text:
    A99A1279.
    In the Interest of W. M. et al., children.
    (521 SE2d 230)
   McMurray, Presiding Judge.

The natural mother of W. M. and K. M. appeals from the judgment of the juvenile court terminating her parental rights. Viewed in the light most favorable to the juvenile court’s judgment, the record reveals the following chronology:

On June 13, 1995, the Department of Family & Children Services (“DFACS”) filed a petition with the Juvenile Court of Carroll County alleging that W. M., a minor male, and K. M., a minor female, were deprived due to the absence of proper parental care or control, subsistence and education as required by law. Temporary custody was placed with DFACS, and the Citizens Review Panel recommended the children continue in foster care, until March 25, 1997, when DFACS filed a complaint for termination of both natural parents’ parental rights. With respect to appellant, the natural mother, the complaint alleged she was unable to provide necessary parental control, in that she could not protect the children from inappropriate physical discipline by the father. It was further alleged that the mother would not agree to leave the father, and that both parents were noncompliant and uncooperative with the caseworker and failed to meet the goals of the case plan.

In support of the allegations, Dana Sharp, the DFACS case manager since November 1996, explained that since the children were initially placed in foster care, both parents had goals to “develop coping strategies to manage [the children’s] unruly behavior” while the parents learned to “release their feelings of frustration and anger in a non-threatening way.” The parents were to attend parenting classes, attend mental health counseling, have psychological evaluations and maintain visitation. Sharp informed both parents that the Citizens Review Panel was already recommending termination of parental rights by November 1996, “but there was still time to work on their case plan goals.” By then, appellant had begun seeing a Carroll County mental health counselor. In trying to locate the parents in order to reschedule a December visitation, Sharp was informed that appellant quit her job at the restaurant where she had been employed for four years. On December 12, 1996, the juvenile court ordered random drug tests of both parents, who became angry at this decision. Appellant canceled a scheduled visitation the next day and did not contact DFACS again until a hearing in May 1997, where appellant appeared and requested that Sharon Taylor, a relative in Ohio, be considered for placement of the two children. Pending the home evaluation of Sharon Taylor, appellant confirmed she had not submitted to a random drug test, claiming she was spending all her money on her car. Appellant missed a scheduled visitation in July 1997, because she had already moved to Ohio without informing her caseworker. In August, Sharp was informed that the Ohio home evaluation “had been denied.” Appellant has not had any contact with her children since November 1996. Despite working up to three jobs, she has never contributed to the support of the children and has never sent cards or presents.

According to the evaluation of R. Dwain Blackston, M.D., the child W. M. has an “attachment disorder, emotional immaturity, and . . . psychoenvironmental deprivation.” The child needs “a structured home environment and a structured special needs preschool.” The children have “made tremendous gains in their [foster] placement,” and in Sharp’s opinion, termination of parental rights is in the best interests of the children. Jeanette Smith, the foster mother, explained that when the children first came to her home, K. M. was normal, even very bright, but that W. M. had some behavioral problems. He was angry and violent and spoke in only two- or three-word sentences. In language skills, W. M. was two years behind his peers. But after therapy, W. M. is now “actually above his age level by one month.” His inappropriate expressions of anger have diminished although they remain.

Appellant testified she has left her husband (who is in jail for driving under the influence) and offered proof that she was drug-free. But appellant could not confirm her drug tests were random. She stopped attending counseling because she thought her parental rights had already been terminated.

The juvenile court terminated the parental rights of both the natural father and appellant. She appeals, urging the evidence is insufficient. Held:

1. The standard of review on appeal from a termination of parental rights is whether, after reviewing the evidence in the light most favorable to the juvenile court’s disposition, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody should be terminated. “On appeal, ‘this court neither weighs [the] evidence nor determines the credibility of witnesses; rather, we defer to the [juvenile] court’s factfinding and affirm unless the appellate standard is not met.’ ” In the Interest of R. D. S. P., 230 Ga. App. 205 (495 SE2d 867).

2. Termination of parental rights requires a clear and convincing showing that the children are deprived due to parental misconduct or inability which is likely to continue or is not likely to be remedied, thereby causing serious physical, mental, emotional, or moral harm to the children. In the Interest of R. D. S. P., 230 Ga. App. at 206, supra. Lack of proper parental control may be shown by evidence of the parent’s past physical, mental, or emotional neglect of the child or of another child. OCGA § 15-11-81 (b) (4) (B) (v). In addition, where the children are not in the custody of the parent whose rights are at issue, the juvenile court shall consider whether lack of proper parental care and control is demonstrated by proof that the parent, without justifiable cause, failed significantly for a period of one year or longer prior to the filing of the petition to terminate parental rights to communicate or make a bona fide attempt to communicate with the child or children in a meaningful supportive way or failed significantly to comply with a court-ordered plan designed to reunite the child with the parents. OCGA § 15-11-81 (b) (4) (C) (i) and (iii); In the Interest of K. S. W., 233 Ga. App. 144, 147-148 (1) (503 SE2d 376).

Decided July 26, 1999.

Doris C. Orleck, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, Price & Pyles, Thomas C. Pyles, for appellee.

In the case sub judice, the juvenile court was authorized to conclude that appellant’s complete failure to support her children or to maintain any consistent meaningful and supportive contact with them for the year preceding the filing of the termination complaint was neither reasonable nor justified. Also, appellant failed to comply with court-ordered random drug testing. There is an unappealed finding of deprivation regarding appellant’s inability to protect W. M. from the inappropriate physical discipline of appellant’s husband, and there is no assurance that appellant will not return to her husband after he gets out of jail. This evidence was sufficiently clear and convincing to authorize the juvenile court’s determinations that the children were deprived and that such deprivation was likely to continue or likely would not be remedied. In the Interest of J. M. B., 231 Ga. App. 875, 878 (1) (b), (c) (501 SE2d 259).

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A99A1565.
    MACON-BIBB COUNTY BOARD OF TAX ASSESSORS v. J. C. PENNEY COMPANY, INC.
    (521 SE2d 234)
   McMurray, Presiding Judge.

For the tax year 1996, J. C. Penney Company, Inc. (“the Taxpayer”) reported inventory and supplies for its store in Macon at a fair market value estimated to be $2,136,000, but the Macon-Bibb County Board of Tax Assessors (“the Board”) assessed the inventory at $3,738,053. The issue of fair market value was ultimately tried before a jury which set the value of the Taxpayer’s inventory at $2,976,000 for ad valorem tax purposes. The Board’s motion for judgment notwithstanding the verdict (“j.n.o.v.”) was denied, and this appeal followed. Held:

1. In two related enumerations, the Board contends the superior court erred in denying its motions for directed verdict and for j.n.o.v., arguing the Taxpayer presented no competent evidence of the fair market value of the inventory. The Board argues the Taxpayer’s expert opinion testimony is premised upon a hypothetical sale of the entire inventory to a single purchaser, specifically another retailer, allegedly contrary to Georgia law.

James N. Evatz, Manager of Tax Compliance for J. C. Penney Company, Inc., a Certified Public Accountant licensed in the State of Texas, is familiar with the definition of fair market value under Georgia law. In his opinion, after reducing FIFO (“first-in, first-out”) acquisition costs of $3,738,000 for economic obsolescence and for the value of nontransferable intangible trademark rights, the fair market value of the Macon store inventory on January 1, 1996, was $2,066,000. This testimony was presented without objection.

(a) In Georgia, “ ‘Competent evidence’ means evidence which is admissible.” OCGA § 24-1-1 (1). “All evidence is admitted as of course, unless a valid ground of objection is interposed, the burden being on the objecting party to state at the time some specific reason why it should not be admitted.” (Citations and punctuation omitted.) Kemira, Inc. v. Williams Investigative &c. Svcs., 215 Ga. App. 194, 196 (1) (a) (450 SE2d 427). In the case sub judice, because the Board did not raise a contemporaneous objection to the opinion of Evatz, the Board forfeited its right to insist his testimony be excluded from evidence. Sharpe v. Dept. of Transp., 267 Ga. 267 (1), 270 (476 SE2d 722). “‘The record as it exists at the close of trial controls as to whether the verdict should be. directed and as to whether motion for judgment notwithstanding the verdict should be granted.’ [Cit.]” DeLoach v. Myers, 215 Ga. 255, 256 (1) (109 SE2d 777).

“Under this rule the trial court may not on motion for [directed verdict or] judgment notwithstanding the verdict eliminate evidence on the ground that it was improperly received at the trial and then dispose of the case on the basis of the diminished record.” [Cits.]

Wooten v. Life Ins. Co. of Ga., 93 Ga. App. 665, 670 (92 SE2d 567) (on motion for rehearing). It follows that a motion for directed verdict or for j.n.o.v. is not an authorized procedural vehicle to challenge the competency of expert opinion testimony admitted without timely objection. Accord Andrews v. State, 118 Ga. 1, hn. 1 (43 SE 852) (failure to object treated as waiver, preventing the court, on a motion for new trial, from inquiring into the competency of evidence).

(b) “All property shall be returned for taxation at its fair market value.” OCGA § 48-5-6. As used in Title 48, Chapter 5 (Ad Valorem Taxation of Property), the term “ ‘Fair market value of property’ means the amount a knowledgeable buyer would pay for the property and a willing seller would accept for the property at an arm’s length, bona fide sale.” OCGA § 48-5-2 (3). “ ‘ “Market value is exclusively a matter of opinion even though expressed as a fact.” ’ ” Hirsch v. Joint City County Bd. of Tax Assessors, 218 Ga. App. 881, 882 (1) (463 SE2d 703).

For ad valorem tax purposes, fair market value is not the retail value to the taxpayer, but the current wholesale value adjusted for the fair market; thus, the taxpayer’s cost may be adjusted upward, downward, or remain the same to reflect the “wholesale market” as [that term reflects] the fair market value of the tangible personalty in the taxpayer’s possession [as of January 1, 1996].

Eckerd Corp. v. Coweta County Bd. of Tax Assessors, 228 Ga. App. 94, 103-104 (3) (491 SE2d 173). The fair market valuation of personal property may be determined by several indices, including “cost” to the taxpayer, as well as wholesale pricing in relation to the retail field. Id. at 104 (3). In our view, the jury’s verdict is supported in part by Evatz’s methodology that reduced the end-of-calendar-year costs by such factors as obsolescence and intangible nontransferable trademark rights. Consequently, the superior court correctly denied the Board’s motions for directed verdict and for j.n.o.v.

2. The third enumeration contends the superior court erred in denying the Board’s motion for new trial, because the verdict is allegedly ah illegal average of the values as contended by the parties.

“Verdicts shall have a reasonable intendment and shall receive a reasonable construction. They shall not be avoided unless from necessity.” OCGA § 9-12-4. In this proceeding to establish the fair market value of inventory for ad valorem tax purposes, the Taxpayer, who initiated the appeal to superior court, bore the burden of persuasion, but the Board’s estimate is not entitled to any presumption of correctness. Hirsch v. Joint City County Bd. of Tax Assessors, 218 Ga. App. at 882 (1), supra. “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80.

The opinion of an expert witness is not conclusive upon the jury. Such [opinion] testimony is intended to aid them in coming to a correct conclusion upon the subject; but the jury is not bound by such opinion, and can disregard it. The jury may deal with such testimony as they see fit, giving credence to it or not, and they may do so without rhyme or reason.

(Citations and punctuation omitted.) Wilson v. Professional Ins. Corp., 151 Ga. App. 712, 714 (261 SE2d 450). In the case sub judice, the jury’s verdict is within the range of evidence offered by competing experts. Giving this result a reasonable intendment and interpretation, the jury was authorized to conclude the Board’s estimate unreasonably failed to account for returns or end-of-season obsolescence, while simultaneously deciding the values Evatz assigned to these factors were too generous. The trial court did not err in failing to grant the Board’s motion for new trial on the ground the verdict was illegal or without evidentiary support. Liberty Mut. Ins. Co. v. Williams, 44 Ga. App. 452 (3) (161 SE 853).

Decided July 26, 1999.

Sell & Melton, Mitchel P. House, Jr., Robert D. McCullers, Michele E. Person, for appellant.

Smith, Gambrell & Russell, Edward K. Smith, for appellee.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


text:
    A99A1613.
    LYONS v. THE STATE.
    (521 SE2d 232)
   McMurray, Presiding Judge.

On December 21,1997, defendant was charged in uniform traffic citations with driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1) and with weaving over the roadway in violation of OCGA § 40-6-48. On January 13, 1998, in the Probate Court of Whitfield County, defendant submitted a signed “RIGHTS AND PLEA” form which omitted any actual guilty plea but indicated that defendant, then age 34, had completed the tenth grade; understood the charges against him and the extent of the possible penalties; understood his right to an attorney, including appointed counsel; understood his right to remain silent, to call witnesses, to cross-examine the State’s witnesses, and to have the State prove his guilt beyond a reasonable doubt; and understood his right to a jury trial. Based on a court adjudication of guilt to both charges, defendant was sentenced to 48 hours to serve and a fine of $1,025, followed by 11 months and 28 days probation, 80 hours of community service, and attending a risk reduction course. Defendant appealed to the superior court pursuant to OCGA § 40-13-28. There, he argued that this Code section is a constitutionally defective method to review decisions of a non-lawyer judge unless it is construed to require a record (transcript) unless such record (transcript) is waived by the defendant. After a review of the record as transmitted from the probate court, the superior court affirmed defendant’s convictions. Defendant’s direct appeal to the Supreme Court of Georgia was transferred to the Court of Appeals of Georgia. Held:

Decided July 26, 1999.

Kenneth D. Bruce, Don W. Thompson, for appellant.

In his sole enumeration of error, defendant contends OCGA § 40-13-28 unconstitutionally deprives him of due process by improperly placing on the defendant the burden of establishing that a record was in fact requested in the lower court proceeding, when no record or procedural safeguards exist to determine whether defendant in fact requested that same be transcribed.

1. Defendant has abandoned any distinct federal claim by failing to support such contention with argument or citation of authority. Court of Appeals Rule 27 (c) (2). Consequently, we determine defendant’s claims under Georgia law alone.

2. It is undisputed that defendant did not submit a written request for transcription of his bench trial to the probate judge, nor any written objection to the alleged refusal to transcribe that trial. Nor did he employ the substitute for a transcript authorized by OCGA § 5-6-41 (g). Rather, in support of his contention, defendant states in his brief that he requested his bench trial ‘Tie transcribed or recorded [but that this] request was denied . . .” by the probate judge.

Under OCGA § 40-13-28, the lower court shall certify the record, but the burden remains on the defendant to ensure that the record includes the issue upon which he or she seeks review as well as the lower court’s ruling on such issue, and this procedure satisfies due process. Walton v. State, 261 Ga. 392, 394 (2), n. 5 (405 SE2d 29). Accord Walker v. State, 204 Ga. App. 559 (1), 560 (420 SE2d 17). The very existence of the procedure to recreate the events of an unrecorded trial, as authorized by OCGA § 5-6-41 (g), is sufficient to rebut defendant’s unsubstantiated allegations that the Code section objected to deprived him of meaningful review of his convictions for driving under the influence of alcohol and weaving over the roadway as alleged in the uniform traffic citations.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

Thurbert E. Baker, Attorney General, Kermit N. McManus, District Attorney, Matthew A. Rankin, Assistant District Attorney, for appellee.

       The prospective rule regarding verbatim records of guilty plea hearings announced in King v. State, 270 Ga. 367 (509 SE2d 32), if applicable to non-jury trials of traffic offenses in the probate courts, was nevertheless not in force until February 25, 1999, the date of publication in the official advance sheets.


author: Pope, Presiding Judge.

text:
    A99A0048.
    WILSON v. BALDWIN.
    (519 SE2d 251)
   Pope, Presiding Judge.

Ginger Baldwin and Michael Wilson were divorced in Tattnall County and awarded joint custody of their daughter, with Baldwin to have physical custody. Later Baldwin moved to Monroe County with the child.

On December 9, 1997, Baldwin sued Wilson in Tattnall County for modification of child support, and Wilson counterclaimed for change of custody. The trial court dismissed the counterclaim pursuant to OCGA § 19-9-23 (a), which is part of the Child Custody Intrastate Jurisdiction Act (CCIJA). We granted Wilson’s application to appeal.

OCGA § 19-9-23 (a) provides: “Except as otherwise provided in this Code section, . . . any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.” Baldwin is the legal custodian under the CCIJA. OCGA § 19-9-22. Baldwin argues § 19-9-23 (a) required Wilson to file a separate action in Monroe County.

Subsection (c) of the same Code section prohibits bringing “a complaint seeking to obtain a change of legal custody” in two situations: “(1) As a counterclaim or in any other manner in response to a petition for a writ of habeas corpus seeking to enforce a child custody order-, or (2) In response to any other action or motion seeking to enforce a child custody order? (Emphasis supplied.) Wilson contends that because Baldwin filed a petition to modify child support and not to enforce a child custody order, subsection (c) does not prohibit him from seeking change of custody in a counterclaim, even if the action was not filed in the legal custodian’s county of residence. He cites Dixon v. Dixon, 183 Ga. App. 756, 757 (360 SE2d 8) (1987) in support of his position. Arguably the Code section is ambiguous.

The Supreme Court in Jones v. Jones, 256 Ga. 742, 743 (352 SE2d 754) (1987) has resolved this issue. In Jones, the custodial mother filed an action in the father’s county of residence seeking to modify the father’s visitation rights and the father filed a counterclaim seeking a change of custody. The Supreme Court stated:

The father, in filing a counterclaim seeking to change custody, violated two provisions of OCGA § 19-9-23 (a): (1) by failing to bring a separate action to have custody changed, and (2) by failing to bring such an action in the county of residence of the legal custodian of the child.

Id. at 743. The Court did not apply subsection (c) to allow the counterclaim just because the mother filed something other than an enforcement action. See also Graves v. Graves, 186 Ga. App. 140 (366 SE2d 809) (1988) (counterclaim for change of custody violates OCGA § 19-9-23 (a) where custodial parent brought claim for an award of child support and modification of visitation rights). Although not mentioned in the Supreme Court’s opinion in Jones, the ambiguity in the statute was addressed in the case affirmed in that decision, Jones v. Jones, 178 Ga. App. 794 (344 SE2d 677) (1986).

The Supreme Court’s decision makes clear that subsection (c) equates the term complaint with the term counterclaim, showing the drafters of the Code section used “complaint” in its common form to mean grievance, not as a term of art to mean the document used to commence a civil action under the Civil Practice Act. See American Heritage Dictionary (2nd College edition 1985), p. 301. “[A] statute must be viewed so as to make all its parts harmonize and to give a sensible and intelligent effect to each part.” Houston v. Lowes of Savannah, 235 Ga. 201, 203 (219 SE2d 115) (1975). The entire Code section thus contemplates that “a complaint seeking to obtain a change of legal custody” theoretically could be filed as a formal complaint in a separate action or as a counterclaim. Subsection (a) requires such a complaint to be filed in a separate action in the legal custodian’s county of residence. Subsection (c) then prohibits filing such a complaint as a counterclaim under certain circumstances. Subsection (c) has meaning because it clarifies that counterclaims which may be compulsory under OCGA § 9-11-13 (a), are prohibited.

To eliminate any confusion, to the extent Dixon v. Dixon is inconsistent-with our holding it must be disapproved. We note that the Supreme Court decided Jones v. Jones four months before Dixon v. Dixon, and that the same court denied certiorari in Dixon v. Dixon. However, denial of certiorari “should not be construed as the expression of an opinion by the appellate court on the merits of the decision.” (Emphasis omitted.) Intl. Indem. Co. v. Coachman, 181 Ga. App. 82, 85 (1) (351 SE2d 224) (1986). Cf. Dunwoody Country Club v. Fortson, 243 Ga. 236, n. 2 (253 SE2d 700) (1979).

Judgment affirmed.

Johnson, C. J., McMurray, P. J., Blackburn, P. J., Andrews, Smith, Ruffin, Eldridge, Barnes and Ellington, JJ., concur.

Decided June 7, 1999

Reconsideration denied July 27, 1999

Dubberly & McGovern, Joseph D. McGovern, for appellant.

Newton, Smith, Durden, Kaufold & Rice, Howard C. Kaufold, Jr., Sherri P. McDonald, for appellee.


author: Ruffin, Judge.

text:
    A99A0886.
    TAYLOR v. THE STATE.
    (521 SE2d 375)
   Ruffin, Judge.

A Muscogee Comity jury found Johnny Taylor guilty of one count of entering an automobile and one count of attempting to enter an automobile. Taylor appeals, contending that he received ineffective assistance of counsel. As Taylor’s contention lacks merit, we affirm.

On February 2,1997, Charles Thompson saw Taylor rummaging through a Jeep Cherokee belonging to Thompson’s neighbor while the Cherokee’s silent alarm lights were flashing. Thompson, who was in his car, called 911 from his car phone and reported the incident. After Taylor exited the Jeep, Thompson saw him go to another neighbor’s house and attempt to open the doors of a Chevrolet Blazer. Shortly thereafter, Taylor was apprehended by the police.

Prior to trial, Taylor rejected a plea bargain of five years with two to serve. Taylor was offered a second plea bargain of five years with three to serve, which Taylor also rejected. After a jury convicted Taylor, the trial court sentenced him to five years on the first count and two and one-half years on the second count, to be served consecutively for a total of seven and one-half years. As Taylor is a recidivist, he is not eligible for parole.

In his sole enumeration of error on appeal, Taylor contends that he received ineffective assistance of counsel because his trial attorney failed to timely inform him of the consequences of recidivist punishment — namely, that he would be ineligible for parole. See OCGA § 17-10-7. At the hearing on the motion for new trial, Taylor testified that he would have accepted the plea bargain had he fully understood the ramifications of going to trial.

As an initial matter, we do not believe that an attorney’s failure to inform a defendant regarding his ineligibility for parole constitutes ineffective assistance of counsel. In the recent case of Williams v. Duffy, 270 Ga. 580 (513 SE2d 212) (1999), our Supreme Court addressed a similar issue. In Duffy, the State offered the defendant a sentence of 15 years in exchange for his guilty plea, and the defendant accepted the offer. The trial attorney who negotiated the plea failed to inform Duffy that he would be ineligible for parole. Duffy filed a petition for habeas corpus relief claiming ineffective assistance of counsel. In rejecting Duffy’s claim, the Supreme Court noted that “eligibility or ineligibility for parole is not a consequence of a plea of guilty, but a matter of legislative grace or a consequence of the withholding of legislative grace.” (Punctuation omitted.) Id. at 581. The Supreme Court concluded that Duffy’s attorney was not constitutionally required to advise Duffy of “such collateral consequences” in order for his plea to be valid. Id. Accordingly, the Supreme Court reasoned that

Decided July 27, 1999.

William P. Nash, Jr., for appellant.

[i]f a defendant’s actual knowledge of such collateral consequences is not a prerequisite to his entry of a knowing and voluntary guilty plea, his lack of knowledge of those collateral consequences cannot affect the voluntariness of the plea. Accordingly, counsel’s failure to advise the defendant of the collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance [of counsel].

(Citations and punctuation omitted.) Id. at 582 (1).

We see no reason why the converse of this would not also be true — that a trial attorney’s failure to inform a defendant of the “collateral consequences” of proceeding to trial rather than accepting a guilty plea cannot rise to the level of constitutionally ineffective assistance of counsel. Thus, under the reasoning of Duffy, Taylor’s claim of error lacks merit.

Moreover, unlike Duffy, Taylor’s trial attorney did inform Taylor of the ramifications of proceeding to trial. According to the attorney, she told Taylor about the sentence he would face following a conviction and that, as a recidivist, he would be ineligible for parole. Taylor contends that the attorney should have informed him earlier of the consequences of going to trial. This contention also lacks merit as the attorney told Taylor prior to trial that he would be sentenced as a recidivist and that he would be ineligible for parole. Thus, Taylor had the relevant information when he made the decision to reject the State’s plea offer. Under these circumstances, the trial court’s finding that Taylor was not denied effective assistance of counsel is not clearly erroneous and will not be disturbed. See Whitehead v. State, 211 Ga. App. 121, 123 (438 SE2d 128) (1993).

Judgment affirmed.

McMurray, P. J, and Andrews, P. J., concur.

J. Gray Conger, District Attorney, E. Wayne Jernigan, Jr., Assistant District Attorney, for appellee.


text:
    A99A0947.
    HOPE v. THE STATE.
    (521 SE2d 372)
   Ruffin, Judge.

After the trial court declared a mistrial, Arondel Hope pled guilty to criminal trespass. Following sentencing, Hope attempted to withdraw his guilty plea. On appeal, Hope enumerates three errors. For reasons that follow, we affirm.

On the second day of Hope’s trial, the court declared a mistrial because the brother of one of the jurors had sustained critical injuries in an automobile accident. The court explained, “[b]ecause of the fact that she [a juror] is excused, we do not obviously, have enough jurors in the case to decide the case.” After consultation off the record with counsel, Hope decided not to proceed with only five jurors. After declaring the mistrial, the court stated that the retrial would start that afternoon. Hope then attempted, without success, to obtain a 48-hour continuance in order to subpoena additional witnesses. After the completion of voir dire in the second trial, Hope opted to enter a guilty plea.

1. Hope contends that the trial court’s declaration of a mistrial subjected him to double jeopardy. We disagree.

Upon a showing of good cause, a trial court may exercise its discretion in discharging a juror. Baptiste v. State, 190 Ga. App. 451, 453 (2) (379 SE2d 165) (1989). Although Hope contends that the trial court erred in failing to make an inquiry on the record before dismissing the juror, Hope never raised any objection to the trial court’s action. Nor has Hope shown that the court abused its discretion by excusing the juror. Where a defendant fails to timely object to the declaration of mistrial, “he may not thereafter utilize the mistrial as the basis of a plea of double jeopardy.” State v. Johnson, 267 Ga. 305 (477 SE2d 579) (1996). Since manifest necessity caused the mistrial here, the retrial did not constitute double jeopardy. Orvis v. State, 237 Ga. 6, 8-9 (2) (226 SE2d 570) (1976). Accordingly, no procedural bar to retrial arose. Id.

2. The record refutes Hope’s claim that his guilty plea was not knowingly, freely, and voluntarily made as he now claims. In his motion to withdraw the plea, Hope did not assert that his plea had not been voluntarily made; instead he claimed that he “changed his mind and now desires an acquittal on double jeopardy grounds or trial by jury.” He also contended that a manifest injustice would result unless he was permitted to withdraw the plea.

Hope informed the court that his plea was being entered freely arid voluntarily and of his own accord with a full understanding of the charge and his rights. The State proffered the factual basis for the charges by offering evidence that after an officer ordered Hope to leave the airport and issued a criminal trespass warning, Hope, nevertheless, returned to the airport a few hours later. The court found that Hope understood the consequences of entering his plea and that the plea had been knowingly and voluntarily entered and had a sufficient factual basis. Hope then signed an agreement not to return to Atlanta Hartsfield International Airport except for the authorized purpose of travel when he had an airline ticket. This agreement was incorporated into the sentence.

After pronouncement of sentence, the withdrawal of a guilty plea lies within the trial court’s sound discretion. DeLapuente v. State, 182 Ga. App. 808, 809 (357 SE2d 155) (1987). See generally OCGA § 17-7-93 (b). The court’s exercise of this discretion will not be disturbed unless manifestly abused. Thomas v. State, 231 Ga. 298, 300 (201 SE2d 415) (1973). We find no such abuse of discretion in this case. See State v. Evans, 265 Ga. 332, 336 (3) (454 SE2d 468) (1995); DeLapuente, supra.

3. Hope asserts that he was prejudiced by receiving ineffective assistance of counsel.

To establish ineffectiveness, an appellant must show not only that his counsel’s performance was deficient, but also that the deficiency prejudiced him. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844) (1997). Failure to satisfy either prong of the Strickland standard is fatal to an ineffectiveness claim. Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997). A defendant must overcome the strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional conduct. Ross v. State, 231 Ga. App. 793, 795 (1) (499 SE2d 642) (1998).

(a) Hope claims that his counsel was ineffective for failing to subpoena certain witnesses. At the motion hearing, counsel testified that he had been made aware of only two witnesses. Counsel explained that he did not subpoena those two persons because after interviewing them he felt that they had no information that would be beneficial to Hope.

Notwithstanding Hope’s claim that he had informed his counsel about ten other witnesses, his counsel testified otherwise. Counsel cannot be faulted for not subpoenaing witnesses about whom he had no knowledge. Counsel’s decision not to subpoena the two airport officials as defense witnesses was a matter of trial tactics and did not constitute ineffectiveness. Reddin v. State, 223 Ga. App. 148, 151 (3) (a) (476 SE2d 882) (1996); see Hope v. State, 226 Ga. App. 392, 393 (486 SE2d 658) (1997).

Decided July 27, 1999

Richard D. Wilson, Gladys H. Pollard, for appellant.

Keith C. Martin, Solicitor, Kimberly A. Gross, Assistant Solicitor, for appellee.

(b) Hope asserts that his counsel was ineffective for failing to object to the mistrial or the retrial. But any such objection would have been futile since retrial was not improper.

(c) Hope contends that his counsel was ineffective for failing to properly advise him that he was being banned for life from the airport premises.

Notwithstanding Hope’s assertion regarding his so-called “lifetime ban” from the airport, we find no such ban exists. The trial court merged the two counts of criminal trespass and sentenced Hope to serve ten months incarceration. Nothing in the sentence form purports to impose a lifetime ban. In the addendum attached to the sentencing form, Hope acknowledged: “I am not to return to the airport and have been given notice that I am not allowed to return to the airport except for [the] authorized purpose of travel (must have ticket).” See Curry v. State, 248 Ga. 183, 185 (4) (281 SE2d 604) (1981). Because the terms or conditions of probation cannot exceed the maximum sentence authorized for the underlying offense, no lifetime ban could have been imposed. See OCGA § 17-10-1 (a) (1); Ballenger v. State, 210 Ga. App. 627, 629 (3) (436 SE2d 793) (1993); Johnson v. State, 226 Ga. App. 503, 504 (487 SE2d 90) (1997). Accordingly, we affirm.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.


text:
    A99A1134.
    PARKS v. THE STATE.
    (521 SE2d 370)
   Ruffin, Judge.

Gary Parks, who was charged with three traffic violations, appeals the trial court’s denial of his motion for discharge and acquittal on speedy trial grounds. Finding no error, we affirm.

On October 17, 1997, Parks was arrested and issued three uniform traffic citations for failure to maintain lane, DUI, and no proof of insurance. On October 20, 1997, the citations were received and stamped as “filed” in the Cobb County State Court clerk’s office. The solicitor never filed a formal accusation against Parks. On February 10, 1998, Parks waived formal arraignment and filed a demand for a jury trial in that term or the next term. Parks, however, was not tried within that term or the following term. On May 20, 1998, Parks filed a motion for discharge and acquittal pursuant to OCGA § 17-7-170. The trial court denied Parks’ motion on grounds that his speedy trial demand was not timely because it was not filed within the same or following term as the uniform traffic citations were filed.

Pursuant to OCGA § 17-7-170,
[a]ny person against whom a true bill of indictment or an accusation is filed with the clerk for an offense not affecting his life may enter a demand for trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter-, or, by special permission of the court, he may at any subsequent court term thereafter demand a trial. ... If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.

(Emphasis supplied.) OCGA § 17-7-170 (a) and (b); see also State v. Gerbert, 267 Ga. 169, 170 (475 SE2d 621) (1996). “It is well settled in Georgia law that the protection conferred by OCGA § 17-7-170 attaches with the formal indictment or accusation.” (Punctuation omitted.) Tyler v. State, 224 Ga. App. 550, 551 (481 SE2d 228) (1997). At that point, the clock starts running on the time for the accused to make a speedy trial demand. OCGA § 17-7-170 (a); Jackson v. State, 231 Ga. App. 187-188 (1) (498 SE2d 780) (1998). In the case of an alleged traffic violation, a uniform traffic citation functions as an accusation, without the necessity of filing an additional, formal accusation. OCGA § 40-13-1; Hayek v. State, 269 Ga. 728, 729 (2) (506 SE2d 372) (1998); Smith v. State, 207 Ga. App. 762 (429 SE2d 149) (1993). The Supreme Court has established a bright-line rule that the right to a speedy trial in such a case attaches when the state files a uniform traffic citation with the court. Gerbert, supra.

The citations issued to Parks were filed in the clerk’s office on October 20,1997, during the September 1997 term of court. Because the filing of the citations functioned as an accusation, Parks’ speedy trial clock started running in the September 1997 term of court. Parks did not file his speedy trial demand, however, until two terms later, in the January 1998 term. There is no indication in the record that Parks sought special permission from the court to file his demand out of time. Accordingly, Parks’ demand was untimely under OCGA § 17-7-170 (a), and the trial court properly denied his motion for discharge and acquittal. See State v. Black, 213 Ga. App. 331 (444 SE2d 368) (1994) (trial demand that was not filed during term of court in which uniform traffic citations were filed or in next regular term was untimely); Ingram v. State, 224 Ga. App. 271, 272 (3) (480 SE2d 302) (1997) (speedy trial demand should be rejected when not filed within statutory period).

Parks argues that the citations issued to him were not proper accusations and therefore did not start his speedy trial clock running. Parks cites the local legislation creating the Cobb County State Court, which provides in part that

[a] 11 prosecutions in criminal cases instituted in the Civil and Criminal Court of Cobb County shall be by written accusation made by the solicitor general or assistant solicitor general, based upon an affidavit setting forth plainly the offense charged in terms of law, upon which shall be entered the name of the prosecutor.

Ga. L. 1994, p. 3938 (amending “an Act to create a court to be known as the ‘Civil and Criminal Court of Cobb County,’ ” approved March 26, 1964; see Ga. L. 1964, p. 3211). Parks maintains that his speedy trial clock did not start running until his arraignment on February 10, 1998, because no formal accusation was filed by the solicitor’s office in this case. This argument lacks merit.

OCGA § 15-7-1 et seq. authorizes the creation of state courts in Georgia and establishes rules of practice and procedure governing all such courts. Mafia v. State, 174 Ga. App. 432, 434 (2) (330 SE2d 171), aff’d, State v. Mafia, 254 Ga. 660 (333 SE2d 834) (1985). These Code provisions signal the legislature’s clear intent that there be uniform rules of practice and procedure in the state courts. Id.; see also Ga. Const, of 1983, Art. VI, Sec. I, Par. II; Art. VI, Sec. I, Par. IV. Accordingly, unless otherwise provided by OCGA § 15-7-1 et seq., when there is a conflict between the statute and local law creating a particular state court, the statute takes priority and is controlling. OCGA § 15-7-3; see also OCGA § 15-7-60. Further, “[t]he general laws and rules of practice, pleading, procedure, and evidence which are applicable to the superior courts of this state” also govern the state courts. OCGA § 15-7-43 (b).

Although OCGA § 15-7-1 et seq. does not specifically refer to speedy trial demands, OCGA § 17-7-170 is clearly encompassed within the “general laws and rules of practice, pleading, procedure, and evidence which are applicable to the superior courts” of Georgia. See Majia v. State, 174 Ga. App. at 434. Thus, the local legislation cited by Parks does not abrogate OCGA § 40-13-3’s clear pronouncement that, in prosecutions based on uniform traffic citations which are filed in court, the State need not file a formal accusation. Likewise, traffic prosecutions in Cobb County State Court do not present an exception to the bright-line rule established by the Supreme Court in Gerbert, supra, that the filing of a uniform traffic citation substitutes for the filing of a formal accusation and starts the speedy trial clock running. Here, the filing of the citations against Parks constituted an accusation, and Parks’ trial demand filed two court terms later was untimely. See Black, supra.

Decided July 27, 1999.

Jack J. Menendez, for appellant.

Barry E. Morgan, Solicitor, Jessica K. Moss, Aurieanne T. Sneed, Assistant Solicitors, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.

       The Cobb County State Court has six terms of court, commencing on the second Monday in January, March, May, July, September, and November. OCGA § 15-7-40; Ga. L. 1979, pp. 3481, 3483.

       The Civil and Criminal Court of Cobb County subsequently became the State Court of Cobb County. See Biekley v. State, 150 Ga. App. 669 (258 SE2d 306) (1979).


author: Johnson, Chief Judge.

text:
    A99A1525.
    In the Interest of N. B. et al., children.
    (521 SE2d 47)
   Johnson, Chief Judge.

The mother of N. B. and R. B. appeals from a juvenile court order terminating her parental rights. She contends the trial court erred in determining that she failed to comply with case goals, that the cause of the children’s deprivation is likely to continue or will not likely be remedied, and that there was no suitable alternative placement for the children within the family. We affirm the trial court’s order with respect to the mother’s first two arguments and find the trial court properly terminated the mother’s parental rights. However, we reverse and remand the case with direction that the juvenile court, in conjunction with the Department of Human Resources, evaluate the possibility of placing the children with their paternal grandfather.

On appeal, we view the evidence in a light most favorable to the juvenile court’s order and determine whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated; we do not weigh the evidence and must defer to the trial judge as the factfinder. In the Interest of D. L. N., 234 Ga. App. 123, 125 (2) (506 SE2d 403) (1998). We find no error and affirm the decision of the juvenile court.

The decision to terminate parental rights involves a two-step process. First, the juvenile court must determine whether there is clear and convincing evidence of parental misconduct or inability. Parental misconduct or inability is found when the child is deprived, the cause of the deprivation is lack of proper parental care or control, the cause of the deprivation is likely to continue or will not likely be remedied, and the continued deprivation will cause or is likely to cause serious harm to the child. OCGA § 15-11-81 (b) (4) (A).

Second, if the juvenile court finds clear and convincing evidence of parental misconduct or inability, it must consider whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. OCGA § 15-11-81 (a). See In the Interest of B. D., 236 Ga. App. 119 (511 SE2d 229) (1999).

Viewing the evidence in favor of the juvenile court’s findings, the record shows that one-year-old N. B. and newborn R. B. were removed from the mother’s custody shortly after R. B.’s birth on August 27, 1996, because R. B. tested positive for cocaine and marijuana at the time of his birth. The mother also tested positive for cocaine and marijuana and was homeless and transient. At the September 10, 1996 deprivation hearing, the mother stipulated that N. B. was deprived, and temporary legal custody of both children was transferred to the Henry County Department of Family & Children Services (the “Department”).

Two caseworkers attempting to work with the mother toward reunification testified that the mother failed to comply with the requirements of her case plan. The mother did not obtain a drug and alcohol assessment through a state-approved treatment facility, as required by the plan. She provided no documentation to show she attended AA and NA meetings twice per week for at least six months. She failed to submit to and pay for random drug screens. She never obtained a psychological evaluation from an approved psychologist. She never completed a parenting skills class. She failed to secure affordable housing for herself and the children. In fact, she resided in seven different residences over the two-year period when her children were in foster care. She paid no child support the entire time the children were in foster care. She attended only 15 of the 27 scheduled visits with her children. At the time of the termination hearing in December 1998, the mother had last seen the children in June 1998. Moreover, the mother was incarcerated on multiple occasions while her children were in foster care and was incarcerated at the time of the termination hearing.

At the termination hearing, the mother conceded that she failed to accomplish everything the Department had asked her to do. She admitted to having a drug dependency and acknowledged she would be incapable of properly parenting N. B. and R. B. for an additional nine months. She conceded that R. B. did not recognize her.

As a result of the mother’s failure to comply with the case plan goals and to remedy her problems with drug abuse that caused her children to be removed originally from her custody, the juvenile court determined that N. B. and R. B. were deprived; the lack of proper parental care and control by the mother was the cause of the deprivation; the conditions and causes of deprivation were likely to continue and not be remedied by the mother; the continued deprivation would cause serious physical, mental, emotional or moral harm to N. B. and R. B.; and there was no suitable alternative placement for the children within the family.

1. The mother does not argue that the children are not deprived, but merely contends the evidence was insufficient to show that (1) she failed to comply with her case plan goals, and (2) the cause of the deprivation is likely to continue or will not likely be remedied. These contentions are without merit.

The mother’s first argument, regarding failure to comply with her case plan goals, centers around the fact that she completed a drug screen as ordered, but her caseworker obviously did not receive the results. Based on the other goals which the caseworker testified were not met, as well as the mother’s admission that she failed to accomplish everything the Department asked her to do, we find clear and convincing evidence that the mother failed to comply with or achieve the goals in the court-ordered case plans.

The evidence is also sufficient to support the court’s finding that the continued deprivation of the children is likely to continue or will not likely be remedied. First, evidence of past conduct may be considered in determining whether the deprivation is likely to continue if the children are returned to their mother. See In the Interest of B. D., supra at 121 (2). The past conduct of the mother in this case certainly justifies such a finding. Second, the record is replete with examples of the mother’s failure to cooperate with the Department’s case plan. Moreover, she was incarcerated at the time of the termination hearing and admitted she still has a drug dependency.

While the mother promises to change her life, this court has repeatedly recognized that “[t]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Citation and punctuation omitted.) In the Interest of S. J. C., 234 Ga. App. 491, 494 (1) (507 SE2d 226) (1998). Based on the mother’s past behavior, the length of time her problems have persisted, her failure to comply with the case plan goals, and her own admissions, the juvenile court properly concluded that the deprivation is likely to continue or will not likely be remedied.

2. We agree with the mother’s argument that the juvenile court erred in finding there was no suitable alternative placement for the children within the family.

The issue of placement with relatives is one to be made by the juvenile court, together with the Department, following the juvenile court’s decision to terminate parental rights. OCGA § 15-11-90 (a); In the Interest of D. T., 221 Ga. App. 328, 330 (2) (471 SE2d 281) (1996). According to the statute, “[a]n exhaustive and thorough search for a suitable family member shall be made by the court and the Department of Human Resources in attempting to effect this placement.” OCGA § 15-11-90 (a) (1).

In the present case, the caseworker testified that she did not investigate the paternal grandfather as a possible suitable relative placement for the children because he never contacted the Department or expressed any interest in the children during the entire time they had been in foster care. However, while testifying about his son’s employment and suitability as a parent during the trial of this case, the paternal grandfather stated that he would like to be considered for placement for his grandchildren. He admitted he had not contacted the Department in order to indicate his interest in serving as a placement resource for the children during the time they were in foster care. Nonetheless, while this may be considered as one factor in the Department’s evaluation regarding the paternal grandfather’s suitability for relative placement, it does not negate the Department’s duty to conduct such an evaluation following the juvenile court’s termination of the parents’ parental rights. The juvenile court’s finding that no suitable relative existed for placement was premature pending an evaluation of the paternal grandfather’s suitability.

Thus, while we affirm the trial court’s termination of the mother’s parental rights, we reverse the juvenile court’s decision that there is no suitable alternative placement for the children within the family. We remand the case to the juvenile court with direction that the juvenile court, in conjunction with the Department of Human Resources, evaluate the possibility of placing the children with their paternal grandfather. In so doing, we do not express any belief that the children must or should be placed with the paternal grandfather.

Decided July 15, 1999

Reconsideration denied July 28, 1999.

William D. Patten, Jr., for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Robert E. Hall, James T. Chaftn III, for appellee.

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

Pope, P. J., and Smith, J., concur.

       Although the children’s father was a party to the notice of appeal filed in the Henry County Juvenile Court, he subsequently informed the court that he was employed and no longer needed the assistance of the court-appointed attorney. Following a hearing on the indigent status of the parents, the trial court terminated the services of the court-appointed attorney on behalf of the father. Since the father has not paid appeal costs or otherwise participated further in this appeal, his appeal, if any exists, must be treated as having been abandoned.


author: Phipps, Judge.

text:
    A99A0799.
    THE STATE v. BLAIR.
    (521 SE2d 380)
   Phipps, Judge.

As a result of evidence seized during a traffic stop, Emanual Blair and his co-indictees were charged with possession of marijuana with intent to distribute and other offenses. The State appeals the trial court’s grant of Blair’s motion to suppress the evidence.

On October 14, 1997, Georgia State Patrol Trooper Phillips was operating a stationary radar device along Interstate 85 in Banks County when he stopped an automobile containing four occupants and being driven with a dealer’s drive-out tag. Phillips questioned the car’s driver and front-seat passenger, who was identified as the owner. Phillips testified that his suspicions were aroused because neither individual produced any proof of ownership of the car, they provided conflicting explanations concerning the purpose of their journey, all occupants of the car appeared very nervous, and Blair was seated in the back of the car clutching a black bag. As a result, Phillips felt as though “something was going on,” and he proceeded to ask the driver if there were any weapons, drugs, or large quantities of cash in the car. When the driver responded in the negative, Phillips unsuccessfully sought permission to search the car from the supposed owner.

Phillips then decided that he needed assistance and radioed Georgia State Patrol Corporal Brown, who was positioned approximately 200 yards away. When Phillips informed Brown of his inability to obtain consent to search the car, Brown summoned a canine unit. As Brown was approaching the scene in his patrol car, Blair fled with the bag in hand. After he was apprehended, approximately five pounds of marijuana along with ziplock baggies and a digital scale were found in the bag.

In granting the motion to suppress, the trial court concluded that the trooper lawfully stopped the car because it did not have a state-issued tag but then unlawfully detained the car’s occupants in order to search the car for drugs. As authority in support of its decision, the court cited Smith v. State, 216 Ga. App. 453, 454 (2) (454 SE2d 635) (1995). In arguing that the detention was lawful, the State relies on Pitts v. State, 221 Ga. App. 309, 311 (2) (471 SE2d 270) (1996). Held:

“Investigative stops of vehicles are analogous to Terry-stops, (Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968)). . . .” State v. Wright, 221 Ga. App. 202, 204 (3) (470 SE2d 916) (1996).

“The validity of an officer’s investigative or protective conduct upon making a ‘Terry stop’ is determined in each case by balancing the extent of the intrusion against the immediacy and importance of the interest in crime prevention or law enforcement which is sought to be advanced.” [Cit.]

State v. Stansbury, 234 Ga. App. 281, 282-283 (505 SE2d 564) (1998). An investigatory traffic stop

“has been described by this court as a brief stop, limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop. (Cit.)” [Cit.]

Smith v. State, supra at 454-455. An officer who questions and detains a suspect for other reasons exceeds the scope of permissible investigation unless he has “reasonable suspicion” of other criminal activity. Simmons v. State, 223 Ga. App. 781, 782 (2) (479 SE2d 123) (1996).

In Smith, a narcotics officer initiated a traffic stop to investigate a possible DUI violation after observing Smith’s truck weaving between lanes. Smith, however, had no odor of alcohol on his breath and reasonably explained his erratic driving. Without taking any steps to ascertain whether Smith was under the influence, the officer asked if Smith had any narcotics in the truck and sought consent to search it. After Smith refused to give his consent, the officer summoned a K-9 unit to the scene. This court held the officer’s detention of Smith in order to search his truck was based on nothing more than a “hunch” that the truck contained narcotics and was not authorized by Terry. Id. at 455.

Here, the officer stopped the car in which Blair was traveling in order to investigate the car’s registration and licensing. See OCGA § 40-2-20 (making a person’s failure to register new or used motor vehicles within 30 days of purchase a misdemeanor punishable by fine). The evidence supports the trial court’s finding that the officer abandoned that investigation and detained the occupants of the car in order to conduct a search for drugs. See generally Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). The court was authorized to conclude that the detention was impermissible because the facts known to the officer did not provide reasonable suspicion of illegal drug activity.

Decided July 28, 1999

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellant.

James W. Smith, for appellee.

Pitts is factually similar to this case but ultimately distinguishable. The defendants in Pitts were traveling along Interstate 95 in Camden County in a rental van when they were stopped by a deputy sheriff because of the driver’s failure to dim the vehicle’s headlights in response to oncoming traffic. In Pitts, much like this case, the investigating officer detained the occupants of the vehicle in order to conduct a drug search because they appeared unusually tense and gave conflicting versions of their travel itinerary. But this court justified the detention in Pitts by holding that it was “ ‘not unconstitutionally intrusive when balanced against the widespread clear danger of drug peddling from Florida via the roads of this state. [Cit.]’ [Cit.]” Pitts, supra at 311. No such justification has been asserted here. Pitts is not controlling.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


text:
    A99A0936.
    SOUTHWESTERN COMPOSITE TECHNOLOGY CORPORATION v. AMERICUS-SUMTER PAYROLL DEVELOPMENT AUTHORITY.
    (521 SE2d 378)
   Phipps, Judge.

Americus-Sumter Payroll Development Authority brought this action against Southwestern Composite Technology Corporation for nonpayment of rent and other sums due under a lease.

In June 1993, Southwestern leased a building and surrounding acreage from the development authority for the purpose of operating an aerospace equipment manufacturing company. The term of the lease began in August 1993, rent payments were to commence in December 1995, and the scheduled termination date is in November 2013. Before rent was due, the tenant’s business became defunct, and it abandoned the premises without making any rental payments. Because of the default, the landlord exercised its right to reenter the premises in April 1996 and began to sublease the property to Lockheed Martin while opting not to terminate the lease. Pursuant to the lease, the landlord applied rent payments received from Lockheed to reduce the tenant’s indebtedness for rent while advising the tenant that it might make repairs to the premises for which the tenant would be liable.

In May 1996, the landlord notified the tenant that it had been required to pay for emergency repairs to the roof on the building as a result of a storm, that it had received $158,000 and $127,000 bids to put a new roof on the building, that it was accepting the lower bid, and that replacement of the roof was necessary because the landlord had been advised that the original roof was only a temporary roof and was continuing to leak.

The landlord brought this suit to recover lease payments due and owing after rent paid by the sub-lessee had been credited to the tenant’s account and for monies expended by the landlord in repairing and replacing the roof and in making insurance payments which were the responsibility of the tenant. Although the landlord had notified the tenant that it had accepted a bid of $127,000 to replace the roof, the landlord sought to recover $138,975 for this expense. The trial court granted the landlord’s motion for summary judgment for all sums requested, in the total amount of $359,454.27. Held:

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the'evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

1. The tenant first contends that there is a material issue of fact on the question of whether it is liable for rent accruing during the period the premises were damaged by storm.

The tenant relies on a section of the parties’ lease, providing for an abatement of rent if damage to or destruction of the premises by casualties such as storms interferes with the tenant’s use of the premises. But here, the sub-lessee Lockheed was in sole possession of the premises, and the landlord submitted uncontroverted evidence showing that there was no interruption in Lockheed’s use of the premises. Consequently, there is no triable issue in this regard.

2. The tenant contends that the court erred in granting summary judgment to the landlord for $138,975 in replacing the roof, in that (1) the landlord gave notice that the cost of replacement would be $127,000; and (2) at the inception of the lease, the tenant’s understanding was that there was a permanent roof on the building. We agree that there are material issues of fact and/or law on the question of the tenant’s liability for the amount of this expense.

Although the lease by its terms does obligate the tenant to defray the cost of repairs made by the landlord upon reentering the premises in the event of the tenant’s default without imposing any express requirement that such costs be reasonable, every contract imposes upon each party a duty of good faith and fair dealing in the performance of their respective duties and obligations. Phillips v. Key Sues., 235 Ga. App. 564, 566-567 (510 SE2d 304) (1998). Here, the tenant has raised the issue of whether the landlord complied with its duty in these regards by paying over $10,000 more for replacing the roof than it had indicated would be necessary, and the landlord has not sought to explain the discrepancy.

In addition, the provisions of the lease are ambiguous on the question of whether the landlord or tenant is obligated to replace a temporary roof damaged by storm with a permanent roof. Under the lease, the tenant did accept the buildings and improvements in their existing condition without any express or implied warranties other than those provided for in the lease. And the lease does obligate the tenant, at its own cost and expense, to maintain, repair, and replace buildings and improvements (ordinary wear and tear excepted). But the lease is silent as to whether the tenant is required to make improvements to the premises necessitated by the fact that a permanent roof had not been erected on the building. Moreover, one of the provisions of the lease can be interpreted as requiring the landlord to repair damages caused by casualties such as storms or terminate the lease.

For these reasons, the landlord was not entitled to summary judgment on its claim for recovery of $138,975 in replacing the roof, and the grant of total summary judgment to the landlord must be reversed.

Judgment reversed.

Andrews, P. J., and Ruffin, J., concur.

Decided July 28, 1999.

William M. Calhoun, Jr., for appellant.

Michael A. Fennessy, for appellee.


text:
    A99A1081.
    RICHARDSON v. THE STATE.
    (521 SE2d 239)
   Phipps, Judge.

Following denial of his motion for new trial, Darryl Richardson appeals his convictions of obstructing law enforcement officers Edwards and Davis in the lawful discharge of their official duties. OCGA § 16-10-24 (a). Richardson challenges the sufficiency of the evidence to show (1) that he obstructed the officers and (2) that they were lawfully discharging their official duties.

Under Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979), we view the evidence in the light most favorable to the prosecution. All reasonable inferences are made, and all issues of weight and credibility are resolved, in favor of the verdict. See Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986).

Viewed in accordance with these principles, the evidence shows that on September 17, 1998, at approximately 11:00 p.m., Clayton County police officer Palmer responded to a domestic disturbance call at an Amoco station. When he arrived on the scene, the complainant stated that her boyfriend had struck her with a baseball bat. She described him as a tall and slender black male and said that he was in the area of a muffler shop no more than 100 yards away. Palmer broadcast this information through a radio lookout received by Officer Edwards, who was in the vicinity. Edwards went to the scene and observed Richardson doing a run/walk behind the muffler shop. Although it was ultimately determined that Richardson was not the alleged perpetrator, he fit the suspect’s description.

Edwards approached Richardson, informed him of the investigation he was conducting, and attempted to question him. Richardson began to walk away but then complied with the officer’s request that he stop and provide identification. After doing so, however, he ran into the boarding house, saying that he did not have to talk to the officer and did not have time to do so.

The above confrontation is referred to as a tier-one police-citizen encounter, wherein a police officer merely approaches a citizen, asks questions, and requests identification. State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992). Such encounters involve no coercion or detention and therefore are without the compass of the Fourth Amendment. Alexander v. State, 166 Ga. App. 233, 234 (2) (303 SE2d 773) (1983).

After Richardson fled, Edwards retreated to his patrol car parked in front of the boarding house, and he radioed for assistance. Richardson then emerged from the boarding house and began walking briskly toward Edwards through the parking lot. Since the area was very dark, Edwards asked Richardson to show him his hands, but he refused to do so, commenting that he had not done anything wrong. Edwards then asked Richardson to raise his hands, but he complied only momentarily. Because Edwards feared for his safety, he grabbed Richardson while explaining that he was not attempting to arrest him but only wanted to frisk him for weapons.

At this point, the confrontation escalated into a tier-two encounter, in which an officer conducts a brief, investigatory stop and frisk of a person under principles set forth in Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). See Alexander v. State, supra at 234-235. A police officer may make such stop if the officer has “a reasonable, articulable suspicion” that the person stopped has been, is, or is about to be, engaged in criminal activity. Davis v. State, 225 Ga. App. 627, 628 (2) (484 SE2d 655) (1997). “ ‘[A] founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. (Cit.)’ [Cit.]” State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314) (1991).

“(A) reasonable search for weapons for the protection of the police officer[ ] (is permitted) where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” [Cit.]

Smith v. State, 139 Ga. App. 129, 131 (2) (227 SE2d 911) (1976).

Instead of cooperating with the officer, Richardson put up a struggle and began attempting to place his hand in a pocket wherein a knife was later found. During the struggle, Officer Davis appeared on the scene to assist Edwards. Richardson continued to struggle with both Davis and Edwards, but was finally placed under arrest after a third officer arrived. Held:

When Officer Edwards was informed that a described criminal suspect was located in a specified area and then observed Richardson, who was in the area and fit the suspect’s description and appeared to be fleeing the scene, there existed reasonable and articulable suspicion justifying a Terry stop. Cf. McDaniel v. State, 227 Ga. App. 364, 366 (2) (489 SE2d 112) (1997). Edwards, however, did not attempt to physically restrain Richardson for the purpose of a weapons frisk until Richardson exited the boarding house and initiated a confrontation with the officer while refusing to allow the officer to satisfy himself that he was not armed. A reasonably prudent person in Officer Edwards’ position would have been warranted in the belief that a threat to his safety was being posed. Edwards and Davis were thus engaged in the lawful discharge of their official duties in placing Richardson under detention and ultimately arresting him. The evidence authorized the jury to find that Richardson obstructed the officers in their efforts. See Walker v. State, 235 Ga. App. 91 (508 SE2d 465) (1998).

Decided July 28, 1999.

Patricia F. Angelí, for appellant.

Keith C. Martin, Solicitor, Michael L. Tripp, Assistant Solicitor, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.


text:
    A99A1435.
    THE STATE v. VARNER.
    (521 SE2d 247)
   McMurray, Presiding Judge.

The State appeals the trial court’s order granting defendant’s motion to suppress cocaine found in defendant’s possession during a warranted search of a house in which defendant was a visitor. Although the evidence adduced at a motion to suppress hearing may be subject to varying interpretations, we must construe it most favorably to the upholding of the trial court’s findings and judgment. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646). We, therefore, adopt (quote) the trial court’s findings of fact.

On January 29, 1998, [Narcotics Agent] Marcus Neville [of the Hall County Sheriff’s Office] executed a search warrant at 940 Cooley Drive believed to be the residence of “Ramone LNU” (last name unknown). The warrant allowed Agent Neville to search the premises and the person of “Ramone” for cocaine and drug paraphernalia. When Agent Neville entered the residence he found a large number of people sitting around a coffee table in the living room. On the table were playing cards and cash. Neville noticed Defendant and believed that he recognized him. There is no evidence that Defendant actually lived at the 940 Cooley Drive residence. For officers’ safety, Agent Neville and the other officers handcuffed the people in the living room. While Defendant was handcuffed, Neville asked him if he had any drugs. Defendant did not respond and simply looked at the ground. Neville then asked Defendant for consent to search his person. Again Defendant looked at the floor and did not respond. At this point, Neville informed Defendant that the was going to pat him down. When the officer patted Defendant down, he felt what he stated was not a weapon but what he believed to be contraband in Defendant’s front pocket. Agent Neville then reached into Defendant’s front pocket and retrieved a baggie containing what appeared to be crack cocaine. Neville then placed Defendant under arrest.

Decided July 28, 1999.

Lydia J. Sartain, District Attorney, Lisa A. Jones, Assistant District Attorney, for appellant.

Summer & Summer, Daniel A. Summer, for appellee.

Held:

To search a person not named in a search warrant but found on the premises during the search is illegal absent independent justification for a personal search. Bundy v. State, 168 Ga. App. 90 (308 SE2d 213). Such a personal search may be justified to protect a searching officer from attack. OCGA § 17-5-28 (1). But the searching officer must be able to articulate particular facts upon which it would be reasonable to infer that the individual the officer searched was armed and dangerous. Bundy v. State, 168 Ga. App. 91, supra. See Clark v. State, 235 Ga. App. 569, 571 (2) (510 SE2d 319). In the case sub judice, Agent Neville justified his “pat-down” search of defendant “for officer safety.” The trial court rejected this explanation, reasoning that “none of the testimony about Defendant’s demeanor after being cuffed would lead to a reasonable belief that the officers were in danger of attack.” This conclusion is supported by reasoning and evidence and must, therefore, be affirmed on appeal. Tate v. State, 264 Ga. at 54 (1), supra.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


author: McMURRAY, Presiding Judge.

text:
    A99A1467.
    THE STATE v. ROBINSON.
    (521 SE2d 377)
   McMURRAY, Presiding Judge.

The State appeals the trial court’s order granting defendant’s motion to suppress cocaine found in his car. Although the evidence adduced at the motion to suppress hearing is conflicting and may be subject to varying interpretations, we construe it most favorably to the upholding of the trial court’s findings and judgment. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646).

On July 3, 1993, Officer Stanley Cobb of the Columbus Police Department was patrolling a high crime area with other officers assigned to the “Tactical Operations Unit” when he spotted defendant in the driver’s seat of a car that was parked in a car wash’s drive-through service bay. Because defendant was not washing his car, but was talking to a pedestrian and a man on a bicycle, Officer Cobb rushed the scene with four other officers in three or four patrol cars. The officers blocked the front and rear of defendant’s car with their patrol cars and began questioning the bicyclist who had been talking to defendant. This man cooperated at first, but fled when the officers began searching his pockets. Three of the officers gave chase while the other two stayed behind and held defendant at the scene. Officer Shannon Seals refused defendant’s request to leave the scene and asked defendant for identification. Defendant complied, and about five minutes later, Officer Cobb and another officer returned with the bicyclist in handcuffs. These officers found “two rock grams of crack cocaine in [the suspect’s] sweat suit pocket.”

The officers then turned their attention to defendant. After ordering defendant out of the car, Officer Cobb searched defendant and found $897 in defendant’s back pocket. The officers then handcuffed defendant and searched his car. They found a bag of cocaine under the car’s driver’s seat. Held:

A temporary investigatory stop under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889), involving restraint must be supported by articulable suspicion that the suspect was or was about to be engaged in criminal activity. Expósito v. State, 191 Ga. App. 761, 762 (1) (382 SE2d 412). Officer Cobb triggered such an encounter with defendant in the case sub judice when he rushed defendant with four other officers in three or four patrol cars and blocked defendant’s car in the car wash service bay. But he failed to justify this maneuver at the motion to suppress hearing by articulating a particularized and objective basis for suspecting that defendant was engaged or would soon be engaged in criminal activity. Officer Cobb testified that his police experience informed him that individuals engaged in illegal drug transactions will customarily execute deals in areas known for illegal drug activity and via bicycle exchange or car window exchange transactions. Because defendant appeared to be engaged in such activity in a known drug-source area, Officer Cobb testified that he and other officers went in to investigate defendant’s activities at the car wash. Similar circumstances did not justify an investigatory police detention in State v. Banks, 223 Ga. App. 838 (479 SE2d 168), because — other than the fact that the suspect was standing on the side of a street in a high-crime area in similar “stop and cop” fashion — the investigating officers did not actually see a hand-to-hand exchange transaction. In Lambright v. State, 226 Ga. App. 424 (487 SE2d 59), this Court held that such an observation was the factor which provided the investigating officers in that case with articulable suspicion for detaining and questioning the defendant. Id. at 426 (1). Since Officer Cobb did not articulate any reason for detaining defendant, in the case sub judice, other than the fact that defendant was parked at a car wash that was in a high-crime area and was talking with a man on a bicycle through his car window, we cannot say the trial court erred in determining that there were no articulable facts justifying defendant’s detention under Terry v. Ohio, 392 U. S. 1, supra.

Decided July 28, 1999.

J. Gray Conger, District Attorney, Alonza Whitaker, Assistant District Attorney, for appellant.

Michael E. Garner, for appellee.

The trial court did not err in granting defendant’s motion to suppress.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.