text:
    A98A2292.
    CULBERSON v. THE STATE.
    (512 SE2d 367)
   Ruffin, Judge.

A jury found Christopher Culberson guilty of two counts of aggravated assault. On appeal, Culberson challenges the sufficiency of the evidence for his convictions. For reasons which follow, we affirm.

“ ‘On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant ... no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ [Cit.]” Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489) (1997).

Viewed in this light, the record shows that on May 29,1997, Culberson and Wakevin Williams had plans to attend a concert that evening with Rob Stone. According to Williams, Culberson came to his house with a gun and told Williams that he wanted to rob somebody. They discussed locations that could be robbed. Williams then called Stone and told him that Culberson wanted to rob somebody. Williams testified that Stone suggested they rob Abrha Tamrat’s store, which was around the corner from his apartment.

The three walked to the store with the purpose of robbing it to get money for the concert. Stone testified that Culberson was “hyper” and “jumpy” and said, “if anybody mess with me up there, I’m going to kill them.” According to Williams, they did not discuss specific plans for how they were going to rob the store until they reached a wooded area, which was less than 30 feet behind the store. Williams had the gun, and Culberson had its clip. Stone took the gun from Williams and the clip from Culberson, loaded the gun, and gave it back to Williams. Culberson advised Williams against going into the store and told him that he should wait until the owner came out and then shoot him in the leg.

Tamrat closed his grocery store around 11:00 p.m. As he walked to his car and started to open the door, Williams shot him in his chest and leg. Tamrat was unable to identify his assailants, but he could tell that the shots came from a wooded area near his store. After Tamrat was shot, Williams, Culberson, and Stone ran away from the store. Williams testified that he ran into the woods, where he tripped and fell and dropped the gun. When he got to Stone’s apartment, he found Culberson already there, and Stone returned shortly thereafter. Williams stated that Culberson wanted to go back to the woods for the gun. On their way to look for the gun, the police stopped Culberson and Williams after someone pointed them out, and they were arrested.

Charles Oglesby testified that around 11:00 p.m. on the night of the shooting, he saw Culberson standing alone beside the apartment building, behind a bush, looking as if he were hiding. Jennifer Osterhout, who lived in the apartment complex near Tamrat’s store, testified that as she and her husband were getting ready for bed, they heard something that sounded like “fire crackers.” As they looked out their window, they noticed two men running. Osterhout later identified one of these men as Culberson. Culberson was charged with two counts of aggravated assault, and he was convicted as a party to these crimes.

Without citation to any authority, Culberson argues that the evidence, as outlined above, was insufficient to support his convictions. This contention is patently without merit. “A participant to a crime may be convicted although he is not the person who directly commits the crime. OCGA § 16-2-20. A person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime. Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime. Whether [Culberson] was a party to the crime and aided and abetted [Williams] in the . . . aggravated assault[] or intentionally advised, encouraged, or counseled [Williams] to commit the crimes was a question for the jury.” (Citations omitted.) Burks v. State, 268 Ga. 504, 505 (491 SE2d 368) (1997); see also Rivers v. State, 229 Ga. App. 12, 14-15 (2) (493 SE2d 2) (1997).

In this case, there was ample evidence to show that Culberson aided, abetted, encouraged, advised, and counseled Williams in the commission of the crimes against Tamrat. See Burks, supra. It makes no difference that Williams, and not Culberson, fired the gun that injured Tamrat, because all that the State must prove is that Culberson and the others were acting in concert. See Ford v. State, 163 Ga. App. 745, 746-747 (296 SE2d 85) (1982) (“ ‘Once [a] common design is shown by evidence tending to indicate that the individuals have associated themselves together to do an unlawful act, any act done in pursuance of that association by any one of the associates, would, in legal contemplation, be the act of each of them.’ [Cits.]”).

Specifically, Culberson suggested to Williams in the first instance that they commit a robbery in order to get money for the concert they had planned to attend that evening. Culberson provided Williams the gun to commit that robbery. While walking to Tamrat’s store, Stone testified that Culberson was acting “hyper” and that he threatened to shoot anyone who “messed with him.” Culberson also gave the gun to Williams, and shortly before the shooting, he gave Williams the gun’s clip, which was loaded with bullets. Culberson advised Williams to shoot Tamrat as he exited his store. After the shooting, Culberson advised Williams that they needed to find the gun because it had his fingerprints on it. Osterhout positively identified Culberson as one of the people she saw running from the area in which the shooting took place. Oglesby also testified that he observed Culberson hiding behind a bush when the police arrived at the scene.

The fact that Stone and Williams may have given contradictory, or even biased, testimony regarding Culberson’s role in the armed robbery does not change our result. “Although the co-defendants each tried to appear less culpable than the other and in so doing disagreed on many points, their testimony with regard to [Culberson’s] aid to them was sufficiently corroborative to establish that [Culberson] was a party to the [aggravated assault].” Allen v. State, 224 Ga. App. 324, 325 (3) (480 SE2d 328) (1997). For instance, Williams and Stone both testified that Culberson was with them throughout the entire incident, and that he wanted to return to the woods to retrieve the gun following the shooting. Both also testified that Culberson had the clip to the gun until shortly before the shooting. Moreover, “[t]he weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness [,] for it is the function of the triers of fact to determine to what evidence it gives credence. It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence. Rather, on appeal, we indulge every contingency in favor of the verdict.” (Citations and punctuation omitted.) Norris v. State, 220 Ga. App. 87, 88 (1) (469 SE2d 214) (1996).

Decided February 16, 1999.

Maryann F. Blend, for appellant.

J. Tom Morgan, District Attorney, Thomas S. Clegg, Noah H. Pines, Assistant District Attorneys, for appellee.

Thus, upon viewing the evidence in the light most favorable to the jury’s verdict, we find that there was sufficient evidence upon which a rational trier of fact could find Culberson guilty beyond a reasonable doubt as a party to the crime of aggravated assault. See Burks, supra; Jackson v. Virginia, supra.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A99A0179.
    BYRD v. THE STATE.
    (512 SE2d 372)
   Johnson, Chief Judge.

A jury found Roosevelt Byrd, Jr. guilty of three counts of armed robbery and three counts of possession of a firearm during the commission of a felony. Byrd appeals his convictions and sentence. We affirm.

1. Byrd contends the state failed to prove he was guilty beyond a reasonable doubt. We disagree. Pursuant to OCGA § 16-8-41 (a), an individual commits the offense of armed robbery when he, with intent to commit theft, takes property of another from the person or the immediate presence of another by use of an offensive weapon or any device having the appearance of such weapon. The offense of possession of a firearm during the commission of a felony is defined in OCGA § 16-11-106 (b) (1).

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that on November 25, 1996, two armed men entered Carver State Bank and proceeded to take money from a bank teller. At trial, the bank teller identified Byrd as being similar in appearance to the robber who came to her window, but testified that Byrd was clean-shaven. She further testified that she was positive that the picture she selected after the robbery depicted the robber. An FBI agent testified that the teller had selected Byrd’s photograph after the robbery.

On January 4, 1997, a lone gunman entered Coastal Bank, took money from a teller, and fled. Three witnesses identified Byrd as the robber.

Circumstantial evidence also linked Byrd to the two robberies. Byrd wore a baseball cap during both robberies, cursed at the tellers, displayed a large black gun, brought his own bag to carry the money, knew his co-defendant, and changed his appearance for trial. The jury also heard evidence of a similar transaction armed robbery.

Although Byrd points to conflicts in the witnesses’ identifications, it is the jury’s function, not the appellate court’s, to resolve conflicts in the testimony and determine the credibility of the witnesses. Mathis v. State, 224 Ga. App. 521, 522 (1) (481 SE2d 256) (1997). Construed in a light most favorable to support the jury’s verdict, the evidence was sufficient to authorize a rational trier of fact to find Byrd guilty beyond a reasonable doubt of the offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Mathis, supra.

2. Byrd alleges the trial court erred in denying his motion for a mistrial because a GBI agent read aloud the entirety of Byrd’s confession to the similar transaction. During this confession, Byrd mentioned that he had been “arrested three weeks ago for theft by receiving on some air conditioning units.” According to Byrd, this statement placed his character in issue. We disagree. “It is no valid ground of objection to the admission into evidence of an incriminating statement made by the accused in a criminal case that the language indicated that the accused had committed another offense.” (Citations and punctuation omitted.) Postell v. State, 226 Ga. App. 843, 845 (487 SE2d 422) (1997); Colquitt v. State, 196 Ga. App. 817 (1) (397 SE2d 164) (1990). Moreover, the trial court gave curative instructions.

3. The trial court correctly rejected Byrd’s motion to sever parties. “The defendant requesting severance has the burden of doing more than raising the possibility that a separate trial would give him a better chance of acquittal. He must demonstrate a clear showing of prejudice and a consequent denial of due process in the absence of severance. [Cit.]” Smith v. State, 267 Ga. 372, 373 (2) (477 SE2d 827) (1996). Byrd failed to do this.

Despite Byrd’s arguments, the record shows that much of the same evidence and many of the same witnesses would have been produced even if the trials had been severed. Moreover, given the fact that only two defendants were on trial, it was highly unlikely that the jury would be confused and unable to follow the evidence as to each defendant. See Loren v. State, 268 Ga. 792, 795 (2) (493 SE2d 175) (1997). Indeed, the jury demonstrated its ability to consider the defendants separately when it returned different verdicts for the two defendants: the jury found Byrd guilty of the armed robberies at the Carver and Coastal banks but not guilty of the armed robbery at Candler Federal Credit Union; however, it found Byrd’s co-defendant guilty of the armed robbery at Candler Federal Credit Union but not guilty of the armed robbery at the Carver bank. This enumeration lacks merit.

4. Byrd also alleges the trial court erred in refusing to sever offenses. We disagree. “Severance is mandatory, upon defense request, if offenses are joined improperly, i.e., solely because they are of the same or similar ‘character.’ [Cits.]” Smith v. State, 225 Ga. App. 553 (1) (484 SE2d 515) (1997). The state met its burden of showing the offenses were not joined solely on the basis that they were of the same or similar character. The cases all involved financial institutions where only tellers were robbed. They all occurred within the city limits of Savannah. All three armed robberies occurred within forty days, with the earliest occurring at 10:30 a.m. and the latest at 12:45 p.m. Each robbery involved the use of a firearm. In each, the robbers brought their own bag for the money and only took U. S. currency. As in Smith, 225 Ga. App. 553, the similarities among the bank robberies go beyond what would have to be similar simply because the charges are the same; the similarities are so extensive as to demonstrate a common course of conduct and bent of mind. Id. at 555. Accordingly, severance was not mandatory. See Dewinters v. State, 232 Ga. App. 318, 319 (1) (501 SE2d 849) (1998).

Byrd also argues that even if severance was not mandatory, it was still required due to the complexity of the case. We disagree. When a defendant argues for severance based on the trial court’s discretion, it is his burden to demonstrate that severance should be granted because of one or more discretionary concerns. Smith, 225 Ga. App. at 554. In rendering its decision, the trial court should consider whether in view of the number of offenses charged and the complexity of the evidence to be offered, the jury will be able to distinguish the evidence and apply the law intelligently as to each offense. Dingler v. State, 233 Ga. 462, 463-464 (211 SE2d 752) (1975). As stated previously, based on the verdict rendered by the jury, it is clear the jury distinguished the evidence and applied the law intelligently as to each of the offenses. The trial court did not abuse its discretion in denying Byrd’s motion to sever the offenses.

5. The trial court did not err in admitting evidence of an armed robbery to which Byrd pled guilty ten years before the present armed robberies. Byrd focuses on the differences between the past armed robbery and the present armed robberies. However, as the Supreme Court has noted, the correct focus is on the similarities between the offenses. Farley v. State, 265 Ga. 622, 624 (2) (458 SE2d 643) (1995). In the present case, all the robberies occurred during daylight, all occurred in southeast Georgia, all involved accomplices, all occurred inside businesses, and only tellers or individuals in charge of money were robbed. Based on these similarities, we find no error in the trial court’s admission of this evidence. See Colquitt, supra at 818 (2).

6. Byrd contends the trial court erred in admitting similar transaction evidence because it made no determination on the record that (a) the independent offense was sufficiently similar to the charged offense so that proof of the former tended to prove the latter or (b) the independent offense was admitted for some lawful purpose other than to place the defendant’s character into evidence. Before a similar act can be admitted into evidence, the trial court must make an affirmative determination on the record that (1) the evidence is being admitted for a permissible purpose, (2) there is sufficient evidence to establish the defendant’s identity as the perpetrator of the independent offense, and (3) there is sufficient similarity between the independent offense and the similar act so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

(a) Contrary to Byrd’s argument, the trial court did make an affirmative finding on the record that the independent offense and the similar act were sufficiently similar so that proof of the former tends to prove the latter. Following the similar transaction hearing, the trial court stated: “The Court will find in each instance that the similarities are sufficient to send it to the jury and I will enter an order to that effect.” Subsequently, the trial court filed its Similarity Order and Findings, which states: “The Court further finds that there is a sufficient connection or similarity between the independent acts or crimes for which defendants are being tried for the issue to be submitted to the jury.” This enumeration lacks merit.

(b) Likewise, Byrd’s argument regarding the similar transaction purpose determination lacks merit. During the similar transaction hearing, the trial court specifically asked the state about the purposes for introduction of the similar transaction evidence. The state responded. In allowing the evidence, the trial court’s Similarity Order and Findings states: “The Court finds the state through its counsel seeks to introduce evidence of similar crimes for the appropriate purpose of showing identity, scheme and modus operandi and state of mind including intent of defendants in the armed robberies and use of firearms.”

(c) Byrd further contends the trial court erred in admitting the similar transaction evidence without first balancing the probative value of the evidence against its prejudicial impact. We disagree. As the Supreme Court has stated: “Appellant erroneously cites Adams v. State, 208 Ga. App. 29, 34 (3) (a) (430 SE2d 35) (1993)[,] as authority for imposing an unnecessary requirement upon a trial court to make an express balancing determination as between probative value and prejudice as a condition to admission of ‘other transaction’ evidence. Only four judges concurred in Division 3 of Adams, whereas five judges did not. Accordingly, Division 3 of Adams is not binding authority and is a physical precedent only by virtue of the Court of Appeals own Rule 33 (a). Moreover, Adams' conclusion that such an express balancing determination is mandated appears to have been created ex nihilo because none of the cases cited supports such a requirement.” Farley, supra at 625-626 (2). Thus, this issue provides no basis for reversal.

(d) Even if the trial court erred by failing to make specific findings on the record that each of the elements enunciated in Williams for admission of the evidence was satisfied, no harmful error occurred because, as we stated in Division 5, the evidence was sufficient for the trial court to have concluded that the Williams' requirements were satisfied. Farmer v. State, 231 Ga. App. 78, 79 (1) (498 SE2d 559) (1998); Parker v. State, 220 Ga. App. 303, 306 (5) (469 SE2d 410) (1996).

7. Byrd contends OCGA § 17-10-6.1, which dictates the punishment for serious violent offenders, in conjunction with OCGA § 17-10-7, the sentencing statute applicable to recidivist armed robbers, violates the cruel and unusual punishment clause of the Eighth Amendment of the United States Constitution and Art. I, Sec. I, Par. XVII of the Georgia Constitution. This issue has already been decided adversely to Byrd in Ortiz v. State, 266 Ga. 752, 753 (2) (470 SE2d 874) (1996). Thus, this enumeration lacks merit.

8. Byrd next contends that OCGA § 17-10-6.1 violates the. separation of powers doctrine of Art. I, Sec. II, Par. III of the Georgia Constitution. However, this issue is controlled adversely to Byrd by Campbell v. State, 268 Ga. 44, 45 (2) (485 SE2d 185) (1997).

9. The trial court did not err in denying Byrd’s motion to merge two armed robbery counts that involved different victims. According to Byrd, both armed robberies at Coastal Bank were part of a continuous criminal act: Byrd first robbed one teller, then demanded that a second teller come from her station at the drive-in window and give him money from her window. However, sequential armed robberies of different victims at the same site cannot be merged in fact or law. State v. Smith, 193 Ga. App. 831, 832 (1) (389 SE2d 547) (1989).

10. Byrd contends the trial court did not clearly instruct the jury that each defendant’s similar acts could be considered only in relation to that particular defendant. We disagree.

After the admission of both similar acts at trial, the trial court instructed the jury: “If you believe such has been proven beyond a reasonable doubt, you are, however, strictly limited in your consideration of the evidence in this case as to show identity, to show bent of mind, to show course of conduct of the particular defendant which is alleged to be a similar transaction or offense.” After the conclusion of the trial, along with other limiting instructions for transaction evidence, the trial court charged: “Each defendant is entitled to have the case decided just on the evidence which applies to that particular defendant. Some of the evidence in this case is limited under the rules of evidence to one of the defendants and cannot be considered against the other defendant, just as I have mentioned about the similar circumstance. They are two separate instances and only one applies to one defendant and the other applies to the other defendant. You cannot criss-cross [sic] them and make them apply to both defendants.”

Decided February 16, 1999

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

Evaluating the charge as a whole, which we must do, this charge is sufficient to prevent Byrd from being prejudiced by his co-defendant’s similar transaction. See Howard v. State, 220 Ga. App. 267, 270 (2) (469 SE2d 396) (1996).

Judgment affirmed.

Ruffin, J, and Senior Appellate Judge Harold R. Banke concur.


author: Eldridge, Judge.

text:
    A99A0616.
    BANKERS TRUST COMPANY v. JACKSON et al.
    (512 SE2d 378)
   Eldridge, Judge.

This action arose below as an appeal to the Superior Court of Chatham County from final decisions of the State Revenue Commissioner denying refund claims made pursuant to OCGA § 48-6-76 for intangible recording taxes paid by Bankers Trust Company, as required by OCGA §§ 48-6-61 and 48-6-69, in order to record certain long-term notes secured by real property.

In superior court, Bankers Trust Company named as defendants the appellees, T. Jerry Jackson, Commissioner of the Georgia Department of Revenue; Susan D. Prouse, Clerk of the Superior Court of Chatham County; Carol Webb, Clerk of the Superior Court of DeKalb County; and Juanita Hicks, Clerk of the Superior Court of Fulton County, and challenged the State Revenue Commissioner’s interpretation and administration of OCGA § 48-6-69, which pertains to the calculation of the intangible recording tax for nonresidents filing long-term notes secured by real property both within and without the state. The parties submitted cross-motions for summary judgment, and the trial court issued an order on September 29, 1998, upholding the State Revenue Commissioner’s decision. From the superior court’s judgment, Bankers Trust Company filed a direct appeal to this Court. The appellees filed a motion to dismiss and requested that Bankers Trust Company’s appeal be dismissed for failure to follow the procedure set out for discretionary appeal contained in OCGA § 5-6-35 (a) (1).

Under OCGA § 5-6-35 (a) (1), all appeals from decisions of the superior courts reviewing decisions of the Commissioner of the Department of Revenue for the State of Georgia, with the exception of cases involving ad valorem taxes, are by discretionary appeal. See, e.g., Collins v. American Tel. &c. Co., 265 Ga. 37 (456 SE2d 50) (1995) (appellate review of superior court’s ruling overturning an income tax ruling of the State Revenue Commissioner is by grant of a discretionary appeal); Miles v. Collins, 259 Ga. 536 (384 SE2d 630) (1989) (appellate review of superior court’s ruling upholding a ruling of the State Revenue Commissioner on a tax assessment is by grant of a discretionary appeal); Plantation Pipe Line Co. v. Strickland, 249 Ga. 829 (294 SE2d 471) (1982) (discretionary review procedure must be followed where appellant sought review of a superior court’s decision reviewing a Department of Revenue assessment for a deficiency in the appellant’s corporate net worth taxes); Wheeler v. Strickland, 248 Ga. 85 (281 SE2d 556) (1981) (an appeal from superior court’s review of an official Department of Revenue notice of assessment and demand for payment of sales tax must be by discretionary review). There is no statutory authority that gives an appellant a right of direct appeal from a review by the superior court of the State Revenue Commissioner’s denial of a refund of an intangible recording tax. See OCGA § 48-6-60 et seq.

Bankers Trust Company makes the argument that the intangible tax imposed on long-term notes secured by real estate is an ad valorem tax imposed on the increments of value of the security instrument being recorded. However, the intangible tax imposed by OCGA § 48-6-61 is analogous to the real estate transfer tax imposed by OCGA § 48-6-1. Both are based on increments in the value of the instrument being recorded and are calculated in the same manner. At the recording of the security instrument, “[t]here is imposed on each instrument an intangible recording tax at the rate of $1.50 for each $500.00 or fraction thereof of the face amount of the note secured by the recording of the security instrument.” OCGA § 48-6-61. At the recording of an instrument conveying title to real property, “[t]here is imposed a tax at the rate of $1.00 for the first $1,000.00 or fractional part of $1,000.00 and at the rate of 10 [cents] for each additional $100.00 or fractional part of $100.00 on each deed, instrument, or other writing,” when the consideration or value of the property conveyed exceeds $100. OCGA § 48-6-1.

This Court has treated the real estate transfer tax as an excise tax. “ ‘The Real Estate Transfer Tax is not a property tax; it is an excise tax on transactions involving the sale of property. It is paid by the transferor each time he sells a parcel of real estate for the privilege of selling that particular property. The amount of the tax is based on the sales price of the property; it is not a tax on the property as such, as is the ad valorem tax which is charged against the owner of the property or against the specific property. (Cit.)’ City of Columbus v. Ronald A. Edwards Constr. Co., 155 Ga. App. 502, 503 (271 SE2d 643) (1980). See Higdon v. Gates, 238 Ga. 105, 107 (231 SE2d 345) (1976).” (Emphasis in original.) CC Office Assoc. v. DeKalb County, 219 Ga. App. 101, 103 (464 SE2d 243) (1995).

Decided February 16, 1999.

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, James P. Robertson, Jr., for appellant.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Senior Assistant Attorney General, Michele M. Young, Warren R. Calvert, Assistant Attorneys General, for appellees.

Likewise, intangible taxes imposed on long-term notes secured by real estate are paid for the privilege of filing a document to protect the note secured by the recording of the security instrument, and the fact that it is based on the value of the property is only ancillary. It is, therefore, an excise tax and not an ad valorem tax. Since there is no specific statutory exemption allowing a direct appeal from a superior court’s review of the State Revenue Commissioner’s denial of a request for refund of intangible recording taxes, an appeal must be perfected by filing an application for discretionary appeal, which was not done in this case. Therefore, this direct appeal must be dismissed.

Appeal dismissed.

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


author: Smith, Judge.

text:
    A98A1697.
    JACKSON v. THE STATE.
    (512 SE2d 24)
   Smith, Judge.

Following a bench trial, Miquel Jackson was convicted of three counts of armed robbery. He appeals, raising as error the trial court’s denial of his motion to suppress. “On review of a decision on a motion to suppress, we will construe the evidence most favorably to uphold the trial court’s findings, and we will adopt the trial court’s determinations on disputed facts and credibility if there is any evidence to support them. [Cit.]” McFadden v. State, 218 Ga. App. 327, 328 (461 SE2d 542) (1995). See also Gray v. State, 207 Ga. App. 648, 650 (2) (428 SE2d 663) (1993). So construing the evidence presented during the hearing on Jackson’s motion and at trial, we conclude that the trial court did not err in denying Jackson’s motion to suppress the evidence seized as the fruit of his arrest.

The evidence showed the following facts with regard to Jackson’s arrest. Detective Capus Long with the Atlanta Police Department was involved in the investigation of a series of armed robberies that occurred in three pawn shops on February 11, March 6, and March 7, 1995. He obtained, from victims and witnesses, detailed descriptions of the vehicle used during each of these robberies, as well as one of the perpetrators. The car was described to Long as an “ ‘80s model” light blue Chevrolet Caprice with a dark blue vinyl top, having chrome around the windows and wheels with silver “hammer” or spiked rims. The car was videotaped during the March robberies, and one witness testified that one videotape showed “a full view of the car.” Long testified that he watched these videotapes “over and over.” Long also learned from witnesses that one suspect was a tall black male in his early twenties with a slim build, dark complexion, close cut hair, thick lips, and a thick, wide nose. This individual was further described as being about six feet tall and weighing one hundred eighty pounds. At least one of these videos captured the perpetrators of one of the March robberies entering the pawn shop.

While investigating the February and March robberies for which Jackson was ultimately charged, Long testified that he learned of a similar pawn shop armed robbery during which a victim’s purse had been stolen. The purse was found shortly after the robbery under a bridge. Long drove to the neighborhood surrounding the bridge and saw a parked car matching the description of the one used during the February and March robberies. He stated that the car was “pretty much identical to the one that I had observed in the video.” He observed the car from about “a block away” until two individuals entered it. One was a woman and the other a “tall, dark-skinned complexion black male.” According to Long, the man appeared to “definitely match the description of the suspect given to me.”

Long radioed for assistance and followed the car until it was stopped by a uniformed officer in a marked patrol car. He testified that he approached the car and identified himself and that Jackson was removed from the vehicle. After explaining to Jackson the investigatory purpose of the stop, because Jackson was a suspect in armed robberies and was considered to be “extremely violent,” Long handcuffed Jackson for his own safety as well as that of other officers at the scene. While handcuffing Jackson, he noticed that Jackson was wearing a watch matching the description of a Rolex watch stolen from one of the pawn shops. Long testified that when he began handcuffing Jackson for safety reasons Jackson was not under arrest; instead, he was being detained for the purpose of investigation. But when Long observed the watch on Jackson’s wrist, he placed Jackson in a patrol car and considered him to be under arrest at that time.

Jackson filed a motion to suppress all evidence seized as the result of his arrest. After hearing evidence, the trial court denied the motion, concluding as follows: “I find there was a reasonable articulable suspicion to stop this vehicle. I don’t think it was reasonable for the officer, Officer Long or whoever the officer was to handcuff the defendant at that time. I do think [there] was probable cause to arrest the defendant. I think that probable cause existed before the stop.”

1. We find no merit in Jackson’s contention that Long lacked articulable suspicion to stop him for investigatory purposes. An officer may conduct a brief investigative stop of a vehicle if that stop is “justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Citations and punctuation omitted.) Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994). In determining whether an investigatory stop met these requirements, “we examine whether the detaining officer had a particularized and objective basis for reasonably suspecting that the particular individual stopped was or had been engaged in criminal activity.” (Footnote omitted.) Thomason v. State, 268 Ga. 298, 301 (2) (a) (486 SE2d 861) (1997).

Applying these principles here, we conclude that Long’s initial stop of Jackson was supported by reasonable and articulable suspicion that Jackson had been involved in criminal activity. Long “had more than a generalized description of the suspect he was seeking and the car he was driving.” Thomason, supra. Long had viewed “over and over” videotapes that depicted the car, and he also relied on the detailed descriptions he received from witnesses to the robberies. In addition to knowing the make and colors of the car, he was familiar with distinguishing characteristics of the wheels and windows. Furthermore, in Thomason, the suspect’s gender and race, in addition to a particularized description of his car, were apparently sufficient to afford an articulable suspicion to stop the suspect’s car. But here, Long had been provided with more information than the officer in Thomason concerning the suspect’s appearance; Long knew details concerning his race, gender, weight, height, hairstyle, complexion, and facial features. This case is therefore distinguished from Vansant, supra, in which the detaining officer stopped defendant based only on the fact that he was driving a white van. See Thomason, supra at 301. This detention was initiated upon a much more particularized description of the suspect vehicle, id., as well as a detailed description of Jackson. Long was therefore provided “with the requisite particularized basis to warrant the investigative stop of [Jackson].” (Footnote omitted.) Id.

Decided February 3, 1999

Reconsideration denied February 17, 1999.

Richard D. Hobbs, for appellant.

2. Jackson also contends that the trial court erred in finding probable cause to stop his vehicle and to arrest him. In addressing this enumeration, we do not reach the issue of whether the trial court correctly ruled that probable cause to stop Jackson existed before the stop was effectuated. Only an articulable suspicion was necessary, and as discussed above, Long was authorized to conduct a brief investigatory stop of Jackson’s vehicle. During Long’s investigation, while handcuffing Jackson, he discovered a watch matching the description of one stolen during one of the robberies under investigation. Once Long discovered the stolen watch, he was authorized to arrest Jackson. See Watson v. State, 181 Ga. App. 512, 513-514 (3) (352 SE2d 828) (1987); Evans v. State, 162 Ga. App. 78 (290 SE2d 176) (1982).

Although the watch was discovered while Long was detaining Jackson by handcuffing him, this does not invalidate the arrest. The trial court denied the motion to suppress, but only after stating that handcuffing Jackson was unreasonable. We disagree with the trial court’s statement. Under the limited circumstances of this case we do not find Long’s actions unreasonable. As stated in White v. State, 208 Ga. App. 885, 888 (2) (432 SE2d 562) (1993), an officer conducting a stop “remains particularly vulnerable during such a stop precisely because a full custodial arrest has not been effected, [and] the officer must make quick decisions as to how to protect himself and others from possible danger. In determining whether an officer’s conduct during an investigatory stop was proper, the inquiry is not whether the officer could validly have acted similarly but whether under the same circumstances a reasonable officer would have done so.” (Citations and emphasis omitted.) See also Pless v. State, 218 Ga. App. 603, 605-606 (2) (462 SE2d 472) (1995). Jackson was a suspect in three armed robberies and was believed to be “extremely violent,” and Long knew that the suspect “was going in shooting through the ceiling at people.” Given these facts, we find Long’s actions in handcuffing Jackson for safety purposes “reasonable under the circumstances, and therefore lawful as part of the investigatory stop.” White, supra at 888 (2). We find no error in the trial court’s conclusion that probable cause existed for Jackson’s arrest, and we affirm the denial of his motion to suppress.

Judgment affirmed.

Johnson, C. J., and Barnes, J., concur.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Jamie L. Mack, Assistant District Attorneys, for appellee.


author: Beasley, Presiding Judge.

text:
    A98A2230.
    In re ESTATE OF WILSON.
    (512 SE2d 383)
   Beasley, Presiding Judge.

The tragic crash of ValuJet Flight 592 in the Florida Everglades on May 11, 1996, killed Teresa K. Wilson, who died intestate. Brent Hinely filed an application for letters of administration with the probate court, claiming he was Teresa’s common-law husband. Teresa’s father, Nelson Wilson, filed a caveat to challenge the existence of a common-law marriage. After a lengthy bench trial, the probate court found that a common-law marriage did not exist, denied Hinely’s application, and appointed Nelson Wilson as estate administrator. Hinely appeals on general grounds, arguing that the court did not consider numerous significant facts and the entirety of the evidence.

1. In its 11-page detailed order, the court emphasized that it “carefully considered all evidence in this case, including the credibility and weight to be given to the testimony and other evidence of the parties.” The court found “Hinely’s testimony, as well as the testimony of many of his witnesses to be evasive and frequently incredible. The testimony of Hinely on issues material to the outcome of the case was not credible and was impeached.” The evidence Hinely claims the court overlooked is merely a repetition of the testimony found incredible.

“When the alleged marriage is unlicensed and nonceremonial, the burden is on the proponent to prove that a common-law marriage existed. In order for a common law marriage to come into existence, the parties must be able to contract, must agree to live together as man and wife, and must consummate the agreement.” “An agreement to marry in the future is insufficient to establish a common law marriage. Such a bond can be established under OCGA § 19-3-1 only by an express, present marriage contract.”

Teresa Wilson and Hinely had the capacity to contract. The dispute is whether they agreed to live together as man and wife and consummated the agreement. This “may be inferred from proof of cohabitation and that the parties held themselves out to the world as husband and wife, and such proof may be made by general repute among neighbors and others in a position to know the facts. . . . While it is the rule that cohabitation, illicit in its inception, will be presumed to have so continued throughout the period of cohabitation, yet if. . . the cohabitation is continued, and the parties thereafter hold themselves out as man and wife, if the original illegal cohabitation was had in the absence of an attempted ceremonial marriage, a new and valid agreement of marriage will be presumed to have been entered upon, in the absence of anything appearing to the contrary.” But the “legal relationship cannot be partial or periodic.”

Hinely presented evidence that he and Teresa cohabited from 1992 until her death in 1996 and that in 1993 they agreed to be married under common law as man and wife. He also elicited testimony that they had referred to each other as husband and wife, had been viewed as such at times by family, friends and neighbors, and that his grief at her death was consistent with a marriage relationship.

The court found this testimony incredible, and for good reason. The overwhelming weight of the evidence, particularly when construed in Nelson Wilson’s favor, disproves Hinely’s contentions.

(a) Soon after Teresa’s death, Hinely handwrote a note admitting to Nelson Wilson “that I was never common law married to Teresa Kim Wilson.”

(b) In 1995, Hinely moved from the couple’s joint residence on Tybee Island, which Teresa owned, to take a job in Atlanta; Teresa moved to Swainsboro to work with her father. The cohabitation ended, with only weekend visits to Tybee Island.

(c) Numerous neighbors, co-workers, and family members testified that Hinely and Teresa Wilson did not refer to each other as husband and wife. Teresa’s family referred to him as the “soon-to-be” son-in-law.

(d) In 1994 Hinely gave Teresa an “engagement” ring, which Teresa displayed to others as evidence the couple intended to be married in the future. In the fall of 1994, the couple obtained a marriage license, telling friends they might now get married. But they never followed through.

(e) In response to a direct question from a salesman in April 1996, Teresa stated they were not married.

(f) After 1993 the couple consistently referred to each other as fiancé in conversations with friends and associates. Hinely’s mother referred to Hinely as Teresa’s fiancé in interviews with reporters following the crash. In 1995 Hinely told an associate he had just asked Teresa for her hand in marriage.

(g) In a sworn complaint filed with the Gwinnett County Board of Realtors in 1995, Hinely referred to Teresa Wilson as his fiancé. They filed separate tax returns in 1995, in which they stated under penalty of perjury they were single. In a 1995 FHA loan application, they likewise stated under penalty of perjury they were unmarried. Hinely signed a W-4 form in 1994 stating under penalty of peijury he was single. In 1994 Teresa Wilson sent a letter to a credit card company stating she was single.

(h) In post-1993 employment documents Teresa Wilson and Hinely repeatedly indicated they were unmarried. After Teresa’s death, Hinely surreptitiously altered a company memo he had authored in 1995 to change a reference to Teresa as his fiancé to Teresa as his wife. He then listed the altered document in his pretrial order as evidence of the marriage. In mid-1996 he changed some life insurance designations at work to indicate Teresa (then dead) would be a beneficiary as his wife. Other questionable conduct included offering witnesses a share of the estate if he prevailed in his claim.

(i) Teresa Wilson never adopted Hinely’s last name, even though in two previous marriages she had adopted the last name of her husbands.

(j) Teresa told her friends in 1995 and 1996 that she had no intention of marrying Hinely, that he was not the man for her, and that she was not ready to get married.

The existence of a common-law marriage is a question for the trier of fact. The trier weighs the credibility of witnesses and the weight of the evidence. If there is any evidence to support the finding of no marriage, the decision must be upheld. In this case, where a jury was waived, “[t]he trial judge may hear evidence to determine whether a marriage exists, and his decision will not be disturbed on appeal if there is any evidence to support his finding.” In consideration of the record, then, we hold as we did in Frazier v. State that “[although the evidence is in conflict, there exists some evidence to support the trial court’s finding of the nonexistence of a common law marriage, and we will not disturb that finding on appeal.” In this case the evidence is abundantly more than “any.” The facts as found do not constitute a common-law marriage as a matter of law.

Decided February 17, 1999.

Ashman, Lasky & Cooper, Charles R. Ashman, Brian E. Krapf, for appellant.

Simon, Booth, Cook & Cardillo, Robert R. Cook, Lawrence E. Newlin, for appellee.

2. This Court declines Nelson Wilson’s request to impose a Rule 15 (b) frivolous appeal penalty against Hinely and his counsel.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       (Citations and punctuation omitted.) Holmes v. Holmes, 232 Ga. App. 434 (1) (502 SE2d 294) (1998). See OCGA § 19-3-1; Dismuke v. C & S Trust Co., 261 Ga. 525, 526 (1) (407 SE2d 739) (1991) (“the party asserting the existence of the common-law marriage must establish its existence by a preponderance of the evidence”); Wright v. Goss, 229 Ga. App. 393, 394 (1) (494 SE2d 23) (1997) (burden on the proponent to prove common-law marriage); Frazier v. State, 219 Ga. App. 768, 770 (1) (467 SE2d 338) (1996) (“the party asserting a common law marriage must prove its existence to a preponderance of the evidence”) (citations and punctuation omitted); Dixon v. State, 217 Ga. App. 267, 268 (456 SE2d 758) (1995) (same). See generally Brown v. State, 208 Ga. 304, 306 (1) (a) (66 SE2d 745) (1951).

        Holmes, supra, 232 Ga. at 434 (1).

       Brown, supra, 208 Ga. at 306; see Wright, supra, 229 Ga. App. at 394 (1); Fireman’s Fund Ins. Co. v. Smith, 151 Ga. App. 270, 271 (1) (259 SE2d 675) (1979).

       (Citation and punctuation omitted.) Wright, supra, 229 Ga. App. at 395; Baynes v. Baynes, 219 Ga. App. 848, 849 (1) (467 SE2d 195) (1996).

       (Citations and punctuation omitted.) Frazier, supra, 219 Ga. App. at 770 (1).

       Id. See Spivey v. Spivey, 236 Ga. 725 (1) (225 SE2d 288) (1976) (“[n]o case has been cited and none has been found where one party denied the existence of an actual contract of marriage and the jury finding in favor of such party has been set aside, no matter how compelling the evidence to the contrary might be”).

        Wright, supra, 229 Ga. App. at 394 (1); Fireman’s Fund, supra, 151 Ga. App. at 271 (1).

        Baynes v. Baynes, supra, 219 Ga. App. at 849 (1).

        Jordan v. State, 267 Ga. 442, 446 (2) (480 SE2d 18) (1997) (no marriage found in light of conflicting evidence); Conyers v. State, 249 Ga. 438, 441 (3) (291 SE2d 709) (1982) (no marriage where evidence equivocal); Baynes, supra, 219 Ga. App. at 849 (1) (no marriage despite appellant’s testimony); Lattimore v. State, 175 Ga. App. 756 (2) (334 SE2d 701) (1985) (no marriage where conflicting evidence).


text:
    A98A2268.
    NEBRASKA PLASTICS, INC. v. HARRIS et al.
    (512 SE2d 388)
   Smith, Judge.

The issue in this appeal is whether the trial court correctly concluded that the parties to a contract were relieved of their obligations by an alleged subsequent agreement. Because we conclude that genuine issues of material fact exist as to whether the parties entered into a valid subsequent agreement and, if so, whether an accord and satisfaction occurred, we reverse.

In January 1997, Nebraska Plastics, Inc. (Nebraska Plastics) entered into a “warehousing agreement” with Howard Harris and Lee Harris, d/b/a Country Estate Fence of Georgia (collectively referred to as “CEFG”), for the warehousing, fabrication, and distribution of “Country Estate Fence” products. Under this agreement, Nebraska Plastics consigned inventory to CEFG, and CEFG was required to promote and fabricate “Country Estate Fencing.” Among other things, CEFG also agreed to provide to Nebraska Plastics a month-end count of all consigned inventory and a surety bond in the amount of $500,000. The warehousing agreement also contained a provision permitting termination upon service of a 90-day written notice delivered by certified mail.

The record also contains a subsequent agreement reciting the parties’ desire to terminate the warehousing agreement. Under this “termination agreement” Nebraska Plastics was required to pick up remaining consigned inventory in the possession of CEFG, and simultaneous with the loading of this inventory, the parties were to take a physical inventory. The agreement also stated that the warehousing agreement would be terminated “[u]pon the completion of Nebraska Plastics, Inc.’s pick-up of the remaining consigned inventory.”

Nebraska Plastics filed this action alleging breach of the warehousing agreement and conversion. According to the complaint, CEFG repudiated the warehousing agreement by informing Nebraska Plastics that it no longer intended to perform its obligations under it and breached the warehousing agreement by failing to provide an accurate count of the consigned inventory, to insure the property, and to provide a surety bond. The conversion count was based on CEFG’s alleged refusal to return all inventory, equipment, and property in its possession. Upon CEFG’s motion, the trial court granted summary judgment to CEFG, concluding that the termination agreement served as an accord and satisfaction of any claims arising from the warehousing agreement.

We agree with Nebraska Plastics that summary judgment was erroneously granted in favor of CEFG. To prevail on summary judgment, the movant has the burden of showing that no genuine issues of fact exist for jury resolution. OCGA § 9-11-56; Popovich v. Bekaert Corp., 222 Ga. App. 395 (474 SE2d 286) (1996). CEFG has failed in this regard.

Several genuine issues of fact exist for jury resolution. An issue exists, for example, as to whether the parties entered into a binding contract terminating the warehousing agreement. The termination agreement was not signed by all parties. It is true that assent to a contract may be given without signatures. Century 21 Pinetree Properties v. Cason, 220 Ga. App. 355, 356 (2) (a) (469 SE2d 458) (1996). But here, we cannot determine as a matter of law that all parties assented to the termination agreement. It appears from the limited record before us that Nebraska Plastics drafted the agreement and offered it to CEFG. After the agreement was signed on CEFG’s behalf by Lee Harris and Howard Harris, counsel for CEFG then sent, via fax, a letter to the president of Nebraska Plastics, Rex German, reciting that it was accompanied by a copy of the signed termination agreement. Counsel recited his understanding that the agreement superseded and terminated the warehousing agreement and specifically stated, “If this Termination Agreement is still acceptable, please have the same executed by you . . . and fax a copy of same to me as soon as possible. Once the Termination Agreements [sic] have been fully executed we can proceed with a timely and orderly settlement of this matter.” This statement was some evidence showing that CEFG believed that no binding contract had yet been achieved and, conversely, that the termination agreement would become binding only after the president of Nebraska Plastics signed it. Although signature lines for German appeared on the termination agreement, it does not appear from the record that anyone on behalf of Nebraska Plastics signed this agreement. Questions of fact clearly exist as to whether the parties entered into an enforceable agreement.

Moreover, even were we to assume that a valid termination agreement was created, questions of fact exist as to whether that agreement constituted an accord and satisfaction. We first note that the warehousing agreement contains a choice of law provision reciting that the agreement shall be governed under the laws of Nebraska. But neither party has asserted this provision either below or in this court. In fact, both parties argue Georgia law with regard to whether an accord and satisfaction occurred. We therefore consider only Georgia law in addressing the issue. See Rohm & Haas Co. v. Gainesville Paint &c. Co., 225 Ga. App. 441, 443 (2) (b), n. 3 (483 SE2d 888) (1997) (where parties presented Georgia law to trial and appellate courts despite choice of law provision requiring that law of another state govern, mutual departure from provision occurred).

As argued by CEFG, the termination agreement provided for termination of the warehousing agreement when Nebraska Plastics picked up its remaining consigned inventory. The parties do not appear to dispute that they eventually completed the return of the consigned inventory in CEFG’s possession. Assuming, without deciding, that the termination agreement was binding on the parties, we therefore also assume that the warehousing agreement was terminated by subsequent agreement, as was the contract in Pierson v. Herrington, 138 Ga. App. 463 (226 SE2d 299) (1976). But also as in Pierson, we cannot say, as a matter of law, that this termination served as an accord and satisfaction of all claims and obligations arising under the prior agreement.

“Accord and satisfaction occurs where the parties to an agreement, by a subsequent agreement, have satisfied the former agreement, and the latter agreement has been executed. Like any other contract, accord and satisfaction requires a meeting of the minds as to the subject matter embraced therein, if it is to be valid and binding. Where there is no agreement to settle all matters in dispute, no accord and satisfaction result. Furthermore, as a general rule, whether there is accord and satisfaction is a question for the jury.” (Citations and punctuation omitted.) Derosa v. Shiah, 205 Ga. App. 106, 108 (1) (421 SE2d 718) (1992). See also Popovich, supra at 396; Wallace v. Harrison, 166 Ga. App. 461, 464-466 (2) (304 SE2d 487) (1983).

Although the warehousing agreement may have been terminated by the subsequent agreement, the termination agreement does not contain language showing an “agreement to settle all matters in dispute.” (Citations and punctuation omitted.) Derosa, supra at 108. Nor does it purport to settle “all claims arising from prior alleged breaches of the [warehousing] contract.” Pierson, supra at 465. See also Derosa, supra at 108-109 (separation notice given to employee said nothing about satisfaction of any other claims).

Additionally, a jury question exists as to whether the parties intended that the termination agreement constituted an accord and satisfaction extinguishing all obligations under the warehousing agreement. The contracts themselves do not show the parties’ mutual intent that execution of the termination agreement would satisfy all obligations that arose under the warehousing agreement. Although the record contains the letter, discussed above, from CEFG’s counsel to Nebraska Plastics stating his understanding that the termination agreement superseded the warehousing agreement, the record does not show that the termination agreement was signed by Nebraska Plastics. Furthermore, the record also contains the affidavit of the president of Nebraska Plastics, who stated that it was never his “understanding or intention that the termination agreement being discussed would serve to replace the previously-executed warehousing agreement.” Questions of fact clearly exist concerning the parties’ intent concerning the scope of the termination agreement, and the trial court therefore erred in granting summary judgment to CEFG.

Decided February 17, 1999.

William M. Calhoun, Jr., for appellant.

Davis & Forehand, John'N. Davis, David A. Forehand, Jr., for appellees.

Judgment reversed.

Johnson, C. J., and Barnes, J., concur.

       Upon the completion of the inventory, CEFG was required to pay to Nebraska Plastics for all consigned inventory not accounted for in the inventory, less any amounts owed to CEFG. Furthermore, the agreement provided that if the amount owed to CEFG exceeded the amount owed to Nebraska Plastics, Nebraska Plastics was to pay this excess to CEFG.

       We note that other correspondence in the record shows that this facsimile, sent on April 15, 1997, did not include a copy of the contract but that a copy of the contract was faxed to Nebraska Plastics the next day. This creates a question of fact as to whether CEFG’s acceptance of the termination agreement was provided to Nebraska Plastics, as required by Nebraska Plastics, on April 15.

       With regard to this affidavit, we note that “parol evidence is admissible to show the scope of the agreement that forms the basis of the alleged accord and satisfaction. [Cit.]” Wallace, supra at 464.


text:
    A98A2309.
    WILLIAMS v. THE STATE.
    (512 SE2d 387)
   Smith, Judge.

After a nightclub incident in which he shot two people, Steven M. Williams was convicted by a Muscogee County jury on two counts of aggravated assault. He appeals, asserting as his sole enumeration of error the trial court’s failure to give a curative instruction or grant a mistrial when his character was improperly placed in issue by a reference to a prior unrelated arrest. We affirm.

The statement complained of by Williams occurred as a City of Columbus detective was testifying regarding the circumstances of Williams’s arrest. Williams fled the nightclub before the police arrived, and a warrant was issued for his arrest. The detective testified that Williams was arrested some time later and added, “He was arrested in Atlanta. He was arrested in Atlanta and what had happened is I had gotten a call. I had an outstanding warrant for his arrest.”

We note that the detective’s testimony does not necessarily imply, as Williams contends, that Williams was arrested in Atlanta for some other offense. In fact, the prosecutor went on, “So anyway for one reason or another the warrant that was issued for him was executed in Atlanta and he was arrested in Atlanta.” The jury could as easily have inferred that no crime was involved other than the one for which Williams was on trial and for which the officer held an outstanding warrant. It is also “well settled that all circumstances connected with the accused’s arrest are admissible, even though they incidentally put his character in issue. [Cits.]” Reynolds v. State, 234 Ga. App. 884, 886-887 (2) (508 SE2d 674) (1998).

But we do not reach these issues because Williams clearly failed to preserve the alleged error for review. After Williams’s counsel objected, the prosecutor responded, “Okay. Let’s not go into what was involved in Atlanta. . . . He was going to go into something and we decided not to.” Williams’s counsel responded, “I withdraw my objection.” He never requested curative instructions and never moved for a mistrial.

Decided February 17, 1999.

John R. Mobley II, for appellant.

J. Gray Conger, District Attorney, Samuel G. Merritt, Assistant District Attorney, for appellee.

The cases cited by Williams are inapplicable here. In Richardson v. State, 199 Ga. App. 10 (403 SE2d 877) (1991), and Felton v. State, 93 Ga. App. 48 (90 SE2d 607) (1955), the appellants expressly moved for a mistrial, as Williams failed to do, and the references to previous crimes and arrests were clear and explicit. In contrast, by withdrawing his objection, Williams failed to preserve the claimed error for appeal. Reed v. State, 222 Ga. App. 376, 379 (3) (474 SE2d 264) (1996). An assertion that the trial court erred in failing to give a curative instruction is not preserved for review when no curative instruction was requested at trial. Beasley v. State, 269 Ga. 620, 624 (9) (502 SE2d 235) (1998). Finally, “[a] motion for mistrial not made at the time the testimony objected to is given is not timely and will be considered as waived because of the delay in making it.” (Citations and punctuation omitted.) Anderson v. State, 199 Ga. App. 559, 560 (2) (405 SE2d 558) (1991).

Judgment affirmed.

Johnson, C. J., and Barnes, J., concur.


text:
    A99A0105.
    In the Interest of M. L. P. et al., children.
    (512 SE2d 652)
   Eldridge, Judge.

Appellant Cheryl Penamon appeals the trial court’s August 1998 order terminating her parental rights to M. L. P. and M. D. P. We affirm.

“The standard of review of a juvenile court’s decision to terminate parental rights is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” (Citations and punctuation omitted.) In the Interest of E. C., 225 Ga. App. 12, 13 (482 SE2d 522) (1997). See also Blackburn v. Blackburn, 249 Ga. 689, 694 (292 SE2d 821) (1982); In the Interest of T. B. R., 224 Ga. App. 470, 472 (480 SE2d 901) (1997). The appellate court should defer to the lower court as the trier of fact unless the clear and convincing standard is not met. Id.; In the Interest of B. P., 207 Ga. App. 242, 244 (427 SE2d 593) (1993).

Viewed in this light, the evidence showed that M. L. P. was born in January 1991 and her half-sister, M. D. P., was born in March 1992. The children have been in the custody of the Georgia Department of Family & Children Services (“DFCS”) since 1993. At that time, DFCS determined that the children were deprived because the appellant left the children alone in an apartment for long periods of time and because the appellant failed to get the children immunized. The finding of deprivation was not challenged by the appellant.

Since August 1993, a Citizens Review Panel repeatedly has reviewed appellant’s file and made recommendations in the form of reunification plans. These plans consistently required the appellant to do three things: (1) pursue counseling to assist her in becoming a “responsible adult and adequate caretaker for her children”; (2) visit the children on a regular basis; and (3) stabilize and maintain her employment, home, and financial matters. These plans became orders of the court. See OCGA § 15-11-41 (b)-(e). The appellant participated in most of the panel discussions and repeatedly promised to comply with the court’s requirements for reunification.

In August 1996, the Citizens Review Panel recommended that the appellant’s parental rights be terminated. The State filed a petition on October 3, 1996. The trial court held a hearing on December 18,1996; after hearing some evidence, the trial court issued a continuance until January 7, 1997. Subsequent hearings were held on January 7, January 15, February 14, and April 2, 1997.

During the February hearing, the trial court noted that the Citizens Review Panel was scheduled to meet on February 27, 1997, to review the appellant’s case. The trial court noted that the appellant might be able to “convince the panel that there’s light at the end of the tunnel.” The appellant’s counsel remarked to the court that the appellant would like another opportunity to discuss the case with the panel. However, after meeting with the appellant, the panel again recommended termination of her parental rights. The State tendered the panel’s review and recommendation into evidence during the April hearing, and it was admitted without objection. However, the appellant objected to the admission of attachments to the record, such as a visitation schedule, asserting that they were hearsay, unauthenticated, and cumulative. The trial court overruled the objection, finding that the documents at issue were prepared for the panel, which discussed them with the appellant during the February review, and were “part and parcel” with the panel’s report.

The trial court issued a termination order on April 9, 1997. The appellant appealed the order, and this Court reversed. See In the Interest of M. L. R, 231 Ga. App. 223 (498 SE2d 786) (1998). After finding that the trial court erroneously relied on hearsay, i.e., the Citizens Review Panel’s findings of fact, in reaching its factual conclusions about the case, this Court remanded the case for issuance of a new order based on “competent” evidence in the record. Id. at 225.

Following such remand, the trial court scheduled a hearing on June 3, 1998, to review the case in light of this Court’s remittitur. The appellant failed to appear at this hearing. The trial court then issued an order on August 5, 1998, stating that it had “carefully reviewed the evidence of record in light of the Court of Appeals’ ruling.” The order enumerated specific factual findings and conclusions of law in compliance with OCGA § 15-11-81 and, again, terminated the appellant’s parental rights. She appeals from this order. Held:

1. In three enumerations of error, the appellant challenges the sufficiency of the evidence, asserting that the evidence failed to demonstrate the appellant’s present parental misconduct or inability that would justify termination. We disagree.

“In considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability.... If there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” OCGA § 15-11-81 (a).

(a) The first factor in the determination of parental misconduct or inability is consideration of whether the children are deprived. OCGA § 15-11-81 (b) (4) (A) (i); see also OCGA § 15-11-2 (8) (A). In this case, the children were determined to be deprived in August 1993 and were removed from the appellant’s care. The appellant did not challenge such determination, and therefore, she is bound by that finding. In the Interest of E. C., supra at 15; In the Interest of T B. R., supra at 473 (1) (a); In the Interest of B. R, supra at 244.

(b) In addressing the second factor, the trial court must consider whether there has been a lack of proper parental care or control which caused the deprivation. OCGA § 15-11-81 (b) (4) (A) (ii). Such lack of proper care may be established by showing, inter alia, “past physical, mental, or emotional neglect of the child or of another child by the parent.” OCGA § 15-11-81 (b) (4) (B) (v).

In this case, the children’s half-brother, C. R, was removed from the appellant’s custody in 1993 after he was discovered, at three months of age, sitting alone in the appellant’s apartment. C. P. initially was placed in his father’s home, and the Citizens Review Panel established a reunification plan with the appellant. The appellant has not regained custody of C. R, whose present status is unclear from the record. This evidence supports the trial court’s determination that the children at issue in this case are deprived as a result of the appellant’s lack of parental care or control.

Further, “where the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To communicate or to make a bona fide attempt to communicate with the child . . . ; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.” (Emphasis supplied.) OCGA § 15-11-81 (b) (4) (C).

In this case, the appellant lost custody of the children in 1993. The trial court heard evidence from two DFCS employees who had supervised the appellant’s case during 1996 and from a counselor who had worked with the appellant since 1994. These witnesses had personal knowledge of the requirements of the court-ordered reunification plans and the appellant’s failure to comply with such plan. Further, the State tendered the reunification plans, covering the period from August 1993 through August 1996, into evidence without objection.

Julie Mahaffey, the DFCS caseworker who worked with the appellant from January through December 1996, testified that, during this period, the appellant moved four times; she did not complete counseling; and her visitation with the children was “sporadic.” Mahaffey testified that, in order to assist the appellant in overcoming transportation problems that allegedly were interfering with visitation, DFCS assigned a “parent aid” to the appellant. However, the appellant still missed some scheduled visits. Mahaffey also stated that the appellant did not cooperate with the children’s daycare center rules and, as a result, could no longer visit the children there.

The counselor assigned to the appellant since 1993 testified that the appellant did not attend counseling sessions regularly during 1996; the counselor noted that appellant attended four of eleven scheduled sessions between August 1996 and February 1997.

In response, the appellant asserted during the January 7, 1997 hearing that she had “changed” and recently had begun to address some of the requirements of the court-ordered case plans. According to the appellant’s testimony, she moved to an apartment in Griffin, Georgia, in August 1996, and she found both a full-time and part-time job. She testified that she was engaged to be married, and “I’m no longer getting into things that I used to get into. I no longer drink. I no longer club. I go to work. I see about my child that I have at home with me. He’s in daycare and the daycare can speak for themselves about how well I tend to him.”

However, appellant also admitted that she had failed to pay any child support for M. L. P. and M. D. P. since 1995, even though she had been ordered by the court to pay $25 per week. Although she claimed to have provided Christmas and birthday gifts for the children; she did not do so until after the termination petition had been filed. The appellant also admitted that her fiancé was a convicted felon, having been convicted of selling cocaine; he is on probation until 2004. In addition, she admitted that her current Griffin neighborhood was “pretty rough” and that she intended to move after getting married.

Further, during the April hearing, the appellant testified that she had been fired from her full-time job and was presently unable to work because she injured her back in January 1997; the status of her part-time job was unclear. She stated that, “Some days I don’t even get out of bed. [The neighbors] come and get my son. That’s how bad my back be hurting me.” When questioned about missed visitation appointments with her children between December 1996 and February 1997, the appellant admitted that she failed to appear for a few visitations; she explained that she relied on a Medicaid van to transport her to visitation with her daughters and that the van was sometimes unavailable.

Such evidence supports the trial court’s finding that “[t]he [appellant] does not have the financial means to support the children and has, despite Court orders requiring her to do so, failed to pay child support sufficient to provide for even the bare necessities of the children.” See OCGA § 15-11-81 (b) (4) (C) (ii). Further, the evidence shows that the appellant consistently failed to comply with the court-ordered reunification plans, i.e., maintain stable employment or adequate housing, to visit the children regularly, or to attend counseling consistently. The trial court properly concluded that such failure established grounds for termination under OCGA § 15-11-81 (b) (4) (C) (iii). See also OCGA § 15-11-81 (b) (4) (A) (ii).

(c) Once the first two factors are satisfied, the trial court must then decide if the cause of the deprivation is likely to continue and, if so, if the continued deprivation “will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-81 (b) (4) (A) (in), (iv).

“In addition to evidence of present parental misconduct or inability, evidence of past conduct may be considered in determining whether the deprivation would be likely to continue. . . . Appellant asserts that her past history is irrelevant to her present fitness as a parent. We strongly disagree. Her history of child [neglect] is clearly relevant when appellant, aware of her past failings, continues to ignore her responsibility to financially support her children. This is clearly present conduct from which a factfinder can infer that appellant, in spite of a recent, albeit questionable, change of heart, is not prepared to support her children in the future.” (Citations and punctuation omitted.) In the Interest of T. B. R., supra at 474-475 (1) (c). “The 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 R. N., 224 Ga. App. 202, 205 (2) (480 SE2d 243) (1997).

Although the appellant contends that she has recently attempted to comply with the reunification plan, pointing to evidence that she attended a few counseling sessions in Griffin and maintained a home in Griffin for six months, such efforts fall “very short of negating years of . . . harmful neglect” by the appellant. In the Interest of T. B. R., supra at 475 (1) (c). “While the mother’s efforts to improve herself . . . are good[,] the trial court must determine whether a parent’s conduct warrants hope of rehabilitation, not an appellate court.” (Citation and punctuation omitted.) Id.; In the Interest of M. N. L., 221 Ga. App. 123, 124 (470 SE2d 753) (1996).

In making such determination, the trial court could not have been more clear. In its August 1998 order, the trial court made the following finding: “In evaluating the [appellant’s] demeanor and testimony at trial, coupled with her repeated failures to satisfactorily comply with the above-referenced court-ordered reunification orders, the Court is convinced that she continues to lack the requisite level of maturity and commitment needed to be a mother and caretaker to these children. She offers absolutely no regret or apology for her failures’ having resulted in her 2 children’s being in foster care for over 4 years. . . . The mother’s claims of having‘changed’and of now being prepared to resume motherly responsibilities for these 2 children are not credible. The Court views these contentions as nothing more than promises to change for the better if she should secure return of her children. Throughout this Court’s involvement with this mother and her children over several years, the mother has repeatedly promised such improvement by participating in and consenting to the implementation of several reunification plans with which she utterly failed to comply.” Further, the trial court concluded that “the [appellant] is presently unfit and unable to resume her custodial responsibilities for these children in a manner consistent with and in furtherance of the health and well-being of these children.”

The evidence presented supports a finding by the trial court that it is very likely that the deprivation of these children will continue and that the children will be harmed thereby.

(d) Once the determination has been made that the lack of parental control has caused the child to be deprived, the trial court must consider “whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” OCGA § 15-11-81 (a).

In making such determination, “those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest. Thus, a finding as to whether the termination of parental rights is in the best interest of the child represents, in essence, a finding as to whether the specifics of the parental default that have otherwise been found to exist are of such magnitude as to warrant the conclusion that the child . . . would be better served by the grant of the petition to terminate.” (Citations and punctuation omitted; emphasis in original.) In the Interest of B. P., supra at 245. See also In the Interest of R. N., supra at 205 (2).

“The termination of parental rights is a severe measure. However, a termination hearing seeks above all else the welfare of the child. In determining how the interest of the child is best served, the juvenile court is vested with a broad discretion which will not be controlled in the absence of manifest abuse.” (Citations and punctuation omitted.) In the Interest of A. A. G., 146 Ga. App. 534, 535 (2) (246 SE2d 739) (1978). See also Powell v. Dept. of Human Resources, 147 Ga. App. 251 (248 SE2d 533) (1978).

After reviewing the trial court’s order and the entire record, including transcripts of the 1996-1997 hearings, this Court finds that the trial court did not abuse its discretion in terminating the appellant’s parental rights.

2. Although the appellant challenged on appeal the trial court’s alleged reliance upon the factual findings of the Citizens Review Panel, such assertion was waived for failure to object to the evidence at trial.

Further, under OCGA § 15-11-33 (d), “all information helpful in determining [whether the children are deprived], including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition.” Accordingly, there was no error in the trial court’s consideration of the panel reports in reaching his decision regarding the State’s termination petition.

However, even if portions of the panel’s reports were inadmissible as hearsay which did not qualify under the business records exception, “the Georgia Supreme Court has held that a trial court’s consideration of hearsay contained in such [reports] will not constitute reversible error where the evidence introduced at the hearing, not considering the report [s], was sufficient to support the findings and conclusions of the juvenile court judge.” (Citation and punctuation omitted.) In the Interest of J. T. S., 185 Ga. App. 772, 774 (365 SE2d 550) (1988). “When a trial judge considers both admissible and inadmissible evidence, it is presumed that he separates the wheat from the chaff; and his judgment will not be reversed where there is legal evidence to support it. [Cit.]” In the Interest of M. A. C., 244 Ga. 645, 655 (4) (261 SE2d 590) (1979). “There was ample evidence in the present case to support the juvenile court judge’s finding of continued deprivation even without reliance on the hearsay records. It follows that the admission of the reports in question does not require reversal of the judge’s decision.” In the Interest of J. T. S., supra at 774.

3. The appellant also challenges the trial court’s “reliance” upon the recommendations of the children’s guardian ad litem, contending that the guardian ad litem never filed a written report with the court. However, the guardian ad litem filed a response to the State’s termination petition, which response recommended termination of the appellant’s parental rights, and the guardian ad litem reiterated such recommendation during the April 1997 hearing. In its comprehensive twelve-page order, the trial court made a single, one-paragraph reference to the guardian ad litem’s recommendation. For the same reasons as discussed in Division 2, supra, the trial court’s consideration of such recommendation, if error, was harmless.

4. The appellant’s assertion that the trial court’s August 5, 1998 order is unsupported by the evidence because it is based upon evidence that was 16 months old is without merit. The trial court originally heard evidence in this case between December 1996 and April 1997 and issued an order terminating the appellant’s parental rights on April 11, 1997. That order was appealed by the appellant and was reversed by this Court. This Court’s opinion remanded the case back to the trial court with instructions for “issuance of an order based on competent evidence given at the hearing and in compliance with OCGA § 15-11-81.” (Emphasis supplied.) In the Interest of M. L. R, supra at 225. The order did not require the trial court to conduct additional hearings, but simply directed the trial court to reconsider the competent evidence already presented before issuing an order in this case. The issue before the trial court in August 1998 had not changed from that decided in the April 1997 order, i.e., whether there was sufficient evidence presented during the hearings to terminate the appellant’s parental rights. The trial court correctly determined that there was sufficient clear and convincing evidence to support the termination. There was no error.

Decided February 17, 1999.

Ham, Jenkins, Wilson & Wangerin, Kevin A. Wangerin, 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, W. Ashley Hawkins, for appellee.

Judgment affirmed.

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

       The father of M. L. P. is deceased. The father of M. D. P. is unknown; his parental rights were also terminated following his notice of the proceedings by publication.

       The appellant’s youngest son, the half-brother to the children at issue in this case, continues to live with her.

       This Court notes that, following the remittitur of this case to the trial court, the trial court did, in fact, set a date for a hearing in which to review the evidence in light of this Court’s decision. However, the appellant failed to appear for the hearing, and the trial court based its determination solely on the evidence in the record as established prior to the original 1997 appeal.


text:
    A99A0145.
    THE STATE v. GLENN.
    (512 SE2d 660)
   Eldridge, Judge.

A Mitchell County trial court granted Antonio Glenn’s motion to compel the State to reveal the identity of its confidential informant (“CI”). The trial court did so solely on the basis that the CI “was paid compensation by the law enforcement agents for the furnishing of information” and, hence, was “an agent of law enforcement.” The trial court certified such ruling for immediate review. See, e.g., Bolt v. State, 230 Ga. App. 760 (497 SE2d 406) (1998). We granted interlocutory appeal in order to address the issue of whether compensation given to a Cl waives the State’s ability to claim the informer’s privilege and, thus, compels disclosure of the informant’s identity. We answer this question in the negative and reverse.

Investigator R. Williams of the Southwest Georgia Drug Task Force received an anonymous call, informing him that a light-blue Mercury Cougar was about to leave 141 East Cochran Street in Camilla, Georgia, with a large quantity of crack cocaine in a yellow bag. Williams did not know the identity of the caller, but he passed the information along to the Commander of the Drug Task Force, J. Autrey. Autrey was familiar with the location, which was a known drug house where the Task Force had recovered drugs, as well as made undercover buys.

Autrey proceeded to 141 East Cochran and began to patrol the area. A light-blue Mercury Cougar with out-of-county tags was spotted in North Camilla. Autrey followed the Cougar. When the Cougar parked by the curb next to a public housing project, Autrey parked his vehicle against the curb several feet in front of it. Autrey and an accompanying agent, Officer Bowie, exited their car and walked toward the Cougar. The Cougar began to back up in the parking spot. The officers waved their arms, called out to the driver, and asked to speak with him. The driver, appellant Antonio Glenn, rolled down his window. The Cougar also contained both a front seat passenger, Daniel Smith, and a back séat passenger, Ulysses Robinson.

Thereafter, events not at issue in this appeal led to the search of the Mercury Cougar. A plastic bag of marijuana and a $20 rock of crack cocaine were recovered from the rear floorboard near Robinson. Underneath the back seat, the officers recovered a fully loaded Glock .45 semiautomatic pistol. Also, “laying next to the electrical pole that was right beside the front passenger door of the vehicle, just a matter of three or four feet from the passenger door of the vehicle,” a yellow bag was recovered, which contained approximately twelve “cookies” of crack cocaine weighing in excess of four hundred grams. Antonio Glenn was arrested, as were passengers Smith and Robinson. All were charged with offenses based solely upon the narcotics and the weapon found in and around the Mercury Cougar.

At the Drug Task Force office, Glenn was given rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), signed a waiver of rights form, and gave a statement to the police. Glenn stated that the yellow bag belonged to Daniel Smith; that he had seen Smith in possession of the bag; that earlier he, Glenn, had driven the light-blue Mercury Cougar to 141 East Cochran Street, where Smith had exited the vehicle and met with someone in the back yard of the residence; that he did not know how the yellow bag ended up beside the light pole; and that he, Glenn, did not remove it from the Cougar.

The identity of the anonymous caller was learned at a later date by another agent. The caller was a Cl who previously had been used by this other agent. The Cl “had called up there to talk to one of my other investigators who was not present and simply went ahead and passed the information on to Investigator Williams without relating his name.” When the other agent learned that the anonymous caller was his Cl, the informer was paid $100 for the information regarding the light-blue Mercury Cougar which led to the arrest of Glenn, Smith, and Robinson.

Glenn filed a motion to compel the State to reveal the name of the Cl. A hearing was held on the motion, and Commander Autrey was asked the name of the Cl. Autrey invoked the informer’s privilege. The trial court expressed concern that the informer was paid money for the information, thereby rendering him an “agent for the State”: “They’re basically selling you information is what it amounts to.” However, Investigator Autrey’s testimony established that the monetary payment is solely to encourage informers to give information; that “upstanding citizens” are generally not involved in the drug trade so as to provide information; that very few CIs would inform if they were not compensated; and that investigators “glean our information from the people that are either involved [in criminal activity] or at least close enough to know what is going on and very few of these people will actually do it out of the goodness of their heart.”

Notwithstanding, the trial court determined that the informer’s privilege was not meant to protect the identity of those who sell information, but was meant to protect “upright citizens”: “[T]hat distinction is why you have a policy of the State of Georgia to preserve the confidentiality of confidential informants being citizens, upright citizens in the community who don’t want to get involved as opposed to people who are willing to sell, to market the information they have for a price.” The trial court specifically found that the money paid to the Cl rendered him an employee of law enforcement and that the informer’s privilege “does not contemplate preserving the anonymity of people who work for law enforcement on some type of compensation basis.” Accordingly, the trial court granted the motion and ordered the State to reveal the identity of the CL Held:

1. The informer’s privilege is grounded in OCGA § 24-9-27 (d), which states that “[n]o official persons shall be called on to disclose any state matters of which the policy of the state and the interest of the community require concealment.” See Thornton v. State, 238 Ga. 160, 163 (231 SE2d 729) (1977). “The public policy underlying this privilege is to protect and encourage the flow of information to law enforcement officials.” Id. And “[t]he purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement.” (Citation and punctuation omitted.) State v. Mason, 181 Ga. App. 806, 809 (3) (353 SE2d 915) (1987). This policy recognizes the need for informants in the enforcement of the criminal laws and the further consideration that revelation of the identity of an informer destroys his usefulness for any other cases. Stanford v. State, 134 Ga. App. 61 (213 SE2d 519) (1975). Accordingly, “[p]ublic policy in Georgia favors nondisclosure of the identity of an informant in the interest of the free flow of information about criminal activity.” (Citations and punctuation omitted.) Roden v. State, 181 Ga. App. 287, 290 (351 SE2d 713) (1986). To that end, “[w]hat is usually referred to as the informer’s privilege is in reality the Government’s privilege.” Roviaro v. United States, 353 U. S. 53, 59-60 (77 SC 623, 1 LE2d 639) (1957). The privilege to withhold the identity of a confidential informant is held by the State and cannot be waived by the informant. Id.; State v. Mason, supra.

Thus, whether an informant provides information for altruistic reasons or for lucre is irrelevant for purposes of the State’s ability to invoke the informer’s privilege. Clearly, it is not the paid status of the informer that counts, but the State’s determination that the above public policy rationale is best served by non-disclosure. Such is the State’s decision. And such serves to explain why, in the over forty years since disclosure of an informant has been required under certain circumstances, the fact that almost all informants are paid, either with money or mercy, has never been a relevant factor either for purposes of invoking the informer’s privilege or for purposes of determining whether disclosure is required thereunder. See Roviaro v. United States, supra at 56, n. 3 (informer was a “special employee” of federal agents).

Further, without hesitation, we reject the trial court’s notion that the informer’s privilege was meant to protect only “upright citizens.” Such notion displays a misunderstanding of how criminal law enforcement works. Needless to say, if law enforcement were forced to rely for criminal information only upon those whom society-at-large might deem “upright,” not only would the information pipeline dry up, but every informant would be subject to the argument that, by virtue of his knowledge of criminal information, he was not sufficiently “upright” to warrant the privilege.

2. However, the informer’s privilege is not absolute. “[Fundamental fairness require [s] that the public interest in protecting the flow of information to law enforcement officials be balanced against the right of the accused to a full and fair opportunity to defend himself.” (Citations omitted.) Thornton v. State, supra at 164.

The established procedure is a two-step process which requires that, “[(1)] in order to invoke a judicial determination in camera, the defendant must make an initial proffer of the materiality and necessity of the informant’s testimony. . . . Vague references to the purpose of the expected testimony are an insufficient basis to invoke an in camera hearing of an informant’s proposed testimony for the purpose of determination whether to allow the witness to be called. Obscure allegations of impropriety, complicity or falsification are insufficient, as is conjecture [;] . . . [and (2)] Only when the defendant prima facie shows a necessity for the informant’s disclosure or exposure to the fair determination of the cause, should the court proceed in camera to determine whether the informant’s testimony is, in fact, necessary. There is no fixed rule governing these cases, but the court must weigh the particular circumstances of each case, including the extent of the informant’s participation in the criminal activity, the directness of the relationship between the defendant’s asserted defense and the probable testimony of the informant, and the government’s interest in nondisclosure.” (Citations and punctuation omitted; emphasis supplied and omitted.) State v. Mason, supra at 812-813; see also Leonard v. State, 228 Ga. App. 792, 794 (2) (492 SE2d 747) (1997) (“movant must establish the relevance, materiality, and necessity of the identity of the informant as a predicate for disclosure.”).

Here, during the hearing on the motion to compel disclosure of the CI, counsel for Glenn stated that the CI should be disclosed because his alleged earlier presence at 141 East Cochran made him a “participant.” “He [the CI] at some point had to have been there [141 East Cochran] to know that this car was leaving that house with a large quantity of cocaine in it.” However, Glenn has been indicted for possession of narcotics and a weapon only with regard to the drugs and pistol found in and around the Mercury Cougar at the time it was parked in front of the public housing project. Thus, the CI’s alleged earlier presence at 141 East Cochran is irrelevant to the indicted offenses. It is undisputed that the CI was not in the Mercury Cougar, was not present during the search and arrest, and was neither a “participant” nor a witness with regard to the specific offenses with which Glenn has been charged. Thus, as a matter of law, Glenn failed to make a step-one prima facie showing of materiality and necessity so as to justify a step-two in camera judicial determination that the testimony of the CI was required at trial. “OCGA §§ 24-9-21 (4) and 24-9-27 (d) provide for privilege against disclosure of the identity of a confidential informant who was not an eyewitness to the offense that forms the basis for the prosecution, although he or she may have seen the defendant in possession of the contraband at an earlier time, but did not participate in the offense. The informant, for evidentiary purposes, is considered a mere ‘tipster.’” Leonard v. State, supra at 794 (2).

Decided February 17, 1999

J. Brown Moseley, District Attorney, Victoria Spear-Darrisaw, Assistant District Attorney, for appellant.

Ronnie J. Lane, for appellee.

Judgment reversed. Case remanded for further proceedings not inconsistent with the instant opinion.

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

       Although not currently at issue, we note that “[a]pproaching a vehicle that has already stopped through no action of the officer is not a stop or seizure, but is a communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment.” (Citation and punctuation omitted.) Buchnowski v. State, 233 Ga. App. 766, 767 (505 SE2d 263) (1998).

       Autrey stated, “I respectfully decline to answer on the grounds that this caller/source has requested that his name remain anonymous based upon the fact that he fears bodily harm through revenge, ostracism in the community and also the fact that, if we reveal this source’s name, it’s going to scare any other potential caller that may call in and give information because they will be afraid that their name will be used and this will severely, severely limit our abilities to enforce the drug laws in the county.”

       An informer’s status as a paid “agent of the State” may be relevant insofar as it makes applicable the defense of entrapment or an inquiry into a possible Miranda violation. See, e.g., Gilbert v. State, 212 Ga. App. 308 (441 SE2d 785) (1994); Chalker v. State, 184 Ga. App. 596 (362 SE2d 152) (1987); State v. Rogers, 173 Ga. App. 653 (327 SE2d 782) (1985); Henderson v. State, 162 Ga. App. 320 (292 SE2d 77) (1982); Leonardi v. State, 154 Ga. App. 402 (268 SE2d 380) (1980).

       See also, e.g., Brown v. State, 223 Ga. App. 364 (477 SE2d 623) (1996) (Columbus Police Department used paid informer); Beck v. State, 216 Ga. App. 532 (455 SE2d 110) (1995) (Dalton Police Department used paid informer); Pierce v. State, 180 Ga. App. 847 (350 SE2d 781) (1986) (Georgia Bureau of Investigation used paid informer); see also Campbell a State, 207 Ga. App. 366, 367 (428 SE2d 111) (1993) (use of paid informer to provide probable cause does not lead to identification of such, absent balancing competing interests of parties).


author: Blackburn, Judge.

text:
    A99A0157.
    KEOWN v. THE STATE.
    (512 SE2d 391)
   Blackburn, Judge.

Wesley Hugh Keown appeals his convictions, following a jury trial, of two counts of battery and one count of simple battery. Keown raises three enumerations of error, all concerning the sufficiency of the evidence to support his convictions. However, Keown has failed to include a copy of the trial transcript, a stipulation of the record or an order of findings of fact entered by the trial judge with the record on appeal. See OCGA § 5-6-41 (g). Therefore, we are unable to review Keown’s assertions of error. See Sherman v. State, 142 Ga. App. 691, 692 (237 SE2d 5) (1977) (“enumerations of error going to the sufficiency of the evidence . . . cannot be considered due to the lack of a transcript or other record of these proceedings”).

Judgment affirmed.

Beasley, P. J., and Senior Appellate Judge Harold R. Banke concur.

Decided February 17, 1999.

Jane K. Mitchell, for appellant.

Leslie C. Abernathy, Solicitor, for appellee.