author: McMurray, Presiding Judge. Carley, Chief Judge,

text:
    A89A1245.
    DEPARTMENT OF TRANSPORTATION v. B & G REALTY, INC. et al.
    (388 SE2d 749)
   McMurray, Presiding Judge.

This appeal arises from condemnation proceedings initiated by the Department of Transportation (“DOT”), acting for and in behalf of the State of Georgia, against property owned by appellees. After the property was condemned, appellees filed a petition pursuant to OCGA § 32-3-11 seeking to set aside, vacate and annul the declaration of taking together with any title acquired thereby. A second count was added to the complaint by amendment alleging trespass on the part of DOT and demanding actual and punitive damages. A hearing was held in the superior court, which entered an order containing detailed findings of fact and conclusions of law and holding that DOT’s actions showed a pattern of bad faith and abuse and misuse of powers as contemplated by OCGA § 32-3-11. On the issue of attorney fees, the court further held that appellees were entitled to costs and attorney fees as in all cases where a condemnation action is annulled under OCGA § 32-3-11.

DOT has brought a direct appeal from this judgment, although the second count of appellees’ complaint remains pending and undetermined in the trial court, as there is no ruling on this issue in the record. “ ‘Where there is a case involving multiple . . . claims, a decision adjudicating fewer than all the claims ... is not a final judgment. (Cit.) In such circumstances, there must be an express determination under OCGA § 9-11-54 (b) . . . or there must be compliance with the requirements of OCGA § 5-6-34 (b) . . . Where neither of these code sections [is] followed . . . , the appeal is premature and must be dismissed. (Cits.)’ (Cit.) Because the appropriate appellate procedure was not followed in this multiple-claim case, the appeal must be dismissed.” Patrick v. Glass, 188 Ga. App. 737 (374 SE2d 229) (1988). Compare Peeples v. City of Atlanta, 189 Ga. App. 888 (1) (377 SE2d 889) (1989).

Appeal dismissed.

Beasley, J., concurs. Carley, C. J., concurs specially.

Carley, Chief Judge,

concurring specially.

Although I agree with the majority that, absent certification pursuant to OCGA § 9-11-54 (b) or compliance with OCGA § 5-6-34 (b), we have no jurisdiction over this appeal, I must write separately to emphasize that our holding should not be misconstrued as intimating that appellee-condemnees’ pending trespass claim against appellantcondemnor has any potential viability in this condemnation action.

Decided November 22, 1989.

Michael J. Bowers, Attorney General, H. Perry Michael, First Assistant Attorney General, Harrison W. Kohler, Deputy Attorney General, Roland F. Matson, Senior Assistant Attorney General, Thurman E. Duncan, for appellant.

Page, Scrantom, Harris & Chapman, William G. Scrantom, Jr., Shannon F. Land, for appellees.

The original petition that was filed by appellees to set aside the declaration of taking did not initiate a new proceeding against appellant. Appellees’ petition was filed in the context of the ongoing condemnation proceeding that had been initiated by appellant’s declaration of taking. See OCGA § 32-3-11 (c). Nothing in the applicable provisions of OCGA § 32-3-1 et seq. authorized appellees to amend their petition so as to assert, in the context of this condemnation proceeding, a counterclaim for tort damages against appellant. “All of the procedures outlined in OCGA § 32-3-1 et seq., are geared exclusively towards answering questions relating to the propriety of the condemnation at hand or the value of the condemned land. Here [appellees’ amendment to their petition to set aside] seeks [damages for appellant’s alleged trespass]. As such, the subject of the [amendment to appellees’ petition] lies outside the bounds of this type of condemnation action. . . . The legislature made no provisions for tort damages . . . in this type of condemnation action. . . . [T]he trial court’s dismissal of [appellees’ counterclaim for trespass damages is, therefore, mandated].” Brooks v. Dept. of Transp., 254 Ga. 60, 62 (2, 3) (327 SE2d 175) (1985).

Thus, the trial court’s setting aside of the declaration of taking is not a “final” order in this condemnation action solely because of the “pendency” of appellees’ procedurally nonviable counterclaim for trespass damages. However, this court has no jurisdiction to dismiss appellees’ unauthorized counterclaim and nothing in OCGA §§ 9-11-54 (b) and 5-6-34 (b) provides an exception for the case, such as this, wherein finality is absent solely because of a clearly unviable claim that is still pending in the trial court. Accordingly, I must concur in the dismissal of appellant’s appeal, even though the direct appealability of the order setting aside the declaration of taking is dependent only upon the trial court’s ultimate dismissal of appellees’ totally unauthorized pending counterclaim.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A89A1793.
    In the Interest of A. B., a child.
    (388 SE2d 750)
    Decided November 22, 1989.
   McMurray, Presiding Judge.

A. B., a 16-year-old child, was found to be in a state of “delinquency and in need of treatment [and] rehabilitation” in that on February 17, 1989, he “committed the act(s) alleged ... to wit CARRYING CONCEALED WEAPON (16-11-126) [and] CARRYING PISTOL WITHOUT LICENSE (16-11-128).” A. B. now appeals and asserts the general grounds in his sole enumeration. Held:

A. B. challenges the credibility of the State’s witness and argues that there was insufficient evidence offered at his adjudicatory hearing to sustain a finding that he was “carrying a concealed weapon . . . about his person. . . .” OCGA § 16-11-126 (a).

“ ‘The credibility of a witness is a matter for the trier of fact, and this court will not disturb the [fact-finder’s] finding unless it is insupportable as a matter of law. (Cit.) . . .’ May v. State, 179 Ga. App. 736 (1) (348 SE2d 61) (1986).” Burroughs v. State, 186 Ga. App. 40, 41 (1) (366 SE2d 378). In the case sub judice, W. L., a high school student, testified that during the morning of February 17, 1989, A. B. approached him in the school cafeteria and attempted to sell him a pistol. W. L. further testified that he followed A. B. to a student’s locker; that A. B. produced a pistol from the locker; that A. B. concealed the weapon with his hand and close to his body; and that A. B. then passed the pistol to W. L. for inspection. W. L. explained that he returned the gun to A. B. and walked away, but that A. B. approached him from behind and “put [the pistol] down inside [W. L.’s] coat pocket [and] took off.” W. L. also testified that A. B. had another “gun” with him as he observed A. B. carrying a “snub nose . . . 38 or. 37 [pistol in] the back of his pants” during the morning of February 17, 1989. This evidence, when viewed in the light most favorable to the adjudication, authorized the finding beyond a reasonable doubt that A. B. committed the delinquent act of carrying a concealed weapon about his person in violation of OCGA § 16-11-126 (a). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); In the Interest of J. G., 188 Ga. App. 856, 857 (374 SE2d 796). Further, evidence showing that A. B. was carrying a weapon and that he was under 21 years of age authorized the-finding, beyond a reasonable doubt, that A. B. committed the delinquent act of carrying a pistol without a license in violation of OCGA § 16-11-128 (a). Jackson v. Virginia, supra. See OCGA § 16-11-129 (b) (1).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.

W. Donald Kelly, for appellant.

John M. Ott, District Attorney, W. Kendall Wynne, Jr., Assistant District Attorney, for appellee.


text:
    A89A2101.
    CEARLEY v. THE STATE.
    (388 SE2d 751)
   McMurray, Presiding Judge.

Defendant was charged via accusation with obstructing a public road and highway, OCGA § 16-11-43. The case was tried before a jury, but a transcript of the evidence was not prepared. Instead, the parties stipulated and the trial court approved the following statement of facts:

“Harold Jones, Charles Totherow, Neal Rusk and George Upchurch each testified that on the 15th day of February, 1989, while traveling on Mulkey Gap Road, in Union County, Georgia, they encountered debris in the road which made the road impassable without unreasonable inconvenience or hazard. Witness Jones testified that he contacted the county commissioner’s office and reported the obstruction.

“State’s witness, Commissioner Glen Gooch, testified that he contacted the Union County Sheriff’s Department to have a peace officer go to the scene and if necessary, to request the offending party to remove the obstruction.

“Deputy Charles Long testified that he was asked by Commissioner Gooch to go to the scene where he observed the debris which was obstructing the free flow of traffic on Mulkey Gap Road and that he requested the defendant to remove the debris on the request of Commissioner Gooch and that the defendant replied, T aint no d— janitor and if Gooch wants it moved he can come out here with a broom and remove it himself.’ Deputy Long returned to the Commissioner’s office and reported the defendant’s comments and refusal to remove the debris, whereupon, Commissioner Gooch obtained a warrant for the defendant’s arrest. Deputy Long, accompanied by Deputy Robert Kern, returned to the scene and executed the warrant, placing the defendant under arrest. . . .

“The State’s witnesses, Jones, Totherow, Rusk, Upchurch and Long testified that they observed car crushing equipment on property on which the defendant stored motor vehicles. Each of them testified that they did not observe the defendant place or cause to be placed any debris or obstructions in the road, that to their knowledge the defendant did not own the car-crushing equipment, and that they did not know who was crushing the cars. Witness Jones testified that he was aware of the defendant’s junk car business over a long period of time and that the only time he observed debris in the road was during periods of car crushing activity.

“Neither of the State’s witnesses could testify that he ever witnessed the defendant himself obstructing the road.

“Witnesses for the defense, defendant T. J. Cearley and Ronnie Brown, testified that they each owned some of the junk vehicles which were stored on the property under defendant’s control until such time as they accumulated enough vehicles to sell to a car crushing business. Each of them testified that on this and other occasions, they had sold their junk car inventory to a Mr. Earl McNeese, owner and operator of McNeese Auto Crushing, an Alabama business, that Mr. McNeese purchased all the vehicles as a lot and that once Mr. McNeese purchased the vehicles they had no other control over them. They testified that it was solely their storage place to the crusher site, to crush and remove the vehicles, that although the crusher was set up and operated on property under the defendant’s control, neither the defendant nor Mr. Brown did or could exercise any control over the crushing operation, that they did not obstruct or cause to be obstructed any public road or highway.”

Defendant was found guilty of the offense charged, and now appeals. Held:

1. Defendant first challenges the sufficiency of the evidence.

“It is not enough that the evidence relied upon [by the State to support defendant’s conviction] is sufficient to raise a suspicion of guilt. Mathis v. State, 10 Ga. App. 77 (72 SE 526).” Banks v. State, 132 Ga. App. 809, 810 (209 SE2d 252). The evidence, when viewed in a light most favorable to the prosecution, must show that defendant is guilty, beyond a reasonable doubt, of the crime charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

In the case sub judice, there is no question that the State proved, beyond a reasonable doubt, that there was an obstruction on a public road and that the obstruction was in front of property that was controlled by defendant. However, there is not even circumstantial evidence indicating that the obstruction was placed in the roadway by defendant or that the obstruction was the result of activities emanating from property that was subject to defendant’s control. In fact, defendant testified that he “did not obstruct or cause to be obstructed any public road or roadway.” Under these circumstances, we find that the State failed to prove its case. Consequently, defendant’s conviction for obstructing a public roadway must be reversed. See OCGA § 16-11-43.

2. It is unnecessary to address defendant’s remaining enumeration.

Judgment reversed.

Carley, C. J., and Beasley, J., concur.

Decided November 22, 1989.

Claude S. Beck, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.


text:
    A89A2109.
    WEBSTER v. SENSORMATIC ELECTRONIC CORPORATION.
    (389 SE2d 15)
   McMurray, Presiding Judge.

Plaintiff Sensormatic Electronic Corporation sold and defendant Webster d/b/a Levigate purchased certain “article surveillance equipment” (anti-shoplifting security devices) under a contract which provided for payment in 60 monthly installments. Only approximately seven monthly installments were ever paid and this action to recover the balance due under the contract was filed. Defendant Webster answered and counterclaimed for shoplifting losses allegedly caused by defects in the workmanship of the security devices purchased from plaintiff. By amendment to plaintiff’s complaint, Henrich Enterprises, Inc., was added as a party defendant.

At the close of all the evidence, the trial court granted plaintiff’s motion for directed verdict on defendant Webster’s counterclaim. The jury returned a verdict in favor of plaintiff and against defendant Webster d/b/a Levigate only. Defendant Webster appeals, enumerating as error the direction of the verdict on his counterclaim in favor of plaintiff and the trial court’s failure to give certain requested charges to the jury. Held:

Defendant Webster argues that the trial court erroneously concluded that the contract excluded or modified the statutory implied warranty of fitness. The contract includes a provision that: “THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.” This language is printed in type which is bolder and larger than that generally used in the document, and is further emphasized by the capitalization and by being within a dark bordered rectangle. This language from the written contract is sufficiently conspicuous to satisfy the requirements of OCGA § 11-2-316 (2). Chrysler Corp. v. Wilson Plumbing Co., 132 Ga. App. 435, 437 (1) (208 SE2d 321).

The contract also contains a disclaimer of consequential damages which is not conspicuously printed or distinguished from the remainder of the contract. However, OCGA § 11-2-719 which explicitly permits the exclusion of consequential damages does not impose any requirement, of a conspicuous writing, analogous to that of OCGA § 11-2-316 (2).

Decided November 22, 1989.

Morris & Webster, Craig A. Webster, for appellant.

Ackerman, Woodard & Butler, Jeffrey M. Butler, Robert J. Mc-Cune, for appellee.

Defendant Webster’s reliance on Redfern Meats v. Hertz Corp., 134 Ga. App. 381 (215 SE2d 10), in which there was no compliance with former Code Ann. § 109A-2-316 (2), now OCGA § 11-2-316 (2), is misplaced. Since there was an effective disclaimer of implied warranties the only warranties under the contract in the case sub judice are those expressly stated.

Our decision in Century Dodge v. Mobley, 155 Ga. App. 712 (2), 713 (272 SE2d 502), is not applicable to the case sub judice. In Century Dodge we held that it is unreasonable to allow express warranties to be negated by a disclaimer in the same contract. While defendant Webster would incorporate, into the contract, statements from the sales brochures of the plaintiff, the written contract by its terms constitutes the entire agreement between the parties and contains no express warranty relevant to defendant Webster’s counterclaim. See also OCGA § 11-2-202.

There is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shows that the statutory implied warranty upon which defendant Webster relies was excluded under the terms of the contract. The evidence therefore demands a verdict in favor of plaintiff on defendant Webster’s counterclaim. Therefore, the trial court did not err in granting plaintiff’s motion for directed verdict on the counterclaim. Tsilimos v. NAACP, 187 Ga. App. 554 (370 SE2d 816); Carpenter v. Parsons, 186 Ga. App. 3, 4 (2) (366 SE2d 367).

The remaining enumerations of error, which concern the trial court’s refusal to give requested charges, are predicated upon the supposition that the trial court erred in directing the verdict on defendant Webster’s counterclaim in favor of plaintiff. As the underlying supposition is incorrect, nothing is presented for review by the remaining enumerations of error.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


author: Deen, Presiding Judge.

text:
    A89A2280.
    HUGHES & PEDEN, INC. v. BUDD CONTRACTING COMPANY, INC.
    (388 SE2d 753)
   Deen, Presiding Judge.

Appellant seeks review of a superior court order denying a motion for confirmation of an arbitration award and granting an opposing motion to vacate the arbitration award. This dispute arose from a construction contract dated April 10, 1987, and is therefore governed regarding arbitration by OCGA § 9-9-80 et seq.

Subcontractor Budd Contracting Company, Inc. (Budd), filed a demand for arbitration, seeking from contractor Hughes & Peden, Inc. (Hughes), an unpaid contract balance, attorney fees, and litigation expenses. Hughes answered the arbitration demand, denying any indebtedness, and counterclaimed for excess completion costs, attorney fees, and litigation costs. Subsequently, Budd filed the case sub judice in the Superior Court of DeKalb County, alleging the same facts and contentions as in its arbitration demand. Hughes again answered, denying any indebtedness. By consent order litigation was stayed until completion of the arbitration.

The arbitrator’s award was entered in favor of Hughes on all issues. Subsequently, in response to a request by Budd concerning whether attorney fees were awarded, the arbitrator affirmed his earlier award, stating that attorney fees were included in the award. Thereafter, Budd filed a motion to vacate the arbitrator’s award, while Hughes filed a motion to affirm the award. The trial court entered an order requiring the arbitrator to specify the constituent elements of his original award of October 19, 1988. The arbitrator complied by issuing a third confirmation of the award, and the opposing parties made motions to vacate and confirm the third version of the award. This appeal is from the trial court’s ruling on these motions in regard to the third version of the award. Enumerated as error aré certain rulings regarding the validity of the March 14, 1989, award; the applicability of certain statutes to the facts of the instant case; and the interpretation of those statutes when applied to the instant case. Held:

Regardless of whatever inconsistencies and ambiguities exist in the procession of awards by the arbitrator, it is clear that the arbitrator’s award of $6,000 attorney fees was a violation of OCGA § 9-9-97, which the superior court interprets as prohibiting the award of attorney fees except when the arbitration agreement provides otherwise. We find no mention of attorney fees in the agreement sub judice. Our reading of this Code section is stricter than that of the trial court and would forbid the award of attorney fees regardless of what the agreement might provide.

Under either interpretation, however, the award in the case sub judice was not authorized, the arbitrator having predicated the award on, consents supposedly arising from briefs of the parties which are not a part of the record before us; and, the arbitrator having imperfectly executed the award, vacating it was proper under OCGA § 9-9-93 (b) (3). Appellant’s suggestion that the superior court should have merely modified the award under OCGA § 9-9-94 (b) is ill-founded, since none of the three circumstances in which modification is appropriate is shown to exist in the case sub judice.

Decided November 22, 1989.

Mark W. Crouch, for appellant.

Griffin, Cochrane, Marshall & Eiger, Lee C. Davis, Drew, Eckl & Farnham, T. Bart Gary, for appellee.

After reviewing both the complex facts of this case and the applicable law, we find no error in any of the challenged rulings of the trial court, and consequently no merit in any of appellant’s enumerations.

judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Pope, Judge.

text:
    A89A1459.
    BIRD v. WEIS BROADCASTING CORPORATION.
    (388 SE2d 710)
   Pope, Judge.

Plaintiff Chris Bird operates a vehicle towing service in Savannah. The record shows that during the summer of 1986 the towing of automobiles from privately or publicly owned property was an issue of public discussion and debate and a topic of reporting and commentary in the Savannah news media. Between August 4 and August 8 a disc jockey employed by defendant WEIS Broadcasting Corporation played a recording of a song he wrote and performed during radio broadcasts. The title of the song was “Look at All Those Tow Trucks” and it was sung to the tune of a song popular at the radio station at the time. Although the song referred to tow trucks in general, it referred to plaintiff’s towing service by name. Included in the lyrics were the following comments: “[I]t’s like havin’ a license to rob.” “[I]f these guys weren’t towing cars, they’d be politicians.” “[T]hey so bad they even make my preacher want to cuss.” “[I]t really wouldn’t anger me, I wouldn’t have much to say, if only my car hadn’t been parked in my driveway.” At the end of the song the singer shouted over the closing music: “Hey, you can’t do that . . . that’s against the law, that’s breaking the law.”

Plaintiff Bird filed suit against defendant WEIS and, following a jury trial, was awarded judgment in his favor for $25,000 general damages and $5,000 punitive damages. The trial judge granted defendant’s motion for judgment notwithstanding the verdict and plaintiff appeals.

1. We agree with the trial court’s finding that the comments in the lyrics of the song were either substantially true or were merely rhetorical hyperbole and therefore an expression of opinion. Both truthful facts and opinion are protected speech. Therefore, the broadcast of the song was not actionable.

Plaintiff did not dispute that his business had towed cars from the locations mentioned in the song and that he charged the stated amount of money. The reference to the towing of a car from the singer’s own driveway was merely humorous hyberbole and could not reasonably be interpreted as a factual representation. Moreover, plaintiff admitted that he had mistakenly towed the cars of tenants who lived above the business of one of the clients who hired him to tow cars from a place of business. As defendant argues, this is comparable to towing a car from its owner’s driveway. The reference at the end of the song to “breaking the law” was also supported by evidence presented at trial. The Parking Services Administrator for the City of Savannah testified that some of plaintiff’s signs were posted improperly in violation of city ordinance and that he had received complaints that plaintiff towed cars from unbarricaded lots in violation of state law. Because the facts contained in the song were substantially true, defendant was entitled to judgment in its favor as a matter of law. See Simpson v. Times-Journal, 170 Ga. App. 175 (1) (316 SE2d 795) (1984); Jones v. Neighbor Newspapers, 142 Ga. App. 365 (2) (236 SE2d 23) (1977).

The remaining content of the song was merely an expression of opinion about the practices and motivation of individuals involved in the automobile towing business, “ ‘matters with respect to which reasonable men might entertain differing opinions’ [Cit.]” and is therefore not libelous. See Bergen v. Martindale-Hubbell, Inc., 176 Ga. App. 745, 747 (337 SE2d 770) (1985).

2. Plaintiff urges that the trial court erred in basing its judgment notwithstanding the verdict in part upon a finding that plaintiff had failed to prove negligence because, plaintiff argues, sufficient evidence was presented to show the defamacast was an intentional tort. However, truth is a “perfect defense” to a defamation action and once the truth of the statement in issue is established then malice or intent is not an issue and a verdict for the defendant is demanded. Savannah News-Press v. Hartridge, 110 Ga. App. 203 (2) (138 SE2d 173) (1964). Those portions of the song which were expressions of opinion are constitutionally privileged. Privileged opinion cannot support a claim even for an intentional tort. See Ault v. Hustler Magazine, 860 F2d 877 (9th Cir. 1988), cert. denied, 109 SC 1532 (1988). Thus, we need not address plaintiff’s remaining enumerations of error regarding proof of negligence.

Decided November 6, 1989

Rehearing denied November 27, 1989

Downing, McAleer & Gaskin, James E. McAleer, D. Ray Gaskin, Mark H. Johnson, Thomas E. Maddox, Jr., for appellant.

Stanley M. Karsman, Sharie S. Miltiades, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1512.
    WILLIS v. THE STATE.
    (388 SE2d 869)
   Pope, Judge.

Defendant Fred Willis appeals his convictions on two counts of violation of the Georgia Controlled Substances Act for selling cocaine to an undercover officer. We affirm.

1. Defendant first argues the trial court erred in denying his motion for continuance so that he could interview and subpoena the individual who was not identified to defendant’s counsel as an informant until the day the trial commenced, despite the fact that defendant had timely filed a motion requesting the identity of informers. However, this was not a case involving an unknown informant. By defendant’s own testimony at trial defendant was aware that the informant was present at the first of the two transactions between defendant and the undercover agent. Since defendant already knew the identity of the informant and that he was an eyewitness to the transaction, defendant had the opportunity to interview the witness and secure his testimony at trial even before the informant’s name was provided by the prosecutor. “A continuance requested by the defendant in order to obtain the presence at trial of a material witness is properly denied if the defendant has not been diligent in attempting to procure the attendance of the absent witness.” Burney v. State, 244 Ga. 33, 40 (257 SE2d 543), cert. denied, 444 U. S. 970 (1979).

2. Appellant argues that one of the two exhibits containing cocaine, and the testimony concerning the chemical analysis of that substance, was improperly admitted into evidence because the State failed to establish a proper chain of custody for the evidence. The undercover officer testified that immediately after the purchase on March 21, 1984, she took the package of suspected cocaine from the informant’s hand and placed it in a plastic bag together with an evidence tag. She kept the evidence in her possession until she turned it over to another agent on March 23 when she saw him at a training session. Although there was conflicting testimony as to the location where the two agents met for the transfer of evidence, it is uncontradicted that the transfer took place. The second agent testified he kept the evidence locked in a safe at the Region II Office of the GBI until he personally delivered the evidence to the Macon Branch of the State Crime Lab for analysis. The chemist who performed the chemical analysis testified the lab records showed the evidence was shipped to the Macon Crime Lab via certified mail. We reject defendant’s argument that the discrepancy in testimony concerning how the evidence was transported to the Crime Lab is sufficient to exclude the evidence at trial. No suggestion of tampering was presented at trial. “Where chain of custody is involved the identity of the evidence need not be proved beyond all possibility of doubt, or that all possibility of tampering with [it] be excluded. The circumstances need only establish a reasonable assurance of the identity.” Dempsey v. State, 162 Ga. App. 390, 392 (291 SE2d 449) (1982). “It is not necessary that the state negative all possibility of tampering but only that it show it is reasonably certain there was no alteration — when there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to its weight.” (Citations and punctuation omitted.) Law v. State, 165 Ga. App. 687, 691-692 (302 SE2d 570) (1983) (where the evidence bag containing cocaine was sent from one crime lab to another via United Parcel Service).

3. On rebuttal one of the investigators in the case testified that he commenced the investigation of defendant in response to information received from the informant and also testified to a conversation between defendant and the informant which the investigator overheard through audio equipment worn and concealed by the informant. Defendant did not object to the testimony concerning the informant’s statements to the investigator, which were presented to explain how and why the investigation was commenced. The trial court properly overruled defendant’s objection, on the ground of hearsay, to testimony concerning the overheard conversation. Testimony concerning a conversation which took place in the defendant’s presence is not hearsay and the defendant’s right to cross-examination is not jeopardized. Hewitt v. State, 127 Ga. App. 180 (2) (193 SE2d 47) (1972). The interception of a conversation by a law enforcement officer is not illegal where at least one party to the conversation consents thereto and the conversation is in furtherance of a crime. Goodwin v. State, 154 Ga. App. 46 (1a) (267 SE2d 488) (1980). The testimony concerning the conversation shows it involved the sale of cocaine by defendant to the informant. We reject defendant’s argument that no evidence was presented to show the informant consented to the interception. The informant’s consent is implied by the fact that he permitted the officer to place a “body bug” on him. Id. at (1b).

Decided November 9, 1989

Rehearing denied November 27, 1989

Virgil L. Brown & Associates, Virgil L. Brown, for appellant.

W. Fletcher Sams, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

4. The testimony concerning information gleaned by use of a “body bug” on the informant related to a previous incident involving a sale of drugs by the defendant to the informant for which defendant was not indicted or tried. Defendant argues the court erred in allowing the state to introduce testimony concerning this previous incident because the state did not comply with the requirements of Uniform Superior Court Rule 31.1 by disclosing prior to trial its intent to present evidence of a similar transaction. However, the record shows this testimony was offered on rebuttal to impeach the defendant’s testimony that he had never sold drugs to anyone. The rule requiring prior disclosure of the State’s intent to introduce evidence of a similar transaction in a criminal trial does not prevent the state from offering such evidence for impeachment purposes. Uniform Superior Court Rule 31.3 (E). See Sidwell v. State, 185 Ga. App. 138 (1) (363 SE2d 603) (1987); Thomas v. State, 184 Ga. App. 318 (5) (361 SE2d 280) (1987); Nelson v. State, 184 Ga. App. 84 (3) (360 SE2d 749) (1987).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Carley, Chief Judge.

text:
    A89A1540.
    OWENS v. THE STATE.
    (388 SE2d 712)
   Carley, Chief Judge.

Appellant and a co-defendant were jointly tried before a jury and both were found guilty of trafficking in cocaine. Separate notices of appeal were filed. In Allen v. State, 193 Ga. App. 16 (_SE2d _) (1989), we affirmed the co-defendant’s conviction and sentence and, in the present case, we now address appellant’s appeal from the judgment of conviction and sentence entered against him.

1. Appellant’s enumeration of the denial of his motion to suppress as erroneous is controlled by Allen v. State, supra at 16 (1) and is without merit.

2. The general grounds are enumerated. The contention is that, insofar as the evidence showed the co-defendant’s equal access to the cocaine, it was insufficient to authorize a finding of appellant’s knowing actual possession of that contraband.

In Allen v. State, supra at 17 (2), we held that the “evidence authorized the jury to find, beyond a reasonable doubt, that [the co-defendant] was in knowing possession of the cocaine either individually or jointly. [Cits.]” (Emphasis supplied.) The evidence likewise authorized the identical finding as against appellant. Accordingly, the evidence was sufficient. See also Dukes v. State, 186 Ga. App. 815 (369 SE2d 259) (1988); McIntosh v. State, 185 Ga. App. 612, 615 (5) (365 SE2d 464) (1988).

Decided November 6, 1989

Rehearing denied November 27, 1989.

Bates, Kelehear & Starr, Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, for appellee.

3. Appellant enumerates as error the trial court’s admission into evidence of an in-custody statement made by the co-defendant.

The co-defendant did not testify at the joint trial. Under Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) [(1968)], “ ‘[t]he law is clear that evidence of the confession of a co-defendant implicating a defendant cannot be admitted against that defendant at a joint trial where the co-defendant does not take the stand and is not available for cross-examination. [Cits.]’ ” (Emphasis supplied.) Hall v. State, 161 Ga. App. 521, 522 (1) (289 SE2d 313) (1982). “For the admission of a co-defendant’s statements to constitute a Bruton violation, however, the statements standing alone must clearly inculpate the defendant. [Cits.]” (Emphasis supplied.) United States v. De Parias, 805 F2d 1447, 1455 (8) (11th Cir. 1986). Since the record shows that the co-defendant’s statement, standing alone, was not inculpatory of appellant, it follows that the trial court did not err in admitting that statement into evidence.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Sognier, Judge.

text:
    A89A1600.
    BRAKE et al. v. MINTZ et al.
    (388 SE2d 715)
   Sognier, Judge.

Tina L. Brake and Melvin D. Brake brought a medical malpractice suit against Stephen M. Mintz, M.D., and others, who in turn filed counterclaims against the Brakes. The trial court granted the defendants’ motion to dismiss, the Brakes obtained a certificate of immediate review, and we granted their application for interlocutory review.

Appellants sued appellees alleging their negligence in failing to remove a gauze pad from appellant Tina Brake’s body after the birth of her child. Pursuant to OCGA § 9-11-9.1 (b), appellants alleged in their complaint that an affidavit of an expert could not be prepared due to the running of the statute of limitation and exercised their right under that statute to have 45 days to supplement the pleadings with the expert’s affidavit required under OCGA § 9-11-9.1 (a). On November 9, 1988 (42 days after filing their complaint), appellants moved for a sixteen-day extension, giving as their reason the fact that they had been “without the necessary funds to secure the necessary evaluation and affidavit but now [have] the financial resources to secure said evaluation and [they expect] on or before November 28, 1988 receipt of the affidavit.”

A rule nisi was issued on November 22, 1988 for a hearing on appellants’ motion, which was set for December 22, 1988. The next day, November 23, 1988, appellants filed another motion which they denominated an “amended motion for additional fourteen days in which to file physician’s affidavit.” The reason set forth in the motion for the requested extension was that the medical expert had notified appellants that because the expert would be out of town for the Thanksgiving holiday, the affidavit as originally promised by the deadline would not be provided until after that holiday. An expert’s affidavit was filed by appellants on December 9, 1988.

After appellants filed their two motions for extensions of time, appellees brought a motion to dismiss appellants’ complaint made on the bases that no expert’s affidavit was attached to appellants’ complaint; the complaint was not supplemented with the affidavit 45 days thereafter; and no order to extend the time within which appellants might file the affidavit was entered prior to the expiration of the 45 days. Appellants take exception to the trial court’s rulings on the various motions, contending the trial court improperly denied their motions for extensions of time to file an expert’s affidavit and that therefore the trial court’s grant of appellees’ motion to dismiss for failure to file the required affidavit was error.

The trial court denied appellants’ motions for extension on two bases: appellants’ failure to expedite the hearing on their motions pursuant to Uniform Superior Court Rule 6.7 and appellants’ failure to show “good cause” under OCGA § 9-11-9.1 (b). While we agree that it is the responsibility of the party seeking a motion, not the trial court, to obtain expeditiously a ruling on the motion, we need not determine here what import the trial judge’s signature on the rule nisi had on appellants’ responsibility to expedite their motion because we affirm the trial court’s order on the alternate basis presented in that order.

OCGA § 9-11-9.1 (b), after authorizing an additional 45 days for a plaintiff unable to file the required expert’s affidavit due to statute of limitation time constraints, provides that “[t]he trial court may, on motion, after hearing and for good cause extend such time as it shall determine justice requires.” The trial court held that appellants failed to demonstrate the “good cause” required under OCGA § 9-11-9.1 (b) for an extension of time, specifically finding that appellants, in their motions asserting inadequate funds and their expert’s departure for the Thanksgiving holiday, did not provide a detailed showing of the efforts they had made to obtain the expert’s affidavit and the unavoidable reasons for the delay.

“Good cause” as a standard has been applied or defined in numerous situations: from discovery matters such as under OCGA § 9-11-35 (a) (standard to support an order by the trial court for the physical or mental examination of a party), see Crider v. Sneider, 243 Ga. 642, 644-646 (1) (256 SE2d 335) (1979), to confirmation of sales under OCGA § 44-14-161 (as required to order resale of property), see Five Dee Ranch Corp. v. Fed. Land Bank, 148 Ga. App. 734, 735-736 (252 SE2d 662) (1979). However, we have not found these specific applications of “good cause” helpful in determining its application under OCGA § 9-11-9.1 (b).

Appellants argue that OCGA § 9-11-9.1 (b) must be construed together with OCGA § 9-11-6 (b), and that OCGA § 9-11-6 (b) establishes the standard the trial court erroneously failed to apply. We note that reference to “good cause” has been made in relation to a trial court’s grant of an extension of time pursuant to OCGA § 9-11-6 (b). See Phillips v. Old Republic Life Ins. Co., 155 Ga. App. 537, 538 (1) (271 SE2d 676) (1980). Section 6 (b) of the Civil Practice Act provides that “the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period [of time within which an act is required to be done] extended if request therefor is made before the expiration of the period originally prescribed . . . or (2) upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect . . . .” (Emphasis supplied.) Appellants argue that their first motion, made prior to the expiration of the 45 days allowed by OCGA § 9-11-9.1 (b), should have been granted under the standard of “for cause shown” under OCGA § 9-11-6 (b), and that their second motion, although filed outside of the 45-day time period, should likewise be reviewed under the “for cause shown” standard because it was an amendment to their earlier motion and thus “related back” to that motion under OCGA § 9-11-15 (c).

We do not agree with appellants that OCGA § 9-11-6 (b) is applicable here. OCGA § 9-11-9.1 is a subsequently enacted statute which by its terms does not distinguish between motions made within or made without the 45-day extension period. It merely provides that “on motion, after hearing and for good cause” the filing period may be extended for whatever length of time the trial court determines justice requires. We read “for good cause” in § 9.1 (b) to establish a higher standard than that in § 6 (b) of “for cause shown” because the cause shown must be “good” for § 9.1 (b). We do not find that these two provisions conflict (although, if conflict exists, § 9.1 (b) as the latter, and therefore true, expression of the legislature would prevail, see Stansell v. Fowler, 113 Ga. App. 377, 380 (147 SE2d 793) (1966)), but rather read OCGA § 9-11-9.1 (b) as carving out one limited exception to the application of OCGA § 9-11-6 (b).

For the same reason that we find the “for cause shown” standard in OCGA § 9-11-6 (b) inapplicable to OCGA § 9-11-9.1 (b), we reject the argument that the trial court should apply in essence an “excusable neglect” standard under OCGA § 9-11-6 (b) to a motion to extend the time for filing an expert’s affidavit under OCGA § 9-11-9.1 (b). While we find persuasive the argument that “good cause” is the converse of “excusable neglect,” a standard both in OCGA § 9-11-6 (b) (for motions made outside the applicable time period, see Phillips, supra) and in OCGA § 9-11-55 (b) (for certain motions to open default), we construe “good cause” in § 9.1 (b) to be closer in effect to “proper case,” a standard under § 55 (b), or “meritorious cause,” the standard for a trial court in setting aside a judgment within the term of court. See Holcomb v. Trax, Inc., 138 Ga. App. 105 (225 SE2d 468) (1976). The reason for this construction is that “excusable neglect” has been held to vest less discretion in the trial court than a standard such as “proper case” under OCGA § 9-11-55 (b). See Houston v. Lowes of Savannah, 136 Ga. App. 781, 782 (1) (222 SE2d 209) (1975); Lanier v. Foster, 133 Ga. App. 149, 153 (3) (210 SE2d 326) (1974). Since statutes are presumed to be enacted with the Legislature’s full knowledge of existing law, including decisions of the courts, Leonard v. Benjamin, 253 Ga. 718, 719 (324 SE2d 185) (1985), we must conclude that the Legislature intended to vest more discretion in the trial court by setting forth the standard of “good cause” in OCGA § 9-11-9.1 because it did not utilize phrases such as “excusable neglect” or “providential cause,” see OCGA § 9-11-55 (b), which establishes a more restrictive standard.

While broad discretion is vested in the trial court when determining whether “good cause” exists, the issue here is whether discretion also rests with the trial court to determine what constitutes “good cause.” We find support for our holding that this matter is also within the trial court’s discretion in cases such as Holcomb, supra at 107, and P. H. L. Dev. Corp. v. Smith, 174 Ga. App. 328-329 (1) (329 SE2d 545) (1985), in which we found that the “right to determine ‘meritorious cause’ is also addressed to the sound discretion of the judge, and we will not reverse his decision unless such discretion is manifestly abused. [Cit.]” Holcomb, supra at 107.

Applying that standard of review to the case sub judice, we find no manifest abuse of the trial court’s discretion in determining that appellants failed to demonstrate “good cause” for the grant of their motions to extend the time for filing their expert’s affidavit. The trial court noted the absence of a detailed showing of appellants’ efforts to obtain the affidavit and the absence of a showing of unavoidable reasons why the affidavit was not obtained. Even assuming the trial court’s conclusion was not based in part on matters presented during the motion on the hearing (no transcript of that hearing having been submitted to this court), our review of the record alone supports the trial court’s reference to the sparsity of appellants’ evidence demonstrating the meritorious reason why appellants were unable to obtain timely an expert’s affidavit and to the absence of any explanation detailing why appellants could not have avoided the delay occasioned by their expert’s holiday plans.

Regardless of the presence or absence of “good cause,” appellants argue that the trial court’s order should be reversed because appellees suffered no harm as a result of their late filing. First, we do not agree with appellants that the fact appellees may not have been hurt by appellants’ inaction can alone authorize excusing appellants’ otherwise unjustifiable failure to act. Second, our review of the trial court’s order convinces us that the trial court did not act without consideration of the merits of the suit when it ruled on the parties’ motions, but found the merits insufficient to offset appellants’ disregard of OCGA § 9-11-9.1. Finally, we note that the very language of OCGA § 9-11-9.1 demonstrates how a defendant can be harmed by a plaintiff’s failure to follow the procedure set forth in OCGA § 9-11-9.1 (b) in that under OCGA § 9-11-9.1 (c), the defendant need not answer the complaint until 30 days after the filing of the affidavit. Where the plaintiff fails to file the affidavit within the 45-day period or fails to obtain a ruling on a motion to extend that period, the defendant is left in a state of uncertainty regarding when to file an answer or even whether filing an answer will be necessary. We do not agree with appellants that it is proper or fair to leave a defendant dangling for an indeterminable period after a plaintiff files a complaint alleging professional malpractice before the defendant can adequately answer the negligent act or omission claimed to exist.

Appellants also argue that because they have alleged a colorable claim against appellees, as opposed to a frivolous claim, as a matter of “substantial justice” under OCGA § 9-11-8 (f) we should disregard appellants’ failure to comply with OCGA § 9-11-9.1 (b) and reverse the trial court’s ruling in order to allow the merits of their suit to be reached. However, we have noted that when the Legislature enacted OCGA § 9-11-9.1, it established “an ‘exception to the general liberality of pleading permitted under (the Civil Practice Act, OCGA § 9-11-1 et seq.),’ [cit.], by requiring when a malpractice suit is instituted that along with the complaint an affidavit be filed by a competent expert witness setting forth a single negligent act allegedly committed by the defendant.” 0-1 Drs. Mem. Holding Co. v. Moore, 190 Ga. App. 286, 288 (1) (378 SE2d 708) (1989). The Legislature, in its wisdom, enacted procedural standards stricter for plaintiffs in professional malpractice suits than for plaintiffs in other suits. Appellants failed to comply with those procedural steps and the trial court, exercising the discretion granted it by the Legislature, determined that appellants failed to show the “good cause” necessary to authorize extending the strict statutory time limitations. Since this court will not interfere with the discretion of the trial court in finding the absence of “good cause” and denying a motion to extend the time for filing an expert’s affidavit absent manifest abuse, and we find no such abuse here, accordingly the trial court did not err by denying appellants’ motions and granting appellees’ motion to dismiss.

Decided November 8, 1989

Rehearing denied November 27, 1989

Dennis B. Dixon, Jr., for appellants.

Long, Weinberg, Ansley &' Wheeler, Marvin A. Devlin, Ronald R. Coleman, Jr., Joseph W. Watkins, for appellees.

We note that because appellants did not have an expert’s affidavit at the time they filed their complaint, nor did they supplement their pleadings with such an affidavit within 45 days thereafter under OCGA § 9-11-9.1 (b), and the trial court did not abuse its discretion by denying appellants’ motions to extend the filing date until December 12, 1988, it follows that although appellants’ expert’s affidavit was filed December 9,1988, there was no “amendable defect” here and St. Joseph’s Hosp. v. Nease, 259 Ga. 153 (377 SE2d 847) (1989) is thus inapplicable.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    A89A1769.
    McCRIEF v. THE STATE.
    (388 SE2d 859)
   Banke, Presiding Judge.

The appellant brings this appeal from his conviction of trafficking in cocaine.

Trooper Ogden of the Georgia State Patrol stopped the appellant for traveling 69 miles per hour in a 65-mile-per-hour zone. He asked the appellant to step to the rear of his vehicle and produce his driver’s license and registration, and in response the appellant produced a South Carolina driver’s license and rental agreement. The trooper then explained the reason for the stop and issued a courtesy warning ticket. At this time, the appellant volunteered that his girl friend in South Carolina had rented the car for him, that he had left Charleston 14 hours earlier to drive to Tampa to visit another girl friend, and that he was now on his way back to Charleston. Finding this story somewhat implausible, the trooper became suspicious and asked the appellant if he had any objection to opening the trunk of his car. The appellant consented, and the trooper opened the trunk but found only a suitcase and various items of clothing inside.

According to the trooper, the appellant appeared to become “nervous and more upset” as these events transpired and began moving his hands in and out of his pockets. The trooper cautioned him to stop reaching into his pockets, but the appellant continued to move his hands in this direction. Fearing that the appellant might be in possession of a weapon, the trooper therefore asked him to consent to a pat-down search. The appellant responded, “You’re not touching me,” at which point the trooper radioed for a back-up unit to assist him. Upon hearing this request for assistance, the appellant changed his mind and consented to the search. However, when the trooper began patting down the area of his ankle, the appellant grabbed him by the arm, pushed him aside and began fleeing down the shoulder of the interstate. The trooper pursued him on foot and, with the aid of a flashlight, saw him reach down along his ankle, pull out an object and drop it on the ground. The object proved to be a zip-lock bag containing approximately 109 grams of cocaine. Held:

1. The appellant contends that the trial court erred in denying his motion to suppress the contraband, asserting that his conduct in fleeing amounted to a withdrawal of his consent to the pat-down search and that the officer’s conduct in pursuing him amounted to an unlawful arrest. There is no merit to this contention. There is no question that the trooper was authorized to detain the appellant for speeding, and the circumstances as they developed warranted a reasonable apprehension on the part of the trooper that the appellant was armed. The trooper was thus authorized under Terry v. Ohio, 392 U. S. 1, 30 (88 SC 1868, 20 LE2d 889) (1968), to conduct a pat-down search “in an attempt to discover weapons which might be used to assault him.” Obviously, when the appellant attempted to push the officer away and flee during the course of the pat-down search, the officer was not required to abandon his investigation but was authorized to apprehend him to maintain the status quo.

2. The appellant contends that the trial court erred in failing to admonish the husband of a juror who was present during the trial not to discuss the evidence with his wife. Contrary to the appellant’s assertions, the transcript reveals that the trial court did in fact obtain assurances from the husband that he would not discuss the evidence with his wife. The court then asked appellant’s counsel if the husband’s responses were satisfactory to him, and the latter replied, “It’s fine with me, Judge.” In any event, the jury reached its verdict on the same day the case was tried, so there was no opportunity for the couple to communicate before the verdict was returned. Consequently, this enumeration of error is without merit.

Decided November 8, 1989

Rehearing denied November 27, 1989

Lloyd E. Thompson, Jr., for appellant.

Glenn Thomas, Jr., District Attorney, Christopher A. Frazier, Assistant District Attorney, for appellee.

3. The appellant contends that the trial court erred in charging the jury on the law regarding constructive possession because the offense for which he was on trial required proof of actual possession. At the time of the appellant’s arrest, the offense of trafficking in cocaine was committed by “[a]ny person who ... is knowingly in actual possession of 28 grams or more of cocaine. . . .” OCGA § 16-13-31 (a) (1). The statute was amended effective January 1, 1989, to delete the actual possession requirement. Although this revision clearly did not have retroactive effect, the trial court instructed the jury as follows: “[I]t is necessary that the state prove beyond a reasonable doubt that the defendant was in possession as defined by this court of at least 28 grams of cocaine. . . . The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.”

While the charge on constructive possession should not have been given under the circumstances, we find that the error was harmless since the only possible form of possession of which the appellant could have been found guilty under the evidence was actual possession. “[Therefore, . . . although the charge on constructive possession may have been inapplicable, it was mere surplusage. ‘(A)n erroneous charge touching a theory not in issue under the evidence, unless prejudicial and harmful as revealed by the entire record, does not require or demand a reversal. [Cit.]’ ” Raines v. State, 186 Ga. App. 239 (4) (366 SE2d 841) (1988). Compare Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988).

4. The evidence was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offense of trafficking in cocaine. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Carley, Chief Judge. Beasley, Judge,

text:
    A89A0866.
    ALLEN v. THE STATE.
    (388 SE2d 889)
   Carley, Chief Judge.

Appellant was indicted for burglary with intent to commit rape, aggravated child molestation, two counts of aggravated assault, simple battery, criminal trespass, possession of cocaine and recidivism. During plea bargaining, the State apparently offered appellant a sentence of five years to serve. Appellant rejected the offer and was tried before a jury. He was found guilty of simple battery, criminal trespass, possession of cocaine and recidivism and not guilty of the remaining charges. During the sentencing hearing, the trial court stated that imposition of a fifteen-year sentence on the drug count was mandatory. Defense counsel asked “Why . . . five?” and the trial court responded “No.” According to the transcript, defense counsel then made an “unintelligible” comment to which the trial court responded: “Not if you screw around for two or three days after you had a chance.” Appellant was then given a fifteen-year sentence on the drug count, eight years to serve and seven years on probation, and concurrent twelve-month sentences on the remaining counts. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

In his sole enumeration of error, appellant attacks the validity of the sentence imposed on the drug count. Although a fifteen-year sentence would be mandated under the applicable statutory provisions (see OCGA §§ 16-13-30 (c); 17-10-7 (a)), appellant contends that the requirement that he serve eight years of that sentence is “harsher” than the five years that he would have been required to serve had he accepted the State’s plea bargain and that this “harsher” sentence is the unconstitutional result of “judicial vindictiveness.” The above-quoted statement made by the trial court in the sentencing hearing is cited as demonstrating that the sentence to serve eight years was “vindictively” imposed because appellant elected to stand trial for “two or three days” rather than to accept the “chance” offered to him by the plea bargain of serving only five years.

There is some doubt whether the statement made by the trial court during the sentencing hearing is even subject to the construction that is placed upon it by appellant. As noted, the comment of defense counsel which prompted the trial court’s statement is itself “unintelligible” and the record does not demand the conclusion that the “two or three days” to which the trial court referred in its response to that “unintelligible” comment is a reference to appellant’s election to stand trial or that the “chance” to which it also referred is a reference to the plea bargain. However, even assuming that appellant’s interpretation of the trial court’s statement is accurate, it is nevertheless clear that such cases as discuss the unconstitutionality of “vindictive” sentencing deal “with the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction — a situation ‘very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.’ [Cit.]” Bordenkircher v. Hayes, 434 U. S. 357, 362 (IV) (98 SC 663, 54 LE2d 604) (1978). The present case does not involve a demonstrably harsher second sentence imposed upon appellant after a successful attack upon his original conviction. The present case represents appellant’s attack upon his original sentence, and that attack arises in the “very different” context of his receipt of a less lenient sentence than may have been imposed had he not rejected the State’s plea bargain. “A guilty plea may justify leniency, [cit.]; a prosecutor may offer a ‘recommendation of a lenient sentence or a reduction of charges’ as part of the plea bargaining process, [cit.] and we have upheld the prosecutorial practice of threatening a defendant with increased charges if he does not plead guilty, and following through on that threat if the defendant insists on his right to stand trial, [cit.]; we have recognized that the same mutual interests that support the practice of plea bargaining to avoid trial may also be pursued directly by providing for a more lenient sentence if the defendant pleads guilty. [Cit.]” (Emphasis supplied.) Alabama v. Smith, 490 U. S__, _ (109 SC 2201, 104 LE2d 865, 875) (1989).

“While confronting a defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices (is) an inevitable’ and permissible ‘attribute of any legitimate system which tolerates and encourages the negotiation of pleas.’ [Cit.] It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.” (Emphasis supplied.) Bordenkircher v. Hayes, supra at 364 (IV). Accordingly, even assuming that the trial court did impose a “harsher” sentence than it otherwise may have been inclined to impose had appellant accepted the plea bargain, there was no unconstitutional “vindictiveness” in so doing. The trial court was merely “following through” on the inevitable and permissible “threat” which is implicit in any plea bargain situation — that rejection of the plea bargain may diminish or destroy the very rationale for the imposition of a lenient sentence. “ ‘For those who plead (guilty), that fact itself is a consideration in sentencing, a consideration that is not present when one is found guilty by a jury.’ [Cit.] . . . ‘It cannot be said that defendants found guilty by a jury are “penalized” for exercising the right to a jury trial any more than defendants who plead guilty are penalized because they give up the chance of acquittal at trial. In each instance, the defendant faces a multitude of possible outcomes and freely makes his choice. Equal protection does not free those who made a bad assessment of risks or a bad choice from the consequences of their decision.’ [Cit.] Here the underlying reason for the [lenient] sentence — [appellant’s acceptance of the plea bargain] — was eliminated when [that plea bargain was rejected] and [appellant] elected to exercise [his] constitutional right to trial by jury. The Supreme Court has ‘unequivocally recognize(d) the constitutional propriety of extending leniency in exchange for a plea of guilty and of not extending leniency to those who have not demonstrated those attributes on which leniency is based.’ [Cit.] (Emphasis supplied.) Thompson v. State, 154 Ga. App. 704, 709 (5) (269 SE2d 474) (1980).

The Supreme Court of the United States has not held that the Federal Constitution forbids the imposition of a less lenient sentence when a criminal defendant rejects a plea bargain and insists upon his right to trial. A criminal defendant should not be allowed to reject a sentence concession that is offered in return for a guilty plea and then bind the State to that rejected original lenient sentence even though he is later convicted after a trial. To hold otherwise would allow a criminal defendant to go to trial and seek an acquittal knowing that, even if unsuccessful, he would receive a sentence which is no less lenient than that he was originally offered. “[A]fter trial, the factors that may have indicated leniency as consideration for the guilty plea are no longer present.” Alabama v. Smith, supra at 875. Appellant’s “enumeration does no more than attack the constitutionality of plea bargaining and is without merit. [Cits.]” Stroud v. State, 154 Ga. App. 852 (1) (270 SE2d 69) (1980).

Judgment affirmed.

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

Beasley, Judge,

dissenting.

It does not appear whether the State’s offer of a sentence of five years to serve, for all charges, would have been a recommendation or negotiated, but in either event it was rejected by defendant and he went to trial. Counsel asserts that this was because he did not want to plead guilty to the sex offenses, of which he was ultimately acquitted, but this reason was not explained to the trial court when the failed plea bargain was discussed.

Defendant contends that judicial vindictiveness is indicated because of certain comments made by the court during the sentence hearing. The court stated to the prosecuting attorney: “You offered him five. I’d like to give him seven,” and then remarked with reference to defendant: “I don’t think he was anything but coked out of his damn head, just like the jury did.” When defense counsel protested the sentence and sought five years, the court retorted as quoted in the majority opinion. It is argued that this was a clear reference to defendant’s choosing trial rather than pleading guilty.

There is no constitutional deprivation or violation per se arising from a defendant’s being sentenced after trial for a term in excess of the amount he was offered during plea bargaining. Corbitt v. New Jersey, 439 U. S. 212, 218 (99 SC 492, 58 LE2d 466) (1978); Bordenkircher v. Hayes, 434 U. S. 357, 363 (98 SC 663, 54 LE2d 604) (1978). Crapse v. State, 180 Ga. App. 321, 325 (4) (349 SE2d 190) (1986); Tutton v. State, 179 Ga. App. 462, 463 (3) (346 SE2d 898) (1986); Heaton v. State, 175 Ga. App. 735, 736 (7) (334 SE2d 334) (1985); Milner v. State, 159 Ga. App. 887, 889 (285 SE2d 602) (1981); German v. State, 159 Ga. App. 638 (1) (284 SE2d 654) (1981); Bennett v. State, 158 Ga. App. 421, 428 (9) (280 SE2d 429) (1981); Stroud v. State, 154 Ga. App. 852 (1) (270 SE2d 69) (1980). Because the imposition of difficult choices is an inevitable attribute of plea negotiations, fear of the possibility of greater punishment after a trial is a legitimate decisional factor. Bordenkircher, supra; Chaffin v. Stynchcombe, 412 U. S. 17, 29 (93 SC 1977, 36 LE2d 714) (1973); Thompson v. State, 154 Ga. App. 704, 708 (5) (269 SE2d 474) (1980).

Nonetheless, an accused may not be judicially punished for exercising his constitutionally guaranteed right to a jury trial. Alabama v. Smith, 490 U. S. _ (109 SC 2201, 104 LE2d 865) (1989) reemphasized this. To pursue a course of action the objective of which is to penalize a person’s reliance on his legal rights is a “flagrant violation” and “patently unconstitutional.” Bordenkircher, supra; Pearce v. North Carolina, 395 U. S. 711, 723-5 (89 SC 2072, 23 LE2d 656) (1969).

The application of OCGA § 17-10-7 (a) in conjunction with OCGA § 16-13-30 (c) as to the drug count required the fifteen-year sentence imposed but also retained trial court discretion to probate or suspend the prescribed sentence. The record of the court’s statements at sentencing is evidence of a judicial retaliatory motive insofar as the allocation of time served is concerned.

While defendant may suffer the consequences of his choice to be tried, including a more severe sentence, the Federal Constitution forbids the imposition of punishment when it comprises, at least in part, a penalty for the exercise of a legal right to trial. The decision in Thompson, supra at 708-709, recognized this when the specific finding was made that the trial court’s action in imposing sentence was not “vindictive” within the meaning of Pearce, supra. Without this factual basis the rest of Thompson would be mere rhetoric. In Sparks v. State, 176 Ga. App. 8, 12 (3) (335 SE2d 298) (1985) [physical precedent], it was argued that the trial court erred in assessing a harsher sentence because defendant elected to enter a not guilty plea, putting the State to the trouble of proving guilt. The author, with whom another panel member agreed, observed: “We would agree with [defendant] if we were satisfied that the trial judge was so motivated.”

Decided November 27, 1989.

John V. Lloyd, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

In brief, a more severe sentence may be imposed but only where its rationale or motivation is not tainted with “vindictiveness.” In recognition of this fundamental principle the Uniform Superior Court Rules, promulgated by the Supreme Court, admonish: “The judge should not impose upon a defendant any sentence in excess of that which would be justified by any of the rehabilitative, protective, deterrent or other purposes of the criminal law merely because the defendant has chosen to require the prosecution to prove his guilt at trial rather than to enter a plea of guilty or nolo contendere.” (Emphasis in original.) USCR 33.6 (B).

The appearance of vindictiveness jeopardizes the sentence and requires its reversal. If it is to be reimposed, a constitutionally permissible explanation must be made because of the prior comments; in any event, the imposition of sentence must be devoid of the vindictiveness described in Alabama v. Smith, supra, and cases cited therein.

I recognize that Alabama v. Smith involved a vacated guilty plea followed by a trial, that is, two court sentencings, whereas this case involves only a sentence offer by the State and one post-trial court sentencing. See also Thompson, supra. In defendant’s case the sentence complained of does not follow a less severe but voided sentence, that is, two judicial decisions regarding the appropriate sentence. Instead, it follows a less severe plea bargaining offer of which the court was aware when fashioning the sentence. However, the prohibition against improper motive as outlined in Alabama v. Smith, supra, applies as well, because of the root problem.

I am authorized to state that Presiding Judge Banke and Judge Benham join in this dissent.


text:
    A89A1549.
    ROBINSON v. PIGGLY WIGGLY OF CALHOUN, INC.
    (388 SE2d 754)
   Pope, Judge.

Appellant-plaintiff Robinson appeals the trial court’s order denying her leave to amend her complaint, granting appellee-defendant Piggly Wiggly of Calhoun, Inc.’s motion for summary judgment and dismissing the action. Robinson slipped and fell in the Piggly Wiggly in Bremen. Shortly before the running of the statute of limitation, she brought this action for negligence against defendant Piggly Wiggly of Calhoun, Inc. (hereinafter PWC, Inc.). PWC, Inc., answered, admitting that plaintiff fell “while in the premises of defendant,” but denying negligence. Four months later, PWC, Inc., amended its answer and denied that it owned the Piggly Wiggly in Bremen and showed that the store was operated instead by T-B Foods, Inc., a separate corporation from defendant. Plaintiff immediately served the registered agent for T-B Foods, Inc., with a copy of the complaint, but failed to move the court to allow the addition or substitution of T-B Foods, Inc., to the action. In February, both PWC, Inc., and T-B Foods, Inc., moved to dismiss, or in the alternative, for summary judgment. Its supporting affidavits showed that PWC, Inc., provided “buying, bookkeeping, management and marketing services to several grocery stores in the North Georgia area operating under the name Piggly Wiggly,” and further denied operation or ownership of the store in Bremen. Merrill Dobbs averred that he was president of T-B Foods, Inc., and that it owned and operated the Bremen store. The trial court granted defendants’ motions and plaintiff appeals. Held:

Plaintiff argues that the trial court should have allowed the amendment pursuant to OCGA § 9-11-15 (c). Apparently, plaintiff delayed seeking leave of court to amend to add T-B Foods, Inc., because she mistakenly believed that she could amend her pleadings without leave of court anytime prior to entry of a pre-trial order. “Although amendments may be had as a matter of right before entry of a pretrial order, OCGA § 9-11-15 (a), where a party seeks to add a new party by amendment, OCGA § 9-11-21 requires the exercise of discretion by the trial court and thus ‘leave of the court.’ Clover Realty Co. v. Todd, 237 Ga. 821, 822 (229 SE2d 649) (1976). By itself delay is insufficient to deny the addition of a party but laches and unexcused delay may bar a proposed amendment. Dover Place Apts. v. A & M Plumbing &c. Co., 167 Ga. App. 732, 735 (307 SE2d 530) (1983).” Maitlen v. Derst, 178 Ga. App. 305, 306 (342 SE2d 777) (1986).

“In A. H. Robins Co. v. Sullivan, 136 Ga. App. 533 (221 SE2d 697) (1975), this court held that OCGA § 9-11-15 (c) may authorize the addition of a new party defendant and a relation back as to that new defendant, but only if the three elements which are specifically enumerated in that provision have first been satisfied. Those three elements are: (1) That the amendment adding the new defendant arise out of the same facts as the original complaint; (2) That the new defendant had sufficient notice of the action; and (3) That the new defendant knew or should have known that, but for a mistake concerning his identity as a proper party, the action would have been brought against him. The plaintiff in A. H. Robins Co. had sought to add a defendant under circumstances which would have satisfied the first element of OCGA § 9-11-15 (c), but not the second or the third element. This court held that all three elements of OCGA § 9-11-15 (c) must be satisfied if the original pleadings are to relate back as to a new defendant who is added by amendment: ‘We do not believe that the addition of parties who are altogether strangers to the original suit, insofar as notice and knowledge thereof (are concerned), was intended to be encompassed within the word “changing.” (Cits.)’... A. H. Robins Co. v. Sullivan, supra at 535. Clearly, the import of this holding is that the addition of parties who have an involvement in the same set of facts which gave rise to the original complaint and who are also not ‘altogether strangers to the original suit, insofar as notice and knowledge thereof (are concerned),’ would be authorized under OCGA § 9-11-15 (c).” (Emphasis omitted.) Cobb v. Stephens, 186 Ga. App. 648, 648-649 (368 SE2d 341) (1988).

In examining the record before us, we find that the original summons was served on Merrill Dobbs as agent for PWC, Inc. Merrill Dobbs is also president of T-B Foods, Inc., the corporation that owned the store in which plaintiff fell. Thus, from the date of original service on May 25, 1988, T-B Foods, Inc., through its president, had actual notice of the action. It is curious that defendant PWC, Inc., would answer in June admitting ownership of the premises and not amend stating that T-B Foods, Inc., was the true owner until four months later. It appears that the three-pronged test of A. H. Robins Co., supra, has been met in this case: (1) the amendment adding T-B Foods, Inc., arose from the same facts as the original complaint; (2) T-B Foods, Inc., through its president, had sufficient notice of the action through service of the complaint on him as agent for PWC, Inc.; and (3) T-B Foods, Inc., through its president, Dobbs, knew or should have known that, but for a mistake concerning its identity as a proper party, the action would have been brought against it. Plaintiff perfected service on T-B Foods, Inc., as soon as she learned of its identity, but before seeking leave to amend. The trial court denied the motion to amend solely on the fact that four months passed between the time plaintiff learned of T-B Foods, Inc., and the date of the motion. However, as stated above, mere delay is not sufficient to deny the motion.

Decided November 27, 1989.

Thomas M. Witcher, for appellant.

Henry C. Tharpe, Jr., Cynthia N. Johnson, for appellee.

The line of cases cited to us by appellee deals with attempts to add a stranger in which no service existed on the corporation to be added. Neither situation is applicable here. PWC, Inc., and T-B Foods, Inc., are closely intertwined. It took PWC, Inc., four months to determine that it did not own the store in question in spite of the fact that Dobbs, president of T-B Foods, Inc., received service of the complaint as agent for PWC, Inc. We find that the trial court erred in denying plaintiff’s motion to amend to add T-B Foods, Inc. The situation is analogous to that in Rich’s, Inc. v. Snyder, 134 Ga. App. 889 (216 SE2d 648) (1975), in which this court allowed amendment substituting Rich’s for Richway, Inc., upon finding that the registered agent for service for both corporations was the same and that the liability carrier for Rich’s was on notice regarding the incident already.

Our decision has the following effect. Summary judgment for PWC, Inc., was correct as it demonstrated that it was not the proper corporate defendant. However, summary judgment was not proper for T-B Foods, Inc. That ruling by the trial court is reversed and the trial court is directed to enter an order allowing plaintiff to substitute T-B Foods, Inc., as party defendant, with the date of service relating back to the original service date of PWC, Inc.

Judgment reversed.

Banke, P. J., and Sognier, J., concur.


author: Birdsong, Judge.

text:
    A89A1571.
    WILLIAMS v. THE STATE.
    (388 SE2d 893)
   Birdsong, Judge.

Appellant Grady Williams appeals his conviction of unlawful possession of cocaine and possession of less than one ounce of marijuana, and his sentence. Held:

Appellant’s sole enumeration of error is that the trial court erred in denying his motion to suppress, as probable cause for issuance of the warrant was lacking.

In support of this enumeration, appellant asserts that the affidavit in support of the search warrant was inadequate, as it contained all of the circumstances therein presented to the magistrate, and that this “was completely devoid of any substantiation.” The warrant and affidavit have not been made a part of this record for our review. Appellant has attempted to bring the contents of the affidavit before this court by purporting to recite it verbatim in his brief. This court cannot consider the factual assertions of the parties appearing in briefs when such evidence does not appear on the record. Hudson v. State, 185 Ga. App. 508 (1) (364 SE2d 635). Moreover, parties cannot supplement the record merely by attaching matters to or reciting matters in their briefs. See generally Rivera v. Harris, 259 Ga. 171 (1) (377 SE2d 844). We will, however, hereinafter review the suppression hearing transcript to determine to the extent possible the contents of the missing affidavit.

“[A] search conducted pursuant to a search warrant, regular and proper on its face, is presumed to be valid and the burden is on the person who moves to suppress the items found to show that the search warrant was invalid.” State v. Slaughter, 252 Ga. 435, 437 (315 SE2d 865). In this regard, although the search warrant is not included within the record, appellant has made no assertion on appeal that the search warrant was not regular and proper on its face. Further, there exists a presumption of validity regarding an affidavit supporting a search warrant. Ross v. State, 169 Ga. App. 655, 657 (314 SE2d 674). In the absence of a showing that the affiant engaged in misconduct in executing the affidavit or that material misrepresentations were knowingly or recklessly included in the affidavit, the presumption of validity of the affidavit must stand. Hayes v. State, 182 Ga. App. 319, 320 (355 SE2d 700). As appellant makes no such allegations and as the trial record discloses no such acts, we find no basis for concluding that the affidavit was not validly executed.

Following the suppression hearing, the superior court entered an order denying appellant’s motion to suppress. That order included the findings “that based on the totality of the circumstances there was probable cause to issue the search warrant in this case and that the search was therefore valid.” Decisions on questions of fact and credibility made by the trial court at a suppression hearing must be accepted unless clearly erroneous. Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428); accord Williams v. State, 256 Ga. 609, 610 (351 SE2d 454). We will now proceed to review the suppression hearing transcript to ascertain to the extent possible the contents of the affidavit, and whether the findings of fact and credibility that were made, at least tacitly, in order for the trial court to conclude that the search was based on probable cause and valid, are shown to be clearly erroneous. If an appellate court finds that an affidavit is susceptible to two or more reasonable factual interpretations, it should, in deference to the magistrate’s determination, adopt that interpretation which most strongly supports the ruling of the magistrate as to the existence of probable cause. See Keller v. State, 169 Ga. App. 596 (314 SE2d 255), citing Devier v. State, 247 Ga. 635 (4) (277 SE2d 729) (the magistrate’s determination of probable cause is entitled to great deference by reviewing courts); compare Williams v. State, 251 Ga. 749, 794 (8) (b) (ii) (312 SE2d 40). Moreover, “ ‘affidavits for search warrants . . . must be tested and interpreted by magistrates and courts in a commonsense [sic] and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. . . . Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants' ” (Emphasis supplied.) State v. Babb, 134 Ga. App. 302, 303 (1) (214 SE2d 397), citing United States v. Ventresca, 380 U. S. 102, 108 (85 SC 741, 13 LE2d 684).

The evidence at the suppression- hearing reveals the following. Detective Nichols of the Carroll County Sheriff’s Department testified that he supervised an investigation that took place regarding appellant in April 1988. Detective Nichols had occasion to request the issuance of a search warrant of a room at Tanner Beach State Park that appellant was using. When requesting the warrant, the only information which Detective Nichols gave to the magistrate was that contained in the affidavit supporting the warrant. The affidavit for search warrant included the following information: Detective Nichols received information in the past five days (but prior to the search warrant being issued) from an informant that appellant was using an apartment or a small rental unit at Tanner Beach State Park for the purpose of cutting and weighing cocaine. Detective Nichols also received information from the manager of the Tanner Beach State Park that (two weeks prior to the date the search warrant was executed) one of his maids had found evidence of drug use, including a heavy residue of white powder on several items in the room that appellant had rented. The manager stated that appellant was renting the apartment for two days (apparently April 27-28), and that appellant had previously rented the apartment two weeks earlier. Detective Nichols also had information that appellant had previously been arrested by the sheriff’s department for violation of the Georgia Controlled Substances Act.

The search warrant was executed on April 27, 1988. Prior to executing the warrant, Detective Nichols and two other police officers conducted surveillance of appellant’s room at Tanner Beach State Park from a room next door. Appellant was observed entering his apartment during the surveillance period. The surveillance revealed “[a] lot of loud talk, drug-related talk. You could tell it was just a party-type atmosphere in [appellant’s] room next to us.”

In concluding that the warrant was valid and based on probable cause, the judge issuing the warrant per force would have made a tacit finding that the information contained in the warrant and the witnesses supplying that information were credible. At the outset we find that the information reported by the manager (and apparently attributed in the affidavit to a report by his maid) would constitute information supplied by concerned citizens who were not confidential police informants. Georgia courts appropriately have always given the “concerned citizen informer a preferred status insofar as testing the credibility of his information.” Cichetti v. State, 181 Ga. App. 272, 273 (351 SE2d 707). Moreover, we find that the information supplied independently by the confidential informant and the concerned citizen informant tended to be mutually corroborative, and thus inherently provided some mutual indicia of reliability for the judge’s consideration. Under these circumstances, we find that the tacit findings of credibility by the judge were not clearly erroneous.

Appellant further asserts that the information in the affidavit, attributable to a report by the manager to the police of a report received from the maid, was unreliable hearsay. Assuming arguendo, and notwithstanding contrary evidence in the trial transcript, that this information relayed to the police by the park manager was solely based on hearsay information, we do not find that evidence to be without some value in supporting a probable cause determination. “The rule in Georgia has been that an affidavit supporting a search warrant may be based on hearsay information as long as there is a substantial basis for crediting the hearsay.” Lewis v. State, 255 Ga. 101, 105 (2) (335 SE2d 560).

In this instance, both the manager (who reported the information to the police) and the maid (who duly reported the information to her supervisor, the manager) were citizen informers rather than confidential police informants. Secondly, the information reported by the manager was partially corroborated by information independently reported by the confidential informant. Each of these factors, individually or collectively, presents circumstances to the judge which would supply a substantial basis for crediting the double hearsay within the meaning of Lewis, supra. Compare State v. Hockman, 171 Ga. App. 504 (320 SE2d 241); cf. Nelson v. Central R. &c. Co., 48 Ga. 152 (presumption an owner is aware of condition of his own property).

The factual information contained in the affidavit regarding appellant’s prior criminal conduct also could be considered by the judge, together with the other information therein, to support a finding of probable cause to issue a search warrant. Caffo v. State, 247 Ga. 751, 755 (2) (c) (279 SE2d 678).

Decided November 27, 1989.

Murray M. Silver, for appellant.

William G. Hamrick, Jr., District Attorney, Monique F. Kirby, Assistant District Attorney, for appellee.

As a reviewing court, our duty is simply to ensure that the magistrate or judge had a substantial basis for concluding that probable cause existed. State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823); Brown v. State, 190 Ga. App. 324 (2) (378 SE2d 908); Hockman, supra at 505-506. Further, as above discussed, in close cases where it is not easy to determine if an affidavit demonstrates the existence of probable cause, “ ‘the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded .... warrants.’ ” Hockman, supra at 506; accord State v. Babb, supra at 303 (1). Examination of the known contents of the affidavit in support of the warrant, using a totality of the circumstances test, reveals that the judge had a substantial basis for concluding that probable cause existed. See generally Illinois v. Gates, 462 U. S. 213, 234 (103 SC 2317, 76 LE2d 527).

Moreover, we conclude that no suasive evidence of record exists that the search warrant was so facially deficient that the executing officers could not reasonably presume it to be valid; that the judge who issued the warrant was other than neutral and detached; that the affidavit was so lacking in indicia of probable cause as to render an official belief in its existence entirely unreasonable; or, that the judge issuing this warrant was misled by information in the affidavit that the affiant knew or should have known, except for a reckless disregard on his part, to be false.

The evidence recorded in the suppression hearing regarding the contents of the affidavit shows, as a matter of law, that it was not so lacking in its indicia of probable cause as to render the judge’s belief in the existence of probable cause entirely unreasonable. Accordingly, assuming arguendo that probable cause had not in fact existed for the issuance of the search warrant, we are satisfied under the totality of the circumstances that the officers executing the search warrant acted in reasonable good faith reliance thereon within the meaning of United States v. Leon, 468 U. S. 897 (104 SC 3405, 81 LE2d 677). Compare Debey v. State, 192 Ga. App. 512 (385 SE2d 694) (1989) and State v. Evans, 192 Ga. App. 216 (384 SE2d 404) (1989).

Appellant’s enumeration of error is without merit.

Judgment affirmed.

Deen, P. J., concurs. Benham, J., concurs in judgment only.


text:
    A89A1707.
    ROMANO v. THE STATE.
    (388 SE2d 757)
   Birdsong, Judge.

Edvardo Romano was convicted of trafficking in cocaine, proven in the quantity of 28 grams. On appeal he enumerates essentially two errors below. Held:

1. Appellant Romano complains in the first instance that because the State in a motion in limine misquoted the law on impeachment of a first offender conviction (see OCGA § 42-8-62; Gilstrap v. State, 250 Ga. 814 (301 SE2d 277); Favors v. State, 234 Ga. 80, 86 (3) (214 SE2d 645)), he was prevented from impeaching the State’s witness Samoilovich. Samoilovich, who was appellant’s roommate and engaged with appellant in the sale of cocaine to the undercover agent, testified at length as to appellant’s involvement in the sale.

The record shows that the State did erroneously cite to the trial court that a first offender record which had been expunged could not be used for impeachment. Nevertheless, the trial court was never called upon to rule on the matter because appellant’s attorney stated firmly, and apparently independently, that he had no intention of impeaching Samoilovich with his first offender record for burglary. The matter never arose. On appeal, we do not examine alleged errors which have not been objected to below and ruled upon. Failure to make a timely and specific objection to error at trial may be treated as waiver on appeal, and “issues not raised in the trial forum in any form calling for a ruling will not be considered on appeal, for this is a court for correction of errors made by the trial court.” Bennett v. State, 187 Ga. App. 234, 235 (369 SE2d 552); Mayo v. State, 132 Ga. App. 217, 218 (207 SE2d 697). The trial court made no error in this case; it never ruled at all on the issue of Samoilovich’s impeachment for appellant never called it into issue. His own misapprehension that he could not use the first offender record as impeachment cannot be blamed on the State in this case.

If any error at all inhered in these proceedings, we find such error was harmless beyond a reasonable doubt, because the direct evidence against Romano by other witnesses, particularly the undercover agent Yociss, was overwhelming. Agent Yociss spoke to appellant, identified then as “Ed,” on the telephone to set up the “buy.” A recording of this conversation was admitted into evidence. Agent Yociss, or “Diane,” testified she rendezvoused at Gwinnett Mall with “Ed” and Samoilovich, as agreed; she identified appellant as “Ed.” Appellant returned to his and Samoilovich’s vehicle and drove it to Agent Yociss’ location; she got in the car with appellant. Appellant opened the glove compartment of the car for her, and she saw a gun and the “dope,” which consisted in fact of two bags of cocaine. Upon her signal to back-up officers, appellant and Samoilovich were arrested. Even without the evidence given by the impeachable Samoilovich, this evidence is such as to enable a rational trier of fact to find appellant’s guilt of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Under the strong, if not overwhelming, evidence given by Yociss, who had sat in the vehicle and been shown the cocaine by appellant, it is highly probable that any conceivable error in appellant’s being “prevented,” as he claims, from impeaching Samoilovich, with a prior burglary offense, did not contribute to the verdict. Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515); Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133).

2. Appellant contends the trial court erred substantially in its jury charge, in persuading the jury it could convict appellant upon a finding of mere “constructive” possession, when the statute at the time of the offense proscribed, required a finding of, “actual” possession. See Lockwood v. State, 257 Ga. 796 (364 SE2d 574).

The legislature has since amended the statute (OCGA § 16-13-31) at Ga. L. 1988, p. 420, § 2, to delete the language requiring proof of “actual” possession; obviously that language caused much difficulty in securing the conviction of parties to the crime of trafficking in cocaine. See, e.g., Barrett v. State, 183 Ga. App. 729, 735-736 (360 SE2d 400); see also Riley v. State, 191 Ga. App. 781 (383 SE2d 172). However, we find no such difficulty in this case, because the trial court, in instructing the jury as to the law at the time, never charged the jury it could convict if it found appellant in “constructive” possession. The trial court repeatedly charged the jury under the statute then standing, that “actual” possession must be found. The court’s charge as to the law of “parties to the crime” was perfectly correct, notwithstanding any supposed difficulties in applying that concept to a requirement of “actual” possession. See, e.g., Barrett, supra. Besides, the evidence was that appellant was in “actual” possession to the extent that he drove the vehicle to meet the agent and, when she got in the car, he opened the glove compartment and showed her the cocaine. Obviously he “knowingly” had “direct physical control” (Lockwood v. State, supra) of the cocaine while he drove the car around the parking lot to meet up with Samoilovich and the agent, and while he sat in it and opened the glove compartment to show it. So, whatever the instructions, the jury could clearly find actual possession to the Jackson v. Virginia standard, for appellant was in “actual” possession, and therefore could not have been harmed by any supposed implication that he could be convicted upon mere constructive possession. We find no merit in the enumerations of error dealing with this aspect of the trial court’s charge.

Decided November 27, 1989.

Pruitt & Britt, Walter M. Britt, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A1715.
    REEDY v. FISCHER.
    (388 SE2d 759)
   McMurray, Presiding Judge.

On December 17,1987, Ryan D. Fischer, b/n/f and father Gary E. Fischer, and his parents, Gary E. Fischer and Barbara S. Fischer, in their own capacities, brought this medical malpractice action against Kathryn W. Collier, M. D., Frances R. Reedy, executrix of the estate of John C. Reedy, M. D., and The Emory Clinic. The action was a renewal of a previous action which was dismissed voluntarily within the preceding six months. It should be noted, however, that in the original action, neither John C. Reedy, nor his estate, was named as a party defendant.

The complaint in the renewal action alleged that on or about January 6, 1983, Ryan D. Fischer (who was five months old at that time) was treated by Drs. Collier and Reedy; that, in their care and treatment of Ryan Fischer, Drs. Collier and Reedy acted within the scope of their agency and employment with The Emory Clinic; that Drs. Collier and Reedy treated Ryan Fischer negligently; and that, as a direct result of the negligence of Drs. Collier and Reedy, Ryan Fischer suffered severe and permanent injuries. Defendants answered the complaint, denying any liability to plaintiffs and setting forth, inter alia, a statute of limitation defense.

Thereafter, defendant Reedy moved for partial summary judgment, pointing out that the parents’ claim to recover the medical expenses of their minor child expired before the renewal action was filed. Defendant Reedy did not seek summary judgment with regard to the child’s own action for injuries and future medical expenses after the age of majority. (Concerning the distinction between the claim of the parents and the claim of the minor child, see Rose v. Hamilton Med. Center, 184 Ga. App. 182 (361 SE2d 1).) The trial court denied defendant Reedy’s motion for partial summary judgment, certifying its ruling for immediate review. We granted defendant Reedy’s application for an interlocutory appeal. Held:

Decided November 27, 1989.

Allen & Ballard, William L. Ballard, E. Jane Simpson, for appellant.

Blank & LaChance, A. Russell Blank, for appellee.

“Code § 3-808 [OCGA § 9-2-61] may not be used to suspend the running of the statute of limitation as to defendants different from those originally sued. Sheldon & Co. v. Emory University, 184 Ga. 440 (191 SE 497); Floyd & Lee v. Boyd, 16 Ga. App. 43 (84 SE 494). See also Vari v. Food Fair Stores, 205 A2d 529 (Del. Supreme Court 1964).” Cornwell v. Williams Bros. Lumber Co., 139 Ga. App. 773, 774 (2), 775 (229 SE2d 551). Inasmuch as neither John C. Reedy, nor the estate of John C. Reedy, was named as a party defendant in the original action, the renewal action could not be brought against defendant Reedy to evade the statute of limitation bar. Cornwell v. Williams Bros. Lumber Co., supra. Compare Rich’s, Inc. v. Snyder, 134 Ga. App. 889 (216 SE2d 648), with Beaver v. Steinichen, 182 Ga. App. 303 (355 SE2d 698). See also Wagner v. Casey, 169 Ga. App. 500, 501 (2) (313 SE2d 756).

Judgment reversed.

Carley, C. J., and Beasley, J., concur.