text:
    A89A0284.
    JONES v. THE STATE.
    (384 SE2d 273)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of selling cocaine in violation of the Georgia Controlled Substances Act. He appeals from the judgment of conviction and sentence that was entered by the trial court on the jury’s guilty verdict.

Appellant filed a motion to compel the State to disclose the identity of a confidential informant who had witnessed the sale of cocaine. After conducting a hearing, the trial court denied the motion. On appeal, appellant’s sole enumeration is that the trial court erred in denying the motion.

Decided July 10, 1989.

Andrews & Seery, Stephen H. Andrews, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.

The record shows that an officer purchased a quantity of cocaine but did not make an immediate arrest of the seller. Appellant was subsequently arrested and charged with the offense. The officer positively identified appellant as the perpetrator. Appellant denied any participation in the transaction and claimed misidentification by the officer. Under these circumstances, the disclosure of the identity of the confidential informant was material to the issue of appellant’s guilt. See Ponder v. State, 191 Ga. App. 346 (381 SE2d 534) (1989); Moore v. State, 187 Ga. App. 387 (370 SE2d 511) (1988). Compare Brinson v. State, 188 Ga. App. 214 (372 SE2d 487) (1988). The confidential informant, who, other than the officer and the perpetrator, was the only one present at the time the offense was committed, was “ ‘the only witness in a position to amplify or contradict the testimony’ of the appellant and the police officer. [Cit.]” Moore v. State, supra at 391 (2). “Accordingly, the trial court is directed to conduct a post-trial, in-camera proceeding as explained in Moore v. State, supra, to determine whether the error of nondisclosure of the informant’s identity was harmless.” Ponder v. State, supra at 347.

Case remanded with direction.

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


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A89A0436.
    BROWN v. THE STATE.
    (384 SE2d 254)
   Birdsong, Judge.

Appellant, John Ruddin Brown a/k/a John Williams, appeals his conviction of robbery of a purse by sudden snatching, financial transaction card fraud, and financial transaction card theft.

The victim was loading groceries into her car when her purse, which contained her Rich’s card, was snatched from her possession by a man whom she later identified as appellant. Appellant was apprehended approximately 15 minutes later attempting to purchase a gold chain from Rich’s at Cumberland, ¿ store located a little more than a quarter of a mile from the crime scene.

Appellant testified and judicially admitted that he had attempted to purchase a gold chain using a credit card which he knew was stolen; however, appellant denied committing the robbery and claimed that he had purchased the card from a friend named Isaiah Sanders for $50. Held:

1. Appellant asserts that evidence was improperly admitted that the victim identified appellant as her assailant at a one-on-one showup identification conducted at the Smyrna police station.

The evidence of record reveals that someone at the Smyrna police department called the victim to come to the station to make an identification. The victim went to the station and was using a pay phone when she “looked across the police station” and saw appellant. She immediately recognized that he was the one who robbed her. She was startled as she did not initially see the policeman who was shorter and several feet behind appellant. Appellant was escorted through the back door of the station to the book-in area; the police officer saw the victim using the pay phone approximately 25 feet away, after he and appellant had entered the station. The victim also made an in-court identification of appellant. Appellant did not recall seeing the victim at the police station. The victim testified the police officer subsequently asked if she could identify appellant and she told him she could.

In determining whether a due process violation occurred in the conduct of a pretrial confrontation between the victim and appellant, “the test is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” McCoy v. State, 190 Ga. App. 258 (3) (378 SE2d 888). Although it appears the confrontation in this instance was accidental rather than planned, we will, out of an abundance of caution, apply the above test to the issue before us. In making this determination, the following factors will be considered: (a) opportunity to view the defendant at the time of the offense (although the victim only viewed appellant’s face briefly, appellant turned and looked at the victim who was pursuing him, appellant was only three to five feet away at the time, the area was fairly-well lighted, and the victim was able to distinguish appellant’s features at the crime scene “[c]lear enough to know it was the man they brought in that night”); (b) the witness’ degree of attention (the witness exhibited a high degree of attention and collectiveness of thought as reflected by her ability to recognize the clothing appellant was wearing, by her observation of appellant’s features during fresh pursuit, by her observation that as the get-away vehicle rapidly left the scene the appellant’s “right leg was still hanging out of the car,” and by her request to another motorist, later identified as a man named Arnold, to follow the fleeing car); (c) the accuracy of the witness’ prior description (the witness’ estimate of the fleeing appellant’s height was only three inches under appellant’s actual height of six feet, but appellant’s weight appears to have been initially underestimated by the witness by perhaps as much as 40-45 pounds); (d) the level of certainty demonstrated (the witness made her identification of appellant at the police station without any hesitancy; she testified that she was then able to recognize appellant’s facial features, and that the clothes he was wearing were the same as those worn by the robber at the time of the incident; and she made an in-court identification of appellant without expressing any reservations and without any apparent in-court hesitation); and, (e) the length of time between the crime and the identification (in this case only about one and one-half hours elapsed between the time of the incident and the witness’ identification of appellant at the police station; that is a relatively short period of time and the record does not affirmatively demonstrate any lapse in the witness’ memory during this time span). Compare McCoy, supra. Balancing the above factors in light of the totality of the operative circumstances, we find that there exists no substantial likelihood of irreparable pretrial misiden-tification of appellant.

Assuming arguendo some form of taint had occurred in the pretrial identification of appellant, a witness’ in-court identification may still be admitted provided it has an “independent origin” therefrom. McCoy, supra at 261. Moreover, the fact that a witness may have only a “ ‘fleeting’ opportunity to observe” a perpetrator at the crime scene does not per se render the in-court identification inadmissible. See Jones v. State, 258 Ga. 25 (3) (365 SE2d 263). Considering the totality of the circumstances, we find that appellant’s in-court identification by the victim had such an “independent origin” in this case.

2. Appellant asserts that the evidence submitted at trial did not prove his guilt of robbery beyond a reasonable doubt. Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State, 257 Ga. 735 (2) (363 SE2d 257).

3. Appellant asserts that failure of the prosecution to provide him with certain exculpatory evidence operated as a denial of his due process rights under the Fourteenth Amendment to the United States Constitution as interpreted in Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215).

a. Appellant’s enumeration of error on the basis that he was denied pretrial information that the automobile used in the robbery was registered to Isaiah Sanders is without merit. The transcript of the post-trial hearing on appellant’s motion to amend the trial record, properly transmitted to this court, reveals that appellant’s trial defense counsel was duly notified “that the vehicle used in the commission of the robbery did belong to Isaiah Sanders.” The entire record and transcripts before us are devoid of any information to refute this showing. Appellant has the burden to establish a Brady violation and he has not met his burden in regard to this matter. Boatright v. State, 192 Ga. App. 112 (2) (_ SE2d _); Williams v. State, 190 Ga. App. 646 (5) (381 SE2d 65).

b. Appellant’s enumeration of error on the basis that he was denied pretrial information that a man named Arnold had made a statement positively identifying Isaiah Sanders as one of the participants in the robbery also is without merit.

Mr. Arnold testified at the post-trial hearing that as he was leaving the shopping area he saw a girl running fast but thought nothing of it until she flagged him down; he then followed the get-away car and identified it as being a car which belonged to Isaiah Sanders. Although he did not see Sanders face-to-face, he was able to determine that it was Sanders driving the car. Mr. Arnold saw no one else in the vehicle. Arnold was familiar with both the car and Sanders, as he previously had sold the car to Sanders.

In a subsequent phone conversation with Detective Maloney, Arnold informed Maloney that the car belonged to Isaiah Sanders. Mr. Arnold testified that he either informed Maloney that it was Isaiah Sanders driving the car or that he had recognized who was driving the car; but Arnold also expressly admitted that he may not have told Maloney who was driving the car.

Detective Maloney testified that Arnold told him that he possibly knew who owned the car and said it belonged to Isaiah Sanders; Arnold did not indicate to him that he recognized Sanders as driving the car. The State made a proffer in its place that it was not aware, until preparation of the post-trial hearing had begun, of Arnold’s contention that he had seen only one person (whom he believed to be Sanders) in the car. This proffer was not contested by appellant.

No evidence appears in the record which establishes that any of the information in question was not provided appellant’s trial defense counsel either before or during trial. Moreover, Arnold’s name and address appeared on the State’s supplemental witness list, and Arnold, though not called as a witness, was outside the courtroom and thus physically present during at least part of the trial.

The evidence before us clearly establishes that Arnold did not actually witness the robbery. Moreover, from the posture of the evidence, appellant has failed to establish that Arnold in fact informed the police that he had observed either Isaiah Sanders or anyone that he knew driving the car. Accordingly, appellant has failed to carry its burden of establishing that a Brady violation, as asserted in his enumeration of error, has occurred. See Boatright, supra; Williams, supra.

Decided July 10, 1989.

Kenneth L. Chalker, Jr., for appellant.

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

Assuming arguendo the police did possess certain of this information before trial, “ ‘counsel for the State can make available only such evidence as it has in its file, or of which it has knowledge, and “is under no requirement to conduct an investigation on behalf of a defendant. . . . [T]here is ‘no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.’ ” ’ ” Williams, supra at 649. In Massengale v. State, 189 Ga. App. 877, 881 (377 SE2d 882), we stated “[i]n the absence of a clear showing that. . . information was wilfully and intentionally concealed from the defense, we are inclined not to impute to the prosecutor knowledge possessed by the local police and probation authorities.” (Emphasis deleted.) The record and transcripts contained no evidence that any wilful or intentional concealment occurred in this case.

We further note that in his motion to amend the record, appellant expressly asserted that “during the early stages of trial Detective Maloney . . . informed attorney for [appellant] that this statement [that Arnold positively identified Sanders as a participant in the robbery] had been made.” Assuming arguendo this assertion had been so proven, it is well-settled that a Brady violation does not occur when Brady material is made available to the defendant during the trial. Houston v. State, 187 Ga. App. 335 (3) (370 SE2d 178).

Judgment affirmed.

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


author: Pope, Judge.

text:
    A89A0606.
    GOLDEN v. THE STATE.
    (384 SE2d 258)
   Pope, Judge.

Rashunda Denise Golden was convicted of voluntary manslaughter in the shooting death of her mother. On appeal, she contests the trial court’s finding that her pre-trial statements were made voluntarily. Held:

On the evening of July 2 or in the early morning of July 3, 1987, Frances Golden was shot to death in her bedroom. Appellant, was 17 at the time of the shooting and her sister was 14. Police interviewed appellant on the morning of July 3, and again on July 10 to see if she remembered anything else, but appellant was not considered a suspect at the time of these interviews and no Miranda warnings were given on either occasion. However, there were inconsistencies in her statements and police decided to talk to her again. On July 14, appellant was advised that she was a suspect. Appellant was brought to the police station by her uncle. She was interviewed alone with Detective Thomas and Glenn Foster, a consultant to police who is an expert in interview techniques. Lieutenant Bradley listened to the proceedings through an intercom. Detective Thomas read appellant her Miranda rights. She acknowledged that she understood her rights and signed a waiver and the interrogation proceeded. Police then took appellant through her statement again and taped the interview. During the interview, appellant admitted that she shot her mother. Appellant further stated that she and her sister were upset at the mother because she had disciplined them for allowing boys to visit them at their home when the mother was at work and that they concluded that they were going to have to do something about their mother if they were ever going to be able to have any freedom or fun or the opportunity to see friends. She again was given Miranda warnings and again acknowledged that she understood. The interview was interrupted while police went to search for the gun used in the crime and then resumed when they returned. Appellant was reminded of the previous Miranda warnings before completing the taped interview. At one point, appellant asked to see her uncle, but was told she could not see him until the interview was complete. At the time of the interview, appellant was 17, had completed the 11th grade and had a verbal intelligence of 83. At the Jackson-Denno hearing, appellant testified and a psychologist who had examined appellant also testified. The thrust of his testimony was that appellant was not capable emotionally and intellectually of understanding the Miranda warnings. Held:

“Factual and credibility determinations made by a trial judge after a suppression hearing are accepted by appellate courts unless clearly erroneous.” (Citations and punctuation omitted.) Powell v. State, 252 Ga. 297, 298 (313 SE2d 90) (1984). “Contrary to inferences raised by [appellant], [her] age of 17 does not affect the admissibility of the statement. [She] does not fall within the definition of ‘child’ under OCGA § 15-11-2. Therefore, as an adult [she] is not entitled to the higher degree of court scrutiny awarded juveniles in determining the ‘knowing and voluntariness’ of their confessions.” Duncan v. State, 176 Ga. App. 652, 654 (337 SE2d 433) (1985). See also Birt v. State, 170 Ga. App. 57 (316 SE2d 169) (1984).

Nor do we find that appellant’s IQ of 83 precludes a finding that she understood her rights and knowingly waived them. “A mere showing that one who confessed to a crime may have suffered from some mental disability is not a sufficient basis upon which to exclude the statement. Our courts have approved statements from defendants with similar and lower IQs.” (Citations and punctuation omitted.) Marshall v. State, 248 Ga. 227, 229 (282 SE2d 301) (1981). Appellant did not have a right to have her uncle present during the interviews. See Marshall, supra at (3); Duncan, supra at 654.

Decided July 10, 1989.

Gordon Hiles, for appellant.

William G. Hamrick, Jr., District Attorney, for appellee.

The record supports the finding that the interviews of July 3 and July 10 were admissible because appellant was not a suspect and Miranda warnings were not necessary. It does not matter that the interviews were conducted at the police station. Hardeman v. State, 252 Ga. 286 (1) (313 SE2d 95) (1984).

Having examined the record, we find that the trial court correctly concluded from a totality of the circumstances that the statements were made knowingly and voluntarily and were admissible.

Judgment affirmed.

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


text:
    A89A0654.
    PHELPS v. THE STATE.
    (384 SE2d 260)
   Birdsong, Judge.

Anthony Gene Phelps appeals his conviction of burglary with the intent to commit rape.

Late in the evening, a man entered the trailer home of one of Phelps’ neighbors. At the time, the neighbor and her young son were home. The son was in his bedroom and the mother was in her bedroom nude, reading in bed. She saw the intruder in her bedroom doorway and began screaming. The man forced her back on the bed and pinned her down. They struggled and the woman repeatedly hit the man on the head with her telephone. Finally the intruder left.

During the time he was in the room, the man did not say anything, did not grab the victim’s private parts, and did not start to remove his clothes.

The victim described the person who entered her bedroom as a white male, 19-20 years old, with shoulder length blond hair parted in the middle. He was wearing beige jeans and had a pinkish-red rag over his face. Based upon the description, the police prepared a composite drawing of the suspect. Through the composite, appellant was initially identified as a suspect, and then was picked out in a photo line-up by the victim.

At trial the State relied on the testimony of the victim and expert witnesses from the GBI crime lab. The State also introduced, pursuant to appellant’s stipulation, evidence that he had “failed” a polygraph examination conducted by the police. Appellant was not permitted, however, to present evidence that he earlier had “passed” a private polygraph examination, because that was not part of the stipulation.

Appellant and his pregnant wife both testified that he .did not enter the victim’s trailer and that during the time in question, he was at home. They also testified that the wife was having severe labor pains during this time. Appellant called two witnesses he sought to have declared experts by the trial court. Although the lower court permitted the witnesses to testify and state their opinions, the trial judge refused to declare the witnesses experts. The trial court, however, did so declare the two expert witnesses from the GBI crime lab.

After the case was submitted to the jury and the jury had deliberated for some time, the jury requested copies of the transcripts of certain witnesses’ testimony and asked questions concerning some of the evidence they had heard. After receiving responses to some of these questions, the jury returned to their deliberations until they sent a note which stated in part that they were “deadlocked, fifty-fifty. . . .’’At that time the court gave an “Allen Charge” and sent the jury back for further deliberations. The next communication from the jury advised that the jury was still deadlocked. The jury went home overnight, and in the morning, they returned for further deliberations and then convicted the appellant. He was sentenced to ten years in prison on June 23, 1985. A timely motion for new trial was filed, and the motion for new trial was finally denied on October 18, 1988. This appeal followed.

Appellant enumerated ten errors, including the failure of the trial court to define the crime of rape in its charge; the failure of the trial court to charge that to convict the jury must find that appellant specifically intended to commit rape; the refusal of the trial court to qualify his witnesses as experts; that the trial court prohibited references to the private polygraph, that appellant’s first counsel did not render reasonably effective assistance of counsel; and that the verdict is not supported by the evidence. In view of our disposition of the first enumeration of error, we need not discuss in detail all the enumerations. Held: I

1. Appellant’s first enumeration attacks the trial court’s charge toB the jury. The State maintains that we should not consider this enu-H meration because it is raised here for the first time and was not part* of appellant’s new trial motion. The trial transcript reveals that, whenB asked by the trial judge whether he had objections to the charge, ap-l pellant’s trial counsel stated: “We wish to take exception to theB charge and would like to reserve our right to specify those exception» at the time of motion for a new trial, should [that] be necessary.” The record shows that the motion for new trial did not specify the grounds asserted in appellant’s first enumeration of error.

Assuming without deciding, that the failure to raise the error in the motion for new trial was a waiver, we must still consider the first enumeration as it attacks the charge to the jury on a defect in the essential elements of the offense alleged in the indictment. Substantial errors in the charge on the essential elements are usually harmful as a matter of law so as to invoke OCGA § 5-5-24 (c). Foskey v. Foskey, 257 Ga. 736, 737 (363 SE2d 547). We have jurisdiction to consider this matter. OCGA § 5-6-34 (d).

The entire charge on the elements of burglary was as follows: “Now, I charge you that to constitute the offense of burglary, it is not necessary that it be shown that a break-in occurred or that an actual theft occurred. Our law says, under Code Section 16-7-1 — it provides that a person commits the offense of burglary when, without authority, he enters any . . . dwelling house of another or into any room or part thereof with the intent to commit a felony therein. The offense of rape constitutes a felony under our law.” (Emphasis supplied.)

The court also charged that it was not necessary that the alleged felony actually occur and that it was only necessary that the evidence show beyond a reasonable doubt that the accused entered with the intent to commit the felony. The crime of rape was not defined in the charge and the jury was never specifically instructed that to convict the accused of the burglary they must find beyond a reasonable doubt that he specifically intended to commit the crime of rape.

The court charges that the State must prove “each and every material allegation contained in the indictment and each and every element of the offense charged beyond a reasonable doubt” before the jury would be authorized to convict. The jury was also charged that a “crime is a violation of a statute of this state in which there shall be a union or joint operation of act or omission to act and intention or criminal negligence . . .” (emphasis supplied), and further that intent is an essential element of any case and the State must prove the intent beyond a reasonable doubt.

The failure to define the elements of rape in the charge was error. “ ‘(It) is the duty of the judge, with or without request, to give the jury an appropriate instruction as to the law on each substantive point of issue involved in (a) case’ so as to enable the jury to judiciously decide the guilt or innocence of a defendant. [Cits.] As defendant’s intention to rape was an essential element of the crime with which he was charged (see Williams v. State, 112 Ga. App. 894 (147 SE2d 50)), the court’s failure to legally define rape constitutes reversible error.” Powers v. State, 150 Ga. App. 25, 26 (256 SE2d 637). Accord Turner v. State, 178 Ga. App. 888, 890 (345 SE2d 99).

Decided July 10, 1989.

Lenzer & Lenzer, Thomas P. Lenzer, for appellant.

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

The trial court’s failure to define the elements of rape is compounded by the gratuitous reference in the charge to irrelevant matters such as whether “an actual theft occurred” and “criminal negligence.” We cannot know what import if any the jury may have given to such statements in the absence of a proper charge defining the elements of rape. Further, “[t]he crime of rape is defined and limited under [OCGA § 16-6-1]. We will not presume, in the absence of a proper instruction from the court, that a jury is cognizant of the legal definition of rape and will apply the appropriate legal standard in determining whether the defendant had the specific intention to commit rape.” Powers v. State, supra.

Therefore, we conclude that without a proper instruction on the definition of the elements of rape, the charge was substantially in error, was harmful as a matter of law, and that appellant was deprived of his right to a fair trial. Barnett v. State, 178 Ga. App. 685, 686 (344 SE2d 665). Accordingly, we are required by OCGA § 5-5-24 (c) to consider the error, Christopher v. State, 190 Ga. App. 393, 397 (379 SE2d 205); Laney v. State, 184 Ga. App. 463 (361 SE2d 841); Gaines v. State, 177 Ga. App. 795, 800 (341 SE2d 252) (physical precedent only), and we must reverse and order a new trial.

2. In view of our disposition of the matters asserted in the first and second enumerations of error in Division 1 above, we need not consider the other errors enumerated.

Judgment reversed.

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


text:
    A89A0708.
    INGRAM v. THE STATE.
    (384 SE2d 262)
   Birdsong, Judge.

Appellant, Bobby Lee Ingram, appeals his conviction and sentence of selling cocaine. Appellant was charged in a one-count indictment in that he did, on November 22, 1987, in Charlton County, unlawfully deliver, distribute, and sell a controlled substance, to-wit: cocaine, a Schedule II substance, to Ricky Sirmans, in violation of the Georgia Controlled Substances Act. Appellant was found guilty of this count by the jury.

Deputy Sheriff Rick Sirmans testified that he left the sheriff’s office at about 9:15 p.m. on November 22, 1987, and drove directly to a place known as “the sticks.” He did not know the name of the street. He was flagged down by an individual. Thereafter, appellant asked him “what did I need.” Deputy Sirmans told appellant he needed a “twenty dollar rock.” Appellant gave Deputy Sirmans a twenty dollar rock, and Deputy Sirmans gave appellant $20 in return. Deputy Sirmans made an in-court identification of appellant. This twenty dollar rock was later found during laboratory testing to contain a form of cocaine, known commonly as “crack.”

On cross-examination Deputy Sirmans testified that he believed the incident occurred on November 22, 1987, at approximately 9:25 p.m. and that he believed it was on a Saturday, but he is not sure. He also testified that the appellant “looks like” the same man who sold him the twenty dollar rock. Deputy Sirmans then replied to questions as follows. “Q. You can’t say for sure that this is the same man, can you? A. Yeah. Q. You can say that? A: Uh’huh.” Deputy Sirmans also testified that he believed the incident occurred on “Oak Street” in the “sticks,” but he is not familiar with local streets. Appellant’s counsel also asked Deputy Sirmans whether a tape recording had been made of the incident and was given an affirmative reply. However, photographs, videotapes and fingerprints were not taken.

On re-direct examination, Deputy Sirmans testified, without objection from appellant, that the recording was made on a “tape recorder,” the recorder could record sounds and voices, that he knew how to operate it and had been shown how to do so, that he had operated tape recorders similar to it before; that he thereafter listened to a portion of the tape, the recording was understandable, you could identify the various speakers thereon, the tape was about fifteen minutes long, while in his custody nothing on the tape had been deleted or altered, that no persons speaking on the tape were doing so as a result of any duress or threats, and that the tape was brought back and given to Deputy Cahall. Immediately following this testimony, redirect examination terminated. Appellant’s counsel made no motions to strike this testimony, motions for mistrial or requests for curative instructions, and waived re-cross examination.

The State called Deputy Cahall as a witness. He testified that State’s Exhibit 1, an envelope containing rock cocaine, was received from Deputy Sirmans on November 22 and placed in the property room. Deputy Cahall subsequently took the envelope and its contents to the crime laboratory. Appellant did not object to this testimony. Deputy Cahall identified State Exhibit 3, the tape and recorder referred to by Deputy Sirmans that was given to Deputy Cahall on November 22, 1988. Deputy Cahall characterized the tape as being of poor quality with some voices hard to distinguish. Appellant did not object to this testimony. Subsequently when the State attempted to play the tape in evidence, appellant objected to the playing of the tape as an alleged statement of the defendant and because the State had not previously provided appellant with a copy thereof. The State withdrew its tender. Appellant thereafter did not renew any request for production of the tape. Deputy Cahall also testified that he properly warned appellant of his Miranda rights, which appellant waived and thereafter made a voluntary statement. The statement was admitted in evidence. In the statement, appellant admitted to the use of drugs but denied any drug sales. The State introduced the statement to show appellant’s state of mind. Appellant’s objection that the statement was not relevant and “prejudicial” was overruled. Deputy Cahall on re-cross examination testified that the drug buy was to have taken place on “Long Street” in “the sticks.”

Appellant’s wife, brother, and mother testified in corroboration of appellant’s alibi defense. Appellant testified in his own behalf, asserted an alibi defense, and denied selling cocaine. Held:

1. Appellant’s enumerations of error A, B, C, D, E, and F are without merit. On appeal the evidence must be construed to uphold the verdict. Johnson v. State, 231 Ga. 138 (1) (200 SE2d 734); Harris v. State, 188 Ga. App. 795 (374 SE2d 565). Appellate courts do not weigh the evidence or determine the witness credibility. Banks v. State, 185 Ga. App. 851 (3) (366 SE2d 228). Review of the transcript in a light most favorable to the jury’s verdict “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offense] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State, 257 Ga. 735 (2) (363 SE2d 257).

2. Appellant asserts that it was error for the court to admit the testimony of Jeff Cahall, because he could not link the alleged crack cocaine to the defendant, Bobby Lee Ingram.

Appellant did not object at trial to the testimony of Deputy Ca-hall on these grounds. “If counsel desires to preserve an objection upon a specific point for appeal, the objection must be made at trial upon that specific ground.” Ray v. State, 187 Ga. App. 451, 452 (370 SE2d 629). Accordingly, “[t]here is nothing for us to review since appellant failed to make his objection at trial on the specific ground he attempts to raise on appeal.” Weaver v. State, 179 Ga. App. 641 (7) (347 SE2d 295).

Moreover, questions of relevancy of evidence, including the issue of materiality, are for the trial court to decide, and this court will not interfere unless it is shown that the trial court abused its discretion. Garner v. State, 83 Ga. App. 178, 184 (63 SE2d 225). “Admission evidence is a matter which rests largely within the sound discretion of the trial court and an appellate court will not interfere with its ings absent abuse of that discretion.” Whisnant v. State, 178 Ga. App. 742, 743 (344 SE2d 536). No such abuse exists in this case.

Decided July 10, 1989.

Floyd Mincey, for appellant.

Harry D. Dixon, Jr., District Attorney, George E. Barnhill, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Benham, Judge.

text:
    A89A0754.
    ASSOCIATES COMMERCIAL CORPORATION v. STOREY et al.
    (384 SE2d 265)
   Benham, Judge.

In a suit on a guaranty, a jury awarded appellant $8,281.24 principal and accrued interest and $4,839.27 post-maturity interest, and the trial court entered judgment accordingly. Appellant appeals from the trial court’s grant of a directed verdict to appellees/debtors on appellant’s claim for contractually authorized attorney fees.

Appellant and Transroad, Inc., executed a promissory note and security agreement obligating Transroad to repay $204,936. Under the terms of those documents, Transroad was to be in default if it failed to make its monthly payments to appellant or if it filed a petition in bankruptcy or sought other such relief. Transroad and its guarantors were obligated to pay the expenses of collection, including attorney fees of 20 percent of the amount due (or, if prohibited by law, such lesser amount as may not be so prohibited). Appellees David and Beverly Storey executed a continuing guaranty personally guaranteeing any and all indebtedness incurred by Transroad. Transroad defaulted when it failed to meet its monthly payments under the note and security deed and subsequently filed a petition for voluntary bankruptcy. Appellant then accelerated Transroad’s indebtedness and sought to collect the indebtedness from appellees as guarantors.

Appellant filed the instant lawsuit against appellees, claiming entitlement under their continuing guaranty to “all amounts owed by Transroad under the Note & Security Agreement, including without limitation, all principal, accrued interest, late charges and attorney’s fees and expenses.” Appellant noted in paragraph 11 of its complaint that the outstanding principal balance and accrued interest on the date Transroad filed its bankruptcy petition was $65,969.65. In paragraph 12 of its complaint, appellant gave appellees notice under OCGA § 13-1-11 that the indebtedness had matured; that the note and security agreement provided for the payment of attorney fees by appellees if the indebtedness was collected by or through an attorney; that the attorney fee provision was going to be enforced; and that appellees had ten days from the date of service of the complaint/notice to pay the principal, accrued interest, and late charges in order to avoid payment of attorney fees.

Several months after the complaint was filed, representatives of appellant and Transroad negotiated an arrangement for Transroad to pay its debt determined at that time to be approximately $54,000. Appellant then amended its complaint by deleting the allegation that $65,969.65 was the outstanding balance of principal and interest due on the date of Transroad’s default. Pursuant to the negotiated arrangement, Transroad made three payments totaling $43,000 to appellant, leaving an indebtedness of approximately $10,000 in September 1988, the time of trial on appellant’s complaint.

During the jury trial both parties moved for a directed verdict on appellant’s claim for attorney fees under OCGA § 13-1-11. The trial court denied appellant’s motion and granted that of appellees, concluding that there had been no showing that the amounts paid by Transroad after the complaint was filed and before trial were “collected by or through an attorney,” and because the amount demanded when the OCGA § 13-1-11 notice was given was admitted by appellant to have been wrong and the correct amount was not readily ascertainable.

“Obligations to pay attorney’s fees upon any note or other evidence of indebtedness, in addition to the rate of interest specified therein, shall be valid and enforceable and collectible as part of such debt if such note or other evidence of indebtedness is collected by or through an attorney after maturity. . . .” OCGA § 13-1-11 (a). While an attorney employed by appellant filed a complaint against appel-lees, conducted discovery, and participated in a trial in an effort to recover the indebtedness, there was no evidence that the amounts Transroad paid to appellant pursuant to the negotiated agreement were “collected by or through an attorney.”.It is undisputed, however, that the attorney’s efforts resulted in the $8,281.24 judgment against appellees for principal and interest. Therefore, appellant may have been entitled to an attorney fee award based on that amount. Thus, we must examine the trial court’s conclusion that appellant’s inclusion in its complaint of an incorrect statement of the amount owed by Transroad precluded appellant from obtaining an award of attorney fees.

We note initially that while appellant’s original complaint contained an incorrect statement of the amount due, that statement was not contained in the portion of the complaint included as the statutory notice. OCGA § 13-1-11 (a) (3) requires the creditor to notify the debtor in writing after the debt has matured that the contractual provisions regarding payment of attorney fees in addition to the principal and interest will be enforced and that the debtor has ten days from the receipt of the notice to pay the principal and interest without the attorney fees. General Elec. Credit Corp. of Ga. v. Brooks, 242 Ga. 109, 119 (249 SE2d 596) (1978). The statute does not require disclosure of the amount of principal and interest the debtor must pay to avoid the assessment of attorney fees. Kennedy v. Brand Banking Co., 152 Ga. App. 47 (5) (262 SE2d 177) (1979); Franco v. Bank of Forest Park, 118 Ga. App. 700 (1) (165 SE2d 593) (1968). Therefore, paragraph 12 of appellant’s complaint was a sufficient notice. The result would be the same even if the improper amount had been contained in the statutory notice. See Carlos v. Murphy Warehouse, 166 Ga. App. 406 (2) (304 SE2d 439) (1983). Thus, it was error to grant appellees’ motion for a directed verdict on appellant’s claim for attorney fees. However, the trial court did not err in denying appellant’s motion for a directed verdict, since appellant had sought an award based on an indebtedness of approximately $54,000. Therefore, the trial court’s entry of judgment on the jury verdict is affirmed on the condition that appellant be awarded attorney fees based on the jury’s verdict of $8,281.24. See David v. ITT Diversified Credit Corp., 174 Ga. App. 910 (2, 3) (332 SE2d 8) (1985).

Decided July 10, 1989.

Dillard, Greer, Westmoreland & Wilson, Shawn D. Stafford, Frank L. Wilson III, for appellant.

John T. Avrett, R. Mike Withrock, for appellees.

Since paragraph 12 of appellant’s original complaint complies with OCGA § 13-1-11 (a) (3), we need not address appellees’ contention that appellant’s amendment to its complaint did not comply with the statutory requirements.

Judgment affirmed on condition.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A0781.
    CREWS et al. v. DOE.
    (384 SE2d 267)
   Benham, Judge.

Appellants brought suit against a named defendant and against John Doe to recover damages incurred in an automobile collision. Ap-pellees are appellants’ uninsured motorist carriers who were served and who answered in the name of John Doe. After appellants settled with the named defendant and allegedly gave a covenant not to sue, one appellee amended its answer to claim a credit against any verdict for the amount paid to appellants by the named defendant. Appellants then moved the trial court for summary judgment on the issue of appellees’ entitlement to the credit. This appeal is from the denial of that motion. We affirm.

Relying on Jones v. Cotton States Mut. Ins. Co., 185 Ga. App. 66 (1) (363 SE2d 303) (1987), appellants insist that appellees are not entitled to write off any part of their coverage because of the settlement with the other party. As far as that argument goes, it is correct. It does not, however, cover what appellees argue they are seeking in this case. Appellees concede that their coverage may not be reduced by any settlement, but they insist that all they seek in this case is the opportunity to plead and prove appellants’ previous recovery of part of their damages. We agree that they should be able to do so.

As uninsured motorist carriers, appellees are entitled to answer in John Doe’s name and to present any defense which would be available to Doe. Doe v. Moss, 120 Ga. App. 762 (1) (172 SE2d 321) (1969). Appellees, therefore, are entitled to be treated as joint tortfeasors with the named defendant.

“[T]here should be but one satisfaction of a single injury. Stated otherwise, in a tort action, compensation, and not enrichment, is the basis for the award of damages.” Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36, 58 (60 SE2d 770) (1950). Appellants “upon the principles of equity and good conscience [are] not entitled to recover twice for the same damages, and since the compensation [given them by the named tortfeasor] was clearly intended to compensate [them] in part for the same damages which [they are] seeking to recover in this action, [appellees] could plead the payment of same in reduction or avoidance of [appellants’] right of recovery but not as an absolute bar to [their] right of action. It would thus be a question for the jury’s determination, in the event they found for [appellants], as to whether) or not [appellants were] entitled to additional remuneration from the i [unknown motorist] in order to be fully compensated for [their damages]. . . . [T]he execution of a covenant not to sue one of two joint tortfeasors . . . does not constitute a release of the other tortfeasor, ‘and does not bar a proceeding against him, but any sum receivedl from the first may be pleaded and proved in reduction of the amountl of damages to be awarded by the jury.’ [Cit.]” Trice v. Wilson, 113 Ga. App. 715 (2) (149 SE2d 530) (1966).

It may be seen, therefore, that the ruling appellants sought, thatl appellees are not entitled to any credit for the amount of appellants’! settlement with the named tortfeasor, would have been contrary toj the authorities cited above. There was no error in denying their mo-j tion for summary judgment.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.

Decided July 10, 1989.

Edgar-L. Crossett III, for appellants.

Murray, Temple & Dinges, William D. Strickland, W. C. Brooks, James T. Budd, for appellee.


text:
    A89A0815.
    ELY v. THE STATE.
    (384 SE2d 268)
   Birdsong, Judge.

Appellant, Junior Walter Ely, appeals his conviction and sentence of rape.

Appellant was convicted of raping a mentally retarded neighbor girl. At the time of the incident, the girl was age 14 chronologically. She is classified as being “moderately mentally handicapped,” “moderately retarded,” or of “significantly impaired intellectual ability in the range of mild mental retardation.” She functions at the level of a person between the ages of 5 and 10. She has a verbal IQ of 65; a performance IQ of 58 and a full scale IQ of 61. The appellant has a verbal IQ of 73; a performance IQ of 72; and a full scale IQ of 72. He is classified as being in the lower portion of the borderline range. His mental age is 11.2.

Appellant judicially admitted that he had sexual intercourse with the girl on two occasions when she was visiting his home. He maintained that she forced herself upon him and requested that he have sexual intercourse with her. The girl testified she had been hurt real bad by the appellant, but could not specifically describe how or where she was hurt. She also testified that he unzipped her blue jeans and that it was his idea to put his private parts inside her. She hollered during the incident. Held:

1. Appellant asserts that the trial court erred in refusing to permit an independent psychological examination of the alleged victim by an expert of appellant’s choosing. The trial court in response to appellant’s motion for independent psychological examination appointed a psychologist to conduct an examination of the girl, subject to consent by her guardian ad litem who also was appointed by the trial court. The guardian ad litem consented and the examination was conducted. The trial judge offered to call the psychologist as a court witness and to allow both sides the right of cross-examination. Appellant expressly requested that the State call the psychologist as its witness and this procedure was utilized. Appellant now contends the court should have appointed a psychologist of his choosing.

The trial judge has inherent power to supervise the course of the trial and to prescribe the manner in which court business will be conducted. Johnson v. State, 254 Ga. 591 (11) (331 SE2d 578); Jackson v. State, 154 Ga. App. 367 (2) (268 SE2d 418). As a general rule, the “ ‘granting or denial of a motion for appointment of expert witnesses lies within the sound discretion of the trial court,’” and “‘[u]nless there has been an abuse of discretion, the trial court’s ruling will be upheld.’ ” Roseboro v. State, 258 Ga. 39 (3) (a) (365 SE2d 115). Not even an indigent defendant has a constitutional right to compel the choosing of an expert of his personal liking. See generally Ake v. Oklahoma, 470 U. S. 68, 83 (105 SC 1087, 84 LE2d 53); Thornton v. State, 255 Ga. 434 (1) (339 SE2d 240).

Sabel v. State, 248 Ga. 10 (282 SE2d 61) and Patterson v. State, 238 Ga. 204 (232 SE2d 233) are distinguishable from this case.

We find that the trial court did not abuse its discretion in this case in refusing to order an independent psychological examination of the alleged victim by an expert of appellant’s own choosing, especially since the victim was examined by a court-appointed expert whose professional qualifications, fairness and impartiality were not effectively challenged.

2. Appellant asserts that the trial court erred in not allowing defense counsel to consult with the court-appointed expert prior to examination of the alleged victim. This assertion is without merit. Nothing prevented the appellant from submitting questions, documents or other matter to the trial court with the request that such matters be forwarded for consideration by the expert prior to the examination. Moreover, nothing prevented appellant’s counsel from contacting the expert after the examination and requesting reconsideration based on new information tendered. Further, the expert in this instance testified and was subject to a thorough and sifting cross-examination, and any matters not duly considered by him could have been fully explored during cross-examination. The record also reflects that the parties and the trial judge apparently were in agreement that the expert could have access to “any previous reports of examination of this child.” The trial court has inherent discretion in directing and limiting the examination of witnesses. Flourney v. State, 257 Ga. 265, 266 (357 SE2d 574). Likewise, the trial court can control counsels’ contacts with a court-appointed expert before trial to insure that such witnesses’ impartiality is preserved. The trial court did not abuse its discretion in this matter.

3. Appellant asserts that the trial court erred in allowing the expert witness to testify as to the ability of the alleged victim to give consent, as that was the ultimate issue to be decided by the jury and was also a legal term not within his expertise.

Expert opinion testimony, even as to the ultimate issue to be decided by a jury, “ ‘is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman.’ ” State v. Butler, 256 Ga. 448 (2) (349 SE2d 684); Palmer v. State, 186 Ga. App. 892 (4) (369 SE2d 38). Whether the issue of consent is one beyond the ken of the average layman depends upon the existing circumstances in a given case. We are satisfied that the capability of this particular mentally retarded person to give a valid consent to an act of sexual intercourse is a matter not within the ken of the average layman. The case is distinguishable from Nichols v. State, 177 Ga. App. 689 (340 SE2d 654).

Appellant failed to make a timely specific objection on the record concerning the issue of whether consent is a legal term not within the expert’s area of expertise. As to this issue, “[t]here is nothing for us to review since appellant failed to make his objection at trial on the specific ground he attempts to raise on appeal.” Weaver v. State, 179 Ga. App. 641 (7) (347 SE2d 295).

Appellant’s third and fourth enumerations of error are without merit.

4. Appellant asserts that the trial court erred in refusing to allow the expert witness called by the defense to state his opinion as to the ability of persons of low IQ to give consent.

The appellant, during the testimony of his expert psychologist, asked his opinion “whether or not a person will be capable of consenting to sexual activity in the range of seventy to eight-four.” (Emphasis supplied.) The State objected to the question and the trial court sustained the objection, indicating that the issue of ability to consent was a jury issue.

We have consistently held that “ ‘[a] correct decision of a trial court will not be reversed, regardless of the reasons given therefor.’ ” Tony v. Pollard, 248 Ga. 86 (1) (281 SE2d 557); National Consultants v. Burt, 186 Ga. App. 27, 33 (366 SE2d 344), writ vacated, 258 Ga. 645 (374 SE2d 532).

In this instance, we find that the proffered opinion evidence was not logically relevant to any viable issue in this case. The victim is the party whose consent was contested in this rape case. The question as posed had no probative connection with the victim, as the record establishes that her IQ scores did not fall within the range of 70-84. Clearly then this question was intended to pertain to the appellant himself whose IQ scores were within this range. However, the perpetrator’s consent was not a viable issue in this case. In fact, appellant already had admitted in judicio that he had of his own volition twice committed the act of sexual intercourse with the girl. “ ‘Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court.’ ” Santone v. State, 187 Ga. App. 789, 792 (371 SE2d 428). Appellant has not shown how the trial court abused its discretion in refusing to admit this particular question as framed.

Moreover, assuming arguendo error occurred, we are satisfied, using the high probability test, that the refusal to admit opinion evidence regarding this particular question, as framed, was harmless error. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

5. Appellant enumerates as error that the trial court erred “in failing to make clear the legal meaning of the term consent” on its recharge to the jury. The appellant then argues that the trial court did not inform the jury adequately that there was no issue of “knowledgeable” consent.

At trial, appellant objected both to the initial consent charge and to the re-charge on the specific ground that use of the word “intelligent” to indicate that the consent must be intelligent or that the choice made must be an intelligent choice, was misleading to the jury. “ ‘The . . . rule is that the scope of review is limited to the scope of the ruling in the trial court as shown by the trial record and cannot be enlarged or transformed through a process of switching, shifting, and “ ‘mending your hold.” ’ ” Wilson v. State, 145 Ga. App. 315, 323 (244 SE2d 355). “ ‘If counsel desires to preserve an objection upon a specific point, the objection must be on that specific ground’. . . . [A]n appellate court may not consider objections to evidence not raised at trial [as] there is nothing for this court to review.” Frymyer v. State, 179 Ga. App. 391 (3) (346 SE2d 573). Thus, appellant’s assignment of error, as enumerated, provides nothing for us to review.

Moreover, we are satisfied that the trial court correctly instructed the jury that the assent or dissent to the sexual intercourse is that of an “intelligent assent or dissent.” See generally Morrow v. State, 13 Ga. App. 189 (2) (79 SE 63); 7 EGL, Criminal Law, § 127. As stated in Whitaker v. State, 199 Ga. 344 (1) (34 SE2d 499), “[c]arnal knowledge of an imbecile female, who is mentally incapable of giving an intelligent assent or dissent and to exercise judgment, constitutes rape.” This principle equally applies to a female victim, who due to the degree of mental retardation suffered, is incapable of giving an intelligent assent or dissent and to exercise judgment. We are further satisfied that neither the court’s original charge nor re-charge as to consent was misleading to the jury.

6. Appellant asserts that the trial court erred in denying his motion for directed verdict of acquittal. “[A] motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311).

“ ‘When the victim is physically or mentally unable to give consent to the act [as defined in Division 5, above], as when she is [sufficiently] intoxicated, drugged, [mentally retarded], or mentally incompetent, the requirement of force is found in constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant.’ ” Drake v. State, 239 Ga. 232, 234 (236 SE2d 748).

Decided July 10, 1989.

William H. Newton III, for appellant.

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

Review of the transcript in a light most favorable to the jury’s verdict “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offense] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State, 257 Ga. 735 (2) (363 SE2d 257).

7. Appellant asserts that the trial court erred in allowing the girl’s mother to testify as to the psychological effect of the act on the alleged victim. The State asked the mother whether the daughter had gotten better or worse since the incident. The mother responded that the incident “affected her nerves. She just gets raving.”

We find the cases of Kennard v. State, 180 Ga. App. 522 (349 SE2d 470) and Sanborn v. State, 159 Ga. App. 608 (284 SE2d 110) to be distinguishable.

Resolution of this issue is controlled by the precedent of Toole v. State, 146 Ga. App. 305 (8) (246 SE2d 338). In Toole, we held that “[u]nder the rules of relevancy . . . the trial court did not err in admitting testimony concerning the victim’s inability to sleep immediately following the incident. While the probative value of such testimony may be doubtful, it is of at least some evidentiary value as tending to prove force and lack of consent, issues left to the determination of the jury where the defendant alleged consent by the victim.” Likewise, we find that this evidence of the victim’s ravings and the effect of her nerves at least had some evidentiary value, however slight, as tending to prove force and lack of consent.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    A89A0879.
    DELTA AIR LINES, INC. v. VAN DIVIERE.
    (384 SE2d 272)
   Sognier, Judge.

Cheryl Van Diviere brought a personal injury action in Fulton County Superior Court against Delta Air Lines, Inc. The suit proceeded to trial but the jury was unable to return a verdict in favor of either party and a mistrial was declared. Van Diviere thereafter voluntarily dismissed her suit pursuant to OCGA § 9-11-41 (a) and refiled it in Fulton County State Court. The superior court denied Delta’s objection to Van Diviere’s voluntary dismissal and this appeal ensued.

Decided July 10, 1989.

Powell, Goldstein, Frazer & Murphy, Jerry B. Blackstock, Mark G. Trigg, for appellant.

Bedford, Kirschner & Venker, Andrew R. Kirschner, Thomas J. Venker, for appellee.

Appellant contends the superior court’s order was erroneous because appellee could not voluntarily dismiss her case without a court order under OCGA § 9-11-41 (a). OCGA § 9-11-41 (a) provides in relevant part that “an action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case. After the plaintiff rests his case, permission and an order of the court must be obtained before dismissal.” Here, because the jury was not able to reach a verdict in the first trial, a second trial was necessary, with the result that the case was still pending. Willis v. Hill, 116 Ga. App. 848, 872-873 (6) (159 SE2d 145) (1967), rev’d on other grounds, 224 Ga. 263 (161 SE2d 281) (1968); see also Wade v. Penn, 88 Ga. App. 20 (1) (75 SE2d 845) (1953). Thus, we agree with the superior court that the practical effect of the mistrial was to return the parties to a pre-trial status. Because “the terminology, ‘before the plaintiff rests his case’ [in OCGA § 9-11-41 (a)] obviously has reference ... to the actual trial of a case rather than to [matters prior to trial],” Muhanna v. O’Kelley, 185 Ga. App. 220, 221 (363 SE2d 626) (1987), and because the second trial of appellee’s suit in superior court had not commenced at the time ap-pellee voluntarily dismissed her suit, we find no error in the superior court’s ruling that appellee was statutorily entitled to dismiss her suit without the court’s permission, thereby denying appellant’s objection to that dismissal. See generally id. Nothing in Griggs v. Columbus Bank &c. Co., 188 Ga. App. 741, 743 (374 SE2d 347) (1988), cited by appellant, intimates a different result since an “untenable position” faced by a plaintiff, as referenced therein, clearly encompasses a situation where, as asserted by appellee in her brief, the rescheduling of a case on the general trial calendar docket may lead to a prolonged and “untenable” delay before the case is retried.

Judgment affirmed.

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


text:
    A89A0962.
    GRANT v. JONES et al.
    (384 SE2d 434)
   Sognier, Judge.

Eugene Grant, Jr. brought suit against Thomas Jones, Sheriff of Glynn County, and Randall Garner, a county detention center officer, for damages allegedly incurred when the officials compelled Grant to wear prison clothing to his arraignment hearing. The parties filed cross-motions for summary judgment, and the trial court granted the defendants’ motion and denied Grant’s motion, whereupon Grant filed this appeal.

The record reveals that appellant was arraigned in Glynn County on March 3, 1987. Although the parties dispute the exact makeup of appellant’s clothing, they agree that he was wearing clothes issued by the Glynn County Jail during the proceeding. Appellant makes no objection to the clothing he wore when he was tried before a jury em-panelled on March 16, 1987, which found him guilty of certain criminal charges on March 19th. The assistant district attorney who prosecuted appellant testified by affidavit that the jury for appellant’s trial was not selected from the prospective jurors who were present in the courthouse on the day of appellant’s arraignment.

While Georgia courts have long recognized the right of a criminal defendant to appear at trial in civilian clothes rather than in prison garb, see, e.g., Krist v. State, 133 Ga. App. 197 (1) (210 SE2d 381) (1974), that right has never been extended to a pretrial proceeding conducted by the trial judge with no jurors present, and we decline to do so now. The State has rebutted appellant’s allegation that the jurors on his panel were in the courthouse during his arraignment, and thus there was no threat to appellant’s right to be presumed innocent. See Pike v. State, 169 Ga. App. 358, 359 (312 SE2d 808) (1983), rev’d on other grounds, 253 Ga. 304 (320 SE2d 355) (1984). Starr v. State, 209 Ga. 258 (71 SE2d 654) (1952), cited by appellant, is inapposite because in that case the defendant had been manacled during trial. Also, to the extent that Starr can be construed to apply to arraignment proceedings, that portion of the decision was based upon a version of former Ga. Code Ann. § 27-1401 which was wholly superseded by Ga. Laws 1966, p. 431, § 2.

Appellant also contends that the trial court improperly construed his complaint to exclude certain other claims which he now urges this court to consider. However, the record discloses that appellant did not present these arguments to the trial court, and “[i]ssues not raised in the court below may not be raised for the first time on appeal. [Cits.]” Mapp v. Drake, 178 Ga. App. 830, 831 (344 SE2d 682) (1986). Accordingly, we find no error in the grant of summary judgment to appellees. See generally id. For the same reasons, we find the trial court did not err by denying appellant’s motion for summary judgment, as appellant clearly was not entitled to judgment as a matter of law.

Decided July 10, 1989.

Eugene Grant, pro se.

Dickey, Whelchel, Brown & Readdick, David C. Will, for appel-lees.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A89A1065.
    LEROUX v. AVERA.
    (384 SE2d 434)
   Banke, Presiding Judge.

This appeal arises from a garnishment action filed by the appel-lee in the State Court of Glynn County to recover child-support ar-rearages allegedly owed by the appellant pursuant to the terms of a divorce decree. Part, but not all, of the arrearage sought to be recovered in the garnishment action had previously been reduced to judgment in a contempt action filed by the appellee in superior court. The court ruled in the present case that, as of the date the summons of garnishment was filed, the appellant was indebted to the appellee for the amount of that arrearage, plus the arrearage which had accrued since then, plus judgment interest on both categories of arrearage, calculated at the rate of 12 percent per year pursuant to OCGA § 7-4-12. By mathematical calculation, it is apparent from the court’s order that the total amount of such interest included in the judgment was $25,605.79. We granted this discretionary appeal to consider the appellant’s contention that this award of interest was excessive to the extent that it was calculated upon that portion of the arrearage which had accrued subsequent to the entry of the contempt judgment. Held:

“The rule in this state, as applied in Berman v. Berman, 231 Ga. 723 (6) (204 SE2d 124) (1974), is that in a proceeding to hold a party in contempt for failure to make alimony and child-support payments under a divorce decree, the court is vested with discretion in determining whether interest should be added to the arrearages found to be due.” Turner v. Turner, 251 Ga. 435 (306 SE2d 650) (1983). Accordingly, it has been held that judgment interest on a child-support arrearage must itself be reduced to judgment in a contempt proceeding in order to be recoverable. Id. at 436. That being so, we reject the appellee’s contention that such interest is recoverable as a matter of right in a garnishment action or other proceeding seeking direct execution of the divorce decree, regardless of whether it has previously been reduced to judgment in a contempt proceeding. Otherwise, a claimant seeking to recover child-support or alimony payments under a divorce decree would be able to circumvent an exercise of discretion by a superior court on the interest issue by the simple expedient of enforcing the decree directly against the judgment debtor’s assets. With respect only to the interest calculation made by the lower court in the present case, we accordingly vacate the judgment appealed from and remand the case with direction that judgment interest be calculated solely on that portion of the child-support arrearage previously reduced to judgment in the contempt proceeding.

Decided July 10, 1989.

Coleman & Dempsey, R. Peter Catlin III, for appellant.

W. N. Little, for appellee.

Judgment affirmed in part and vacated and case remanded with direction in part.

Sognier and Pope, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A89A1111.
    ALEXANDER v. THE STATE.
    (384 SE2d 436)
   McMurray, Presiding Judge.

Defendant appeals his conviction of the offense of simple battery. The sole enumeration of error contends the trial court “erred in overruling the amended Motion for New Trial in that the State was precluded from trying [defendant] in Case No. 87-D-2580-1 [the case sub judice] after the disposition of the same facts and with the same witnesses in Case No. 86-D-2148-1 on October 7, 1987.” Held:

Pretermitting any issues which may arise from defendant’s failure to raise the issues argued on appeal by a timely and appropriate method or to provide a record fully supporting his factual assertions, we find no error in the denial of defendant’s amended motion for new trial and affirm defendant’s conviction. An order of nolle prosequi was entered in the earlier simple battery prosecution (86-D-2148) on October 7, 1987, due to the failure of both prosecution and defense witnesses to appear for trial. A defendant may be reaccused within six months after the entering of a nolle prosequi. OCGA § 17-3-3; Hodges v. State, 214 Ga. 614 (1) (106 SE2d 795); Jackson v. State, 140 Ga. App. 288, 289 (1) (231 SE2d 805). The accusation in the case sub judice was entered well within this time limit.

Defendant contends that the prosecution in the case sub judice is barred by OCGA § 16-1-8 (b) (1). Apparently, defendant contends that the prior case resulted in either a conviction or an acquittal.

A nolle prosequi does not adjudicate either innocence or guilt of the accused unless the accused has been placed in jeopardy. See Hunter v. State, 104 Ga. App. 576 (122 SE2d 172). A defendant is not placed in jeopardy until the jury has been impaneled and sworn. Turner v. State, 152 Ga. App. 354 (1) (262 SE2d 618). Apparently, no jury was impaneled and sworn in the prior prosecution at issue, therefore, the nolle prosequi is no bar to the prosecution of defendant in the case sub judice. Bowens v. State, 157 Ga. App. 334 (277 SE2d 326). Nor, since the prior prosecution had not gone to the jury, was defendant’s consent required for the entry of nolle prosequi in the prior prosecution. Fortson v. State, 13 Ga. App. 681 (79 SE 746).

Decided July 10, 1989.

Harrison & Harrison, G. Hughel Harrison, for appellant.

Gerald N. Blaney, Solicitor, for appellee.

Also, Day v. State, 163 Ga. App. 839 (296 SE2d 145), cited by defendant, must be distinguished on the facts since the earlier prosecution in that case was dismissed resulting in an absolute discharge and acquittal. Defendant’s motion to dismiss the earlier prosecution in the case sub judice was apparently never explicitly ruled on by the trial court, but perhaps implicitly denied by the entry of the nolle prosequi. In either event, it did not act as an acquittal and defendant has shown no error in its denial.

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    A89A1407.
    MILLER v. THE STATE.
    (384 SE2d 437)
   Deen, Presiding Judge.

Drug Enforcement Administration (DEA) agent Paul Markonni observed appellant Miller as he deplaned in Atlanta from a flight originating in Miami, Florida, a known “drug source” city. The agent noted certain features of Miller’s appearance and conduct which evoked in Markonni’s mind the “drug courier profile” developed by the DEA: coming from a “drug source” city, concealing the front of his body with an overcoat on his arm and a hanging shirt tail, and an inconsistent response to a call made by another agent to the Mobile, Alabama, call-back number obtained from airline personnel (“Jim just stepped out”). Markonni and another law enforcement officer, neither of them wearing a uniform or displaying weapons, approached appellant on the public concourse, presented credentials, and asked to speak with Miller. Miller agreed, and Markonni asked to see his ticket, which was a one-way ticket purchased with cash in the name of “Jim Miller.” The officers learned that Miler had no checked baggage and then asked for identification; Miller said he had none with him. All of the above discoveries intensified the officers’ suspicions that Miller was a courier.

Upon being asked for permission to conduct a search, Miller agreed, and en route to the designated private area the officer noticed protruding from Miller’s back pocket an address book, which turned out to contain a driver’s license in the name of “Willie Earl Miller.” Miller then equivocated concerning his prior consent to the search, and Markonni arrested him for giving a false name with the intent to mislead. See OCGA § 16-10-25. A search incident to the arrest revealed the presence of more than 140 grams of cocaine.

At the time of the arrest Miller had protested that he always went by the name “Jim Miller” rather than “Willie Earl Miller.” At the hearing on the motion to suppress the court found that, although “Jim Miller” might have been a lifelong nickname, Miller’s refusal to produce identification in any name was evidence of an intent to mislead the officers.

In a stipulated bench trial Miller was acquitted on the false name charge but convicted on the cocaine charge. On appeal he enumerates as error the denial of his motion to suppress. Held:

As Agent Markonni, the “grand old man” of Atlanta airport drug cases, acknowledged at the hearing on the motion to suppress, very few, if any, of the single characteristics that compose the “drug courier profile” would alone be sufficient to constitute probable cause for arrest. “Probable cause[, however,] need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction.” Cook v. State, 136 Ga. App. 908, 909 (222 SE2d 656) (1975).

Review of the record in the instant case indicates that neither the fact that appellant was arriving from Miami, nor that his abdomen was covered by both a shirt and a long coat, nor even that the respondent at the call-back number either knowingly or innocently gave erroneous information as to Miller’s whereabouts, would alone rise to the level of probable cause. Nor, in our opinion, would the alleged providing of an incorrect name, given the circumstances in the instant case. Likewise, a one-way ticket paid for in cash can be innocuous. Construing the evidence in favor of the verdict, however, as we are bound to do, and bearing in mind that determination of the witnesses’ credibility is the prerogative of the factfinder, whose decision must not be disturbed unless clearly erroneous, we must agree that in the totality of the circumstances there was probable cause for arrest. The search incident to arrest was therefore valid. The trial court did not err in denying the motion to suppress, and appellant’s enumeration of error is without merit.

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Decided July 10, 1989.

William E. Frey, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.


text:
    A89A1497.
    DAVIS v. THE STATE.
    (384 SE2d 275)
    Decided July 10, 1989.

      Murray M. Silver, for appellant.

      Robert E. Keller, District Attorney, Clifford A. Sticker, Assis

      tant District Attorney, for appellee.
   Deen, Presiding Judge.

This drug bust took place in the Atlanta Hartsfield International Airport on August 4, 1988, when the appellant was caught concealing almost one kilogram of cocaine under her brassiere and in the crotch area of her pants. Following a bench trial, she was convicted of trafficking in cocaine, and this appeal resulted.

The sole contention on appeal is that the trial court erred in denying the appellant’s motion to suppress the evidence seized during the search of her person at the airport. The fact that she came from the drug source city of Miami, that she carried a tote bag apparently containing little or no clothing, and that there was something misshapen about her large breasts aroused the suspicions of DEA agent Paul Markonni and a City of Atlanta police officer assigned to the DEA drug task force. When approached by Markonni and the officer, the appellant produced her one-way plane ticket and her identification showing her real name, and, according to the police officer, consented to their request for permission to search her and her tote bag. The appellant denied such consent. Markonni searched the bag, while the officer searched the appellant and discovered the concealed cocaine.

A valid consent to a search eliminates the need for probable cause, and the trial court’s rulings on disputed facts and credibility are accepted by this court unless clearly erroneous. Borda v. State, 187 Ga. App. 49, 50 (369 SE2d 327) (1988). The trial court’s findings in this case were not clearly erroneous. The appellant’s reliance upon Rebeiro v. State, 186 Ga. App. 518 (367 SE2d 857) (1988), is misplaced, as that case did not involve a consent to search.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0045.
    A89A0046.
    ROWELL et al. v. PARKER et al. ISLAND ESTATES, LTD. et al. v. PARKER et al.
    (384 SE2d 396)
   Banke, Presiding Judge.

These two related cases arise from the appellants’ quest for rezoning of certain property which they own on Tybee Island, Georgia. Appellants Rowell and Marbach first petitioned for a change in the existing zoning of their property in 1987. The city council denied their application, and they appealed to the Superior Court of Chat-ham County. However, they subsequently dismissed that appeal and on the same day presented a second rezoning request to the council. The city council ultimately denied this request, also, whereupon Rowell and Marbach filed a three-count appeal to the superior court. In Count 1, captioned “Appeal to Superior Court,” these appellants sought review of the council’s denial of their second rezoning application. In Count 2, captioned “Renewal of First Appeal,” they sought to renew their appeal from the denial of their original application. In Count 3, captioned “Complaint for Damages,” they sought to recover damages against the mayor and city council for opposing their rezoning request and also to recover punitive damages against certain selected members of the council for their alleged wilful misconduct in voting against the request.

The month after the second Rowell-Marbach rezoning application was denied, the council denied a similar application for rezoning which had been filed by appellant Graham, who is also the attorney representing Rowell and Marbach in their rezoning pursuit. Acting in conjunction with Island Estates, Ltd., of which he is apparently the principal owner, Graham also filed an appeal to the superior court.

The appellees, consisting of the mayor and council members of the city, moved to dismiss the Graham appeal and Count 1 of the Rowell-Marbach appeal on the ground that the appellants had acted improperly in naming them as defendants in the action rather than naming the City of Tybee Island. The appellees also moved for dismissal of Count 2 of the Rowell-Marbach appeal, which purported to renew the appeal from the denial of the original rezoning application, on the ground that the prior appeal was not subject to renewal. The trial court granted both these motions, and the case is now before us pursuant to our grant of the appellants’ applications for discretionary appeal. See generally OCGA § 5-6-35 (a) (1). Held:

1. We disagree with the superior court’s conclusion that the appeals were subject to dismissal based on the appellants’ failure to name the City of Tybee Island as the proper “governing authority.” Pursuant to § 8 of the charter of the City of Tybee Island, Ga. L. 1970, p. 2080, the governing body of the city consists of the mayor and the members of the city council. Cf. Hanson v. Wilson, 257 Ga. 5 (2) (354 SE2d 126) (1987); Corey Outdoor Advertising v. Bd. of Zoning Adjustment of Atlanta, 254 Ga. 221 (3) (327 SE2d 178) (1985). We accordingly hold that the trial court erred in dismissing the appeals on this basis.

Decided June 19, 1989

Rehearing denied July 11, 1989

Michael H. Graham, for appellants.

Thomas J. Mahoney, Jr., Brent J. Savage, for appellees.

2. Appellants Rowell and Marbach contend that their appeal from the denial of their original rezoning request was subject to renewal pursuant to OCGA § 9-2-61 (a), which provides that when a case has been commenced within the applicable statute of limitation and the plaintiff discontinues or dismisses the action, it may be recommenced within six months, even if the limitation period has expired.

The requirement of OCGA § 5-3-20 (a) that appeals to superior court must be filed “within 30 days of the date the judgment, order, or decision complained of was entered” is not a statute of limitation but is jurisdictional in nature. See Taco Mac v. Atlanta Bd. of Zoning Adjustment, 255 Ga. 538 (340 SE2d 922) (1986). Thus, OCGA § 9-2-61 (a) has no applicability to the present situation, and the superior court did not err in dismissing Count 2 of the Rowell-Marbach appeal. Cf. Albert v. Bryan, 150 Ga. App. 649 (258 SE2d 300) (1979). This result is not affected by the fact that the trial court based its ruling on a determination that the parties to the “renewal” appeal were not substantially the same as the parties to the original appeal, since a ruling of the trial court will be affirmed if it is right for any reason. National Consultants v. Burt, 186 Ga. App. 27 (3) (366 SE2d 344) (1988).

Judgment affirmed in part and reversed in part in Case No. A89A0045. Judgment reversed in Case No. A89A0046.

Sognier and Pope, JJ., concur.