ask open-ended, rather than leading questions.

With respect to the videotape in this case, the expert stressed the importance of open-ended questions and gave examples of proper questioning techniques. She found many of the questions posed by the interviewers to be leading, rather than open-ended. In particular, she noted the interviewer twice mentioned that the victim’s mother told him “something happened” involving Barlow. In the expert’s opinion, alluding to the victim’s mother while asking these leading questions could have influenced the victim’s answers. She also opined that the victim appeared to have been coached. She testified that the detail with which the victim told her story was unusual for a seven-year-old child and that it appeared to her the victim had told her story several times. The witness noted that the child was reinforced by the interviewers, who would tell her she was “smart” for saying “what she thinks he wants her to say.” She testified that “[a]ll children want to be patted on the back and told they’re smart.” The witness found the interview environment to be intimidating.

The information about which the expert testified was not within the ken of ordinary people. She did not testify about the ultimate issue: whether the victim had or had not been sexually abused. The focus of her testimony outside the jury’s hearing was on the interview techniques she observed and her professional opinion about the psychological effect on a child of these techniques. Her knowledge was gleaned from a body of psychological study found in textbooks and taught in classes and seminars. She testified to specific standards developed by a limited community of professionals, standards most likely unknown to a layperson. Her training, research, and evaluation of the tape qualified her to give an opinion concerning the interview techniques used by the detectives. Indeed, the fact that the detective who was the primary interviewer attended courses in interviewing children speaks of the necessity for training and education beyond that found from the experience of everyday life.

This information would have been helpful and necessary to assist the jury in assessing the videotape. As argued by defense counsel to the trial court, the information the expert would have shared with the jury “comes from some body . . . some authority ... an authority that has been studied, considered, digested, and can be applied, and opined about by” his expert. Without this information, although the trial court ruled that counsel could argue about certain aspects of the videotape, the jury did not have the benefit of psychological information needed to evaluate the effect of the techniques. In short, the jury was deprived of a “yardstick” against which to measure the arguments of counsel.

It is important to emphasize that to the extent Barlow intended that his expert testify concerning the victim’s credibility, such testimony was clearly impermissible; any determination concerning witness credibility is a matter solely within the jury’s province. See, e.g., Gorski v. State, 201 Ga. App. 122, 123 (2) (410 SE2d 338) (1991). But insofar as Barlow sought to introduce the testimony for the limited purpose of sharing a body of knowledge concerning the proper method of interviewing a child and the possible effect of techniques such as those used here, the trial court erred in excluding the expert’s testimony.

I am authorized to state that Presiding Judge Birdsong joins in this opinion.

Decided December 5, 1997

Cauthorn & Phillips, Thomas E. Cauthorn III, Bruce W. Phillips, for appellant.

Thomas J. Charron, District Attorney, Frank Ft. Cox, James Albertelli, Assistant District Attorneys, for appellee.

       On appeal, Barlow invokes the due process clause of the Georgia Constitution, Art. I, Sec. I, Par. I, and the due process clause of the United States Constitution, Amendment 5. The latter applies only to federal proceedings, but the Fourteenth Amendment due process requirement applies to the states, as recognized in Crane, and thus it applies here.

       Like the Georgia statutory test for admission of a child’s statement describing sexual contact or physical abuse, “reliability” is also the constitutional due process test for admission of testimony concerning out-of-court identifications. See Neil v. Biggers, 409 U. S. 188, 197-201 (93 SC 375, 34 LE2d 401) (1972).

       For example, rather than ask “What did Tim do? Did he touch you somewhere?” the expert suggested a more proper question would be “Did something happen?” According to the expert, the former type of question effectively was “putting words in [the victim’s] mouth.”


author: Beasley, Judge.

text:
    A97A1652.
    A97A1653.
    SNELLINGS v. SHEPPARD. CANDLER v. SHEPPARD.
    (494 SE2d 583)
   Beasley, Judge.

In an earlier suit, various members of the Candler family, by their attorney Snellings, sued Sheppard and her husband. After the trial court’s grant of Sheppard’s motion for summary judgment was affirmed in East Piedmont 120 Assoc. v. Sheppard, 209 Ga. App. 664 (434 SE2d 101) (1993), she brought this action against the Candlers and their attorney Snellings for abusive litigation. OCGA § 51-7-80 et seq. She wants to discover defendants’ income tax returns and other documents for the purpose of obtaining information concerning their financial circumstances. The trial court granted Sheppard’s motion to compel discovery and $500 attorney fees for obtaining the order. We granted the Candlers’ and Snellings’ applications for interlocutory appeal.

Sheppard and her husband own various tracts of land. According to Sheppard’s husband, they decided to title approximately one-half of their holdings in her name, so he conveyed to her an undeveloped commercial tract of approximately 13 acres, located at the corner of East Piedmont Extension and Roswell Road in Atlanta (the East Piedmont property).

The Candlers’ business, through Candler Development Company (CDC), is to locate sites for Publix stores and then develop Publix-anchored shopping centers at approved locations. When Publix decided to begin operations in Georgia, the East Piedmont property was advertised for sale. The Candlers offered to purchase 9.3 acres from Sheppard’s husband, who they assumed was the owner. This acreage was valued at about $1.6 million. Sheppard’s husband responded by offering to participate in the development of the shopping center through a joint venture with CDC.

The Candlers drafted a letter of intent for a joint venture between Sheppard’s husband and CDC. This letter, signed by Sheppard’s husband, stated he would contribute “his land” to the joint venture and CDC would develop the property and secure Publix as the anchor tenant. On the strength of the letter, the Candlers incurred various developmental expenses.

After Publix gave conditional approval to the East Piedmont location, the Candlers prepared a joint venture agreement between themselves and Sheppard’s husband. The agreement contemplated formation of a limited partnership (East Piedmont 120 Associates) to develop the property. By this time, the Candlers had become aware that Sheppard’s husband did not own the property, as the agreement identified Sheppard as the owner and stated that her husband was negotiating with her to reacquire it. Under the agreement, the property would be transferred to the limited partnership after Sheppard conveyed it to her husband, and he was to be compensated by receiving certain preferences on partnership distributions after the Candlers were reimbursed for their various services by about $1 million in fees.

Sheppard’s husband showed this agreement to her, and they concluded that this proposal was wholly unacceptable. Sheppard’s husband refused to enter into the proposed joint venture agreement but offered to sell the property to the Candlers if they could secure financing. The Candlers submitted offers to purchase 8.3 and then 9.3 acres. These offers were rejected for a number of reasons (little or no earnest money was to be paid, closing was delayed, the Candlers’ solvency was questioned, solvent prospective purchasers could close forthwith for $1.6 million, and the Sheppards were in financial distress because of cash demands for payment of bank loans). After rejecting the Candlers’ offers, Sheppard in consultation with her husband accepted an offer to sell the property to a third party.

In 1992, the Candlers, East Piedmont 120 Associates, and CDC filed a “complaint in law and equity” against the Sheppards. They charged breach of contract and fraud, based on allegations that Sheppard’s husband, while acting as her agent with her express permission, entered into an oral joint venture agreement with the Candlers and CDC for the development of the property. The Candler group filed a notice of lis pendens on the entire tract. In addition to damages, the complaint sought a decree of specific performance mandating that the Sheppards make the property available to the joint venture or sell the property directly to the plaintiffs.

The trial court denied Sheppard’s husband’s motion for summary judgment on all issues except that concerning breach of contract. The property was declared free and clear of any lis pendens, and the sale of the property to another was completed.

Sheppard instituted this action in 1994, claiming abusive litigation. In April 1996, she served the Candler defendants and Snellings with a notice to produce and request for production of the following documents: (1) copies of their federal income tax returns from 1992 through 1995; (2) copies of any loan applications made by them from 1992 to present; (3) copies of any of their financial statements, asset summaries or net worth statements from 1992 to present; and (4) a list of all real property in which they have an ownership interest.

Defendants responded, objecting to these discovery requests on grounds they were overly broad, burdensome, harassing, not reasonably calculated to lead to the discovery of admissible evidence, and not relevant to the subject matter of the action. Snellings’ supplemental response stated he was not in possession of any of the requested documents except his own tax returns.

Sheppard moved to compel discovery, arguing that the information sought is relevant to her claim against the Candler defendants for abusive litigation and is also relevant to her claim against all defendants for punitive damages. The trial court granted Sheppard’s motion based on her arguments.

In Case No. A97A1653, the Candler defendants contend: (a) their financial circumstances are not relevant to Sheppard’s claim against them for abusive litigation and (b) their tax returns and other sensitive financial documents should be subject to disclosure only if and when Sheppard obtains an award of punitive damages.

In Case No. A97A1652, Snellings submits that the order is in error because: (a) his tax returns are neither relevant nor reasonably calculated to lead to discovery of admissible evidence, and production of such information is more prejudicial to him than beneficial to Sheppard; (b) Sheppard did not make the required showing of an entitlement to punitive damages; and (c) there was no basis for the court’s award of attorney fees to Sheppard.

Appellants all challenge Sheppard’s entitlement to the subject documents for all years requested.

In general, parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action or appears reasonably calculated to lead to the discovery of admissible evidence. OCGA § 9-11-26 (b) (1); E. H. Siler Realty &c. v. Sanderlin, 158 Ga. App. 796, 797 (1) (282 SE2d 381) (1981).

1. The first question is whether the Candler defendants’ financial condition is relevant to Sheppard’s abusive litigation claim against them.

“Any person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation if such person acts: (1) With malice; and (2) Without substantial justification.” OCGA § 51-7-81. “‘Malice’ means acting with ill will or for a wrongful purpose and may be inferred in an action if the party initiated, continued, or procured civil proceedings or process in a harassing manner or used process for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.” OCGA § 51-7-80 (5); see OCGA § 51-7-80 (8) (B) (“ ‘Wrongful purpose’. . . results in or has the effect of: Attempting to unjustifiably accomplish some ulterior or collateral purpose other than resolving the subject controversy on its merits.”). “ ‘Without substantial justification,’ when used with reference to any civil proceeding, claim, defense, motion, appeal, or other position, means that such civil proceeding, claim, defense, motion, appeal, or other position is: (A) Frivolous; (B) Groundless in fact or in law; or (C) Vexatious.” OCGA § 51-7-80 (7).

Sheppard argues that evidence that the Candler defendants were financially unable to purchase her property would show they could not have tendered the purchase money required in order to obtain a decree of specific performance (see Covington v. Countryside Investment Co., 263 Ga. 125, 126 (1) (428 SE2d 562) (1993)), thereby authorizing a jury to find that they named her as a defendant in the suit not to obtain an adjudication of their claims, but (a) to prevent her from selling the property to anyone else by filing the notice of lis pendens and (b) to force her to sell the property to them with concessions they could not have otherwise obtained.

The Candler defendants respond that their personal financial circumstances are not relevant to their ability to purchase Sheppard’s property, because purchases of land for commercial real estate development are financed not from personal assets but through outside entities such as banks, financial institutions, or co-investors. There is no evidence of such outside source. And Candler Development Company, the company through which the Candlers did business, is a legally nonexistent entity. Consequently, the record shows that, if the Candlers were to obtain financing, it would have had to be on the strength of their personal assets. Evidence of their personal financial circumstances is thus relevant to Sheppard’s abusive litigation claim.

2. The next question raised by the parties is whether Sheppard has made the requisite showing of entitlement to punitive damages to support discovery of information concerning their financial circumstances.

We do not reach this question, because punitive damages are excluded from the tort of abusive litigation. First, “[t]he abusive litigation tort set forth in OCGA § 51-7-80 et seq. is in derogation of the common law, . . . must be strictly limited to the meaning of the language used, and not extended beyond the plain and explicit statutory terms. [Cit.]” Kirsch v. Meredith, 211 Ga. App. 823, 825 (440 SE2d 702) (1994). It is true that under OCGA § 51-7-83 (a), a prevailing plaintiff “shall be entitled to all damages allowed by law as proven by the evidence. . . .” (Emphasis supplied.) But at comm on law, “[p]unitive damages [were] excluded [from the recoverable damages for the tort of civil abuse of process], as the tort itself [was] designed as a deterrent. [Cits.]” Yost v. Torok, 256 Ga. 92, 95 (10), n. 3 (344 SE2d 414) (1986). We discern no legislative intent to change the law so dramatically as to authorize by silence the imposition of punitive damages when such damages were hitherto forbidden.

Although neither Snellings nor the Candler defendants contest Sheppard’s right to seek punitive damages, it is necessary to resolve the issue for two reasons. First, we cannot affirm an order compelling discovery of financial information because of its relevance to a claim for punitive damages, where Georgia law does not allow such damages in the action. Moreover, were we to hold that the issue will not be ruled on because not raised or ruled on below or raised on appeal, in all likelihood appellants would raise it later, at the least when jury instructions are prepared. Therefore, in the interests of judicial economy and the avoidance of protracted litigation, we resolve the issue now.

3. Next is the question of whether the Candler defendants’ tax returns are subject to discovery.

Although income tax returns are not privileged, they are not automatically discoverable upon a de minimis showing of relevancy. Borenstein v. Blumenfeld, 151 Ga. App. 420 (1), 421 (260 SE2d 377) (1979). “ ‘Unless clearly required in the interests of justice, litigants ought not to be required to submit (income tax) returns as the price for bringing or defending a lawsuit.’ Wiesenberger v. W. E. Hutton & Co., 35 FRD 556, 557 (S.D. N.Y. 1964).” Id. at 421. In balancing one party’s right to discovery against another party’s right to privacy, Borenstein held that “[t]he interests of justice do not require production of tax returns in the face of [an OCGA § 9-11-26 (c)] motion for protective order [or an OCGA § 9-11-34 (b) (2) objection to a request for production of documents] where other discovery methods are available to obtain the same information.” Id.

Sheppard has requested that the Candlers produce documents other than their tax returns which should reveal their financial condition. Therefore, under Borenstein, Sheppard is not now entitled to discover the Candlers’ tax returns.

If it should appear that these other documents do not accurately reflect the defendants’ financial condition of the relevant times, then the court could compel production of the tax returns. See Wiesenber-ger, supra at 558. At this point, however, the compelled production of the tax returns exceeded the trial court’s discretion. See also A Southern Outdoor Promotions v. Nat. Banner Co., 215 Ga. App. 133, 134-136 (3), (4) (449 SE2d 684) (1994).

4. The fourth issue is whether Sheppard is entitled to discover the documents for all years requested.

The Candler defendants’ financial condition is relevant only at one point in time. Insofar as Sheppard’s underlying abusive litigation claim is concerned, the question is whether the Candlers had the ability to purchase her property when they filed suit in 1992. Consequently, Sheppard is entitled to discover only those documents relating to the Candler defendants’ financial condition in 1992.

Decided December 5, 1997

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Gregory H. Wheeler, for appellant (case no. A97A1652).

McLain & Merritt, M. David Merritt, for appellant (case no. A97A1653).

Dupree, Johnson & Poole, Hylton B. Dupree, Jr., Russell D. King, for appellee.

5. In view of our holding that the Candler defendants’ financial condition has relevance to Sheppard’s abusive litigation claim, their arguments in regard to delaying disclosure of the requested information until after any award of punitive damages is returned are moot.

6. Since substantial parts of the order granting Sheppard’s motion to compel discovery must be reversed, defendants’ opposition to Sheppard’s motion to compel was “substantially justified.” OCGA § 9-11-37 (a) (4) (A). An award under § 9-11-37 (a) (4) (A) was not justified.

The order compelling discovery is affirmed in Case No. A97A1653, except as to the Candlers’ tax returns and except as to documents not relating to the Candler defendants’ financial condition in 1992, with respect to which items the order is reversed.

The order compelling discovery is reversed in Case No. A97A1652.

Judgment affirmed in part and reversed in part in Case No. A97A1653. Judgment reversed in Case No. A97A1652.

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