text:
    A98A0704.
    GIBSON v. CASTO et al.
    (504 SE2d 705)
   Judge Harold R. Banke.

Robert Gibson, in his capacity as executor of the estate of his mother, Mary Y. Gibson, sued Mary Gibson’s insurer, Preferred Risk Mutual Insurance Company (“Preferred Risk”) and Philip Casto, an attorney Preferred Risk retained to represent Mary Gibson. Robert Gibson appeals the trial court’s order granting summary judgment to Casto and Preferred Risk, enumerating three errors.

This case arose in the wake of a March 4, 1990 collision between vehicles driven by Mary Gibson and Rhonda Holder. Mary Gibson sustained serious injuries in the wreck. Although Preferred Risk settled the claims of Mary Gibson’s passengers and Holder’s children, Holder and her husband filed a civil action against Gibson on the day before the statute of limitation expired, March 3, 1992. Robert Gibson forwarded the complaint to Preferred Risk. In an attempt to settle the Holders’ claim, Preferred Risk obtained an extension of time to answer the complaint through May 8, 1992. In late April 1992, when settlement appeared unattainable, Preferred Risk hired Casto to represent Mary Gibson.

After Casto answered the complaint on May 7, 1992, Gibson asked whether a counterclaim could be filed. Casto replied that it was too late to file a counterclaim with the answer.

On May 3, 1996, Gibson commenced this action, alleging that Casto’s failure to file a counterclaim constituted malpractice. Gibson also alleged that Casto was Preferred Risk’s agent under a respondeat superior theory. The trial court granted summary judgment to both defendants, reasoning that Gibson presented no evidence of an agency relationship and the statute of limitation on the counterclaim had expired before Casto was retained. It also determined that the statute of limitation on Gibson’s claim against Casto ran before this action was filed. Held:

1. Gibson maintains the trial court erred in finding that the time for filing a counterclaim was not extended to the date the answer was due. We disagree.

This enumeration turns on OCGA § 9-3-97. That statute extends the statute of limitation for counterclaims “so as to allow parties, up to and including the last day upon which the answer or the defensive pleadings should have been filed . . . provided that the final date allowed by such limitations for the commencement of such actions shall not have expired prior to the filing of the main action.”

Here, the statute of limitation on Mary Gibson’s nascent counterclaim began to run on March 4, 1990. The Holders filed their complaint within the limitations period, on March 3, 1992, and served Mary Gibson on March 5, 1992. Applying OCGA § 9-3-97, the counterclaim was due thirty (30) days after service. OCGA § 9-11-12 (a). Because April 4 was a Saturday, the counterclaim could have been timely filed through April 6. OCGA § 1-3-1 (d) (3); see Equitable Bank v. Brown, 177 Ga. App. 776, 777 (341 SE2d 300) (1986). The March 12 stipulated extension of time gave Gibson until May 8 to file an answer, notwithstanding the fact that the answer “should have been filed” April 6. OCGA § 9-3-97. But the stipulated extension of time did not extend the statute of limitation on the counterclaim. Wilson v. City of Waycross, 130 Ga. App. 253 (203 SE2d 301) (1973) (the rule permitting stipulated extensions of time does not apply to periods of time which are definitely fixed by other statutes); see Champion v. Wells, 139 Ga. App. 759, 762 (229 SE2d 479) (1976).

2. Gibson argues that the trial court erred in finding that the statute of limitation barred the malpractice claim against Casto. The trial court applied a four-year statute of limitation but found that because the cause of action arose on April 6, when the statute of limitation on the counterclaim expired, the complaint was filed 28 days too late.

We believe the application of a four-year statute of limitation to these facts was not improper. “It has long been the law in this state that a cause of action for legal malpractice, alleging negligence or unskillfulness, sounds in contract (agency). [Cits.]” Plumlee v. Davis, 221 Ga. App. 848, 851 (2) (473 SE2d 510) (1996). In light of the lawyer-client relationship that undisputedly existed between Casto and Mrs. Gibson, we cannot say that an implied contract did not exist. See id. at 852.

Decided June 17,1998

Reconsideration denied July 14,1998

Wilson, Strickland & Benson, Warner R. Wilson, Jr., Sara L. Doyle, for appellant.

A cause of action accrues when the plaintiff could first have maintained the action against the defendant to a successful result. Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 805 (1) (273 SE2d 16) (1980). Notwithstanding Casto’s argument to the contrary, the cause of action did not arise on April 6. Gibson could not have maintained a successful action against Casto at that time because Casto had not yet been retained. And by the time he was retained, the statute of limitation on the counterclaim had run.

The Civil Practice Act provides an avenue for filing untimely counterclaims in such situations, however. Litigants may seek leave to set up the counterclaim by amendment. OCGA § 9-11-13 (f); Shaw v. Ruiz, 207 Ga. App. 299, 305 (15) (428 SE2d 98) (1993). It is undisputed that Casto never moved to add the untimely counterclaim to the answer or amend the answer to add the counterclaim. The expert affidavit attached as Exhibit C to Gibson’s complaint specifically criticizes this failure. Boynton v. State Farm &c. Ins. Co., 207 Ga. App. 756, 758 (3) (429 SE2d 304) (1993) (exhibits attached to complaints are part of the pleadings). Thus, Gibson’s cause of action arose on or after May 7, when the answer was filed without seeking leave to add the omitted counterclaim. While we offer no opinion on the merits of Gibson’s claim against Casto, it was not time-barred. Accordingly, we must reverse that portion of the trial court’s order granting summary judgment to Casto.

3. Applying an agency theory, Gibson contends that Preferred Risk is liable for Casto’s acts and omissions. We disagree.

An agency relationship arises “wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” OCGA § 10-6-1. Casto testified that he never acted as Preferred Risk’s agent. He averred that he controlled the contents of the answer filed on Gibson’s behalf, the communications between Gibson and himself, and his actions on Gibson’s defense. Gibson admitted that he and Casto had never discussed Casto’s relationship with Preferred Risk. Absent some evidence supporting Gibson’s claim of agency, summary judgment was appropriate. See Walston v. White, 213 Ga. App. 441, 443 (444 SE2d 855) (1994).

Judgment affirmed in part and reversed in part.

Johnson, P. J., and Smith, J., concur.

James E. Spence, Jr., for appellee.

Philip M. Casto, pro se.

       Mary Gibson died on January 14, 1996 and her son was appointed executor of her estate.

       Although a joint stipulation by the parties to extend time to file a counterclaim is ineffective to extend the statute of limitation, the trial court has discretion to allow a late counterclaim despite the fact that the statute of limitation would otherwise bar the underlying right of action. Unnever v. Stephens, 142 Ga. App. 787, 788 (2) (236 SE2d 886) (1977); Davis & Shulman, Ga. Prac. & Proc., § 11-3 (1997 ed.).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A98A0969.
    GAC, MFG/PROCESSING et al. v. BUSBIN.
    (504 SE2d 270)
   Ruffin, Judge.

In this workers’ compensation case, the ALJ denied the employee’s claim without hearing any of the employer’s evidence; the appellate division reversed the denial and remanded the claim for taking the employer’s evidence; and the superior court affirmed the appellate division’s decision. We granted the discretionary application to determine whether the appeal of the appellate division’s decision was premature.

The record shows that Cecil Bushin was employed as a truck driver by Orilla Gin, Inc., and he sustained a broken neck when his truck ran off the road as he was hauling a load of cotton back to his employer. Bushin had no specific recall of the actual accident, although the company dispatcher testified that Bushin had been sent to pick up a load of cotton on the day of the injury.

At the close of Bushin’s evidence, the employer moved for a directed verdict denying the claim on the ground that there was no evidence showing that the accident arose out of and in the course of Bushin’s employment. The ALJ adjourned the hearing at that point without hearing the employer’s evidence and ultimately denied the claim on that basis. However, the appellate division found that as a matter of law, the evidence presented by Bushin established a prima facie case otherwise and remanded the case for taking the employer’s evidence. The employer appealed to the superior court, which affirmed the appellate division.

As the appellate division’s decision rendered the case pending before the trial division of the State Board, the superior court should have declined to review the employer’s appeal because such an interlocutory appeal is unauthorized under the Workers’ Compensation Act. “Nowhere in our [workers’ compensation] statute is there provision for an interlocutory appeal.” Garner v. Owens-Illinois Glass Container, 134 Ga. App. 917, 920 (2) (216 SE2d 709) (1975). The statute “plainly, clearly, and unambiguously prescribes that only a final award, order, judgment, or decision of the board is subject to appeal to the superior court. . . . [T]he Workers’ Compensation Act makes no provision for an appeal to the superior court from a decision by the full board other than one which grants or denies compensation.” (Citation and punctuation omitted; emphasis in original.) Fasher Painting &c. Co. v. Bordelon, 204 Ga. App. 196 (2) (419 SE2d 82) (1992).

Decided July 14, 1998.

Clyatt & Clyatt, Robert M. Clyatt, Melissa M. Clyatt, for appellants.

Beauchamp & Associates, Flora L. Beauchamp, for appellee.

In view of the above, the superior court’s judgment affirming the appellate division’s decision is reversed, and the superior court is directed instead to dismiss the appeal as premature. See Conwood Corp. v. Guinn, 190 Ga. App. 595, 596 (379 SE2d 621) (1989).

Judgment reversed and case remanded with direction.

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


author: Eldridge, Judge.

text:
    A98A1664.
    A98A1665.
    SENSKE v. HARRIS TRUST & SAVINGS BANK. ROZEBOOM v. HARRIS TRUST & SAVINGS BANK.
    (504 SE2d 272)
   Eldridge, Judge.

Appellants/defendants Bruce H. Senske and Loren C. Rozeboom appeal the trial court’s order finding appellants personally liable as guarantors on a promissory note to secure debt and granting summary judgment to appellee/plaintiff Harris Trust & Savings Bank in its action against appellants to recover the deficiency remaining after the sale of the property which secured the debt.

As determined by the trial court and supported by the record, appellants and Glenn W. Boyce were, general partners of Alliance Partners (“Alliance”), a Georgia general partnership. On December 5, 1989, Allstate Life Insurance Company loaned Alliance $2,535,000 in order to purchase a commercial office building located at 2900 Jones Mill Road, Norcross, Gwinnett County (“property”). In exchange for the loan, Alliance signed a Promissory Note (“Note”) and delivered a security deed on the property which contained an acceleration clause and a power of sale which authorized the lender to foreclose and sell the property in the event of a default. In addition, paragraph 17 of the Note contained a nonrecourse clause wherein liability was to be limited and satisfied from the property.

However, also in exchange for the loan, the three Alliance partners, appellants and Boyce, executed and delivered to Allstate Life Insurance Company a personal Guaranty Agreement (“Guaranty”) for the loan amount. Thereunder, each unconditionally guaranteed the full and prompt payment of all principal and interest due and owing on the Note when it matured, “[notwithstanding the provisions of paragraph 17 [the nonrecourse clause] of the Note.” In addition, the Guaranty specified that “[t]he obligations of the Guarantor hereunder are direct and immediate and not conditional upon pursuit by Lender [Allstate] of any remedies Lender may have against Borrower [Alliance]” or “any security for the Liabilities,” i.e., the property which secured the Note. The Guaranty was executed on the same day as the Note, December 5, 1989.

Approximately four years later, Boyce withdrew as a partner of Alliance. Allstate consented to excuse Boyce from his obligations under the Guaranty, but required appellants, as the remaining Alliance partners, to re-affirm their personal guaranty of the loan amount. Consequently, appellants signed an Amended Guaranty Agreement (“Amended Guaranty”) re-affirming their financial obligations to Allstate. The Amended Guaranty tracked precisely the language of the initial Guaranty, with the addition of a single paragraph, which stated:

“This amended guaranty agreement serves to modify the initial guaranty agreement entered into between the parties hereto and Glenn W. Boyce on or about December 5, 1989. All parties to this agreement acknowledge that Glenn W. Boyce is no longer a guarantor in favor of the Lender under said previous agreement. Further, the parties to this agreement further acknowledge that Glenn W. Boyce is no longer a member or partner of Borrower. The remaining terms of said previous agreement shall remain in full effect.” (Emphasis supplied.) The Amended Guaranty was dated April 1, 1993.

On October 25, 1993, Allstate assigned the loan to Harris Trust & Savings Bank (“Harris Trust”), which assignment included the initial Guaranty and the Amended Guaranty. Alliance defaulted on the Note in February 1994. Harris Trust made demand for payment upon Alliance in a letter dated April 4, 1994. The letter also contained notice of Harris Trust’s intent to accelerate the debt and exercise its power of sale at public auction, if payment was not received within ten days from receipt of the letter.

Alliance failed to pay. Appellants, as guarantors, also failed to pay the amounts due and owing under the Note. Harris Trust foreclosed on the property and sold it at public auction on May 3, 1994. The Superior Court of Gwinnett County confirmed the sale. The confirmation was subsequently affirmed by the Supreme Court of Georgia. Alliance Partners v. Harris Trust & Sav. Bank, 266 Ga. 514 (467 SE2d 531) (1996). Based upon the Guaranties, Harris Trust filed suit against appellants for the deficiency between the loan amount and sale price of the property, including interest and penalties.

On motion for summary judgment, the trial court found as a matter of fact that as of May 3, 1994, the amount owed on the Note, including penalties and interest (except attorney fees) was $2,805,195.42. The property sold at foreclosure for $2,017,000, leaving a deficiency of $788,195.42. The interest on the deficiency accrued at the daily rate of $320.20. As of February 17,1998, accrued prejudgment interest totaled $443,797.20 (1,386 days x $320.20). The entire amount of the deficiency and prejudgment interest as of February 17, 1998, was $1,231,992.60. In addition, the trial court found that Harris Trust made out a prima facie right to judgment and that appellants failed to establish any affirmative defense thereto. The trial court awarded the above amount reflecting the deficiency and interest, and the court also awarded attorney fees pursuant to OCGA § 13-1-11 in the amount of $123,224.26. Held:

“It is ordinarily the duty of the court to interpret a contract as a matter of law and, where necessary, to construe it by applying the rules of construction set forth in OCGA § 13-2-2. The cardinal rule for construing a contract is to ascertain the intent of the parties. Where the language of an instrument may fairly be understood in more than one way, it should be interpreted to reflect the sense in which the parties understood it at the time of execution, and extrinsic evidence is admissible to establish what that original understanding was. That meaning is to be preferred which will give effect to the contract as a whole.

“If, after application of the rules of construction, there remains an ambiguity, then it becomes the duty of the jury, as finder of fact, to construe the instrument so as to resolve that ambiguity. It is the court who decides whether or not, after application of the rules of construction, an ambiguity exists.” (Citations omitted.) Gans v. Ga. Fed. Sav. & Loan Assn., 179 Ga. App. 660, 662-663 (1) (347 SE2d 615) (1986).

Here, there is no ambiguity, and the trial court correctly found the intent of the parties was manifest in the language of the loan documents, including the initial Guaranty and the Amended Guaranty. Obviously, appellants wanted the loan from Allstate and were willing to personally guarantee its payment in order to get it. Later, when their partner Boyce wanted out of the Alliance partnership, appellants necessarily re-affirmed their personal financial commitment to the loan as the remaining partners of Alliance. Clearly, the entire purpose of the Amended Guaranty was the removal of Boyce, and in that regard, the “remaining terms of said previous agreement [Guaranty] shall remain in full effect.” (Emphasis supplied.)

However, without ever addressing the clear intent of the parties when executing both Guaranties, appellants seek to avoid the contract.

1. First, appellants contend that there is a “fatal variance” in the Amended Guaranty which precludes its enforcement, because the Amended Guaranty includes the initial Guaranty’s reference to the Note as “a mortgage note of even date herewith.” However, appellants argue, the Amended Guaranty is dated April 1, 1993, and the Note is dated December 5, 1989. Accordingly, appellants contend that the Amended Guaranty’s incorrect reference to a mortgage note dated April 1, 1993, failed to obligate them to pay the December 5, 1989 Note that is the subject of this action.

We reject this argument. The extension of appellants’ argument is that they made a personal guaranty for the payment of a nonexistent debt, and that, obviously, is not the case. We refuse to focus on the “even date herewith” language at the expense of the contract as a whole. “The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.” OCGA § 13-2-2 (4). Herein, both the initial and the Amended Guaranty reveal the intent of appellants to personally commit to the payment of the December 5, 1989 Note.

Contrary to appellants’ contentions, our decision in Avec Corp. v. Schmidt, 207 Ga. App. 374 (427 SE2d 850) (1993), is not applicable herein. In that case, there was nothing within the four corners of the disputed guaranty which otherwise demonstrated the intent of the parties as to the lease agreement being referenced in the guaranty by the language “the lease between them dated hereof,” since the only lease involved was executed on a different date from the guaranty. Id. at 375-376. However, here the Amended Guaranty specifically states that the Note at issue is the December 5, 1989 Note, despite the “even date herewith” language. In fact, the Amended Guaranty declares that, after the removal of Boyce as an obligor, the remaining terms of the initial Guaranty regarding the December 5, 1989 Note are to remain in full effect. Thus, there is nothing “implied” about the extent of appellants’ liability under the Amended Guaranty.

2. Equally meritless is appellants’ contention that Harris Trust’s remedy was limited to either foreclosure on the property or suit on the personal Guaranty, not both, and that once the property was foreclosed, the appellants’ personal Guaranty was satisfied.

In this case, the lender already had a security interest in the property with a power of sale when appellants’ personal Guaranty was executed. The whole purpose of the personal Guaranty was to cover a potential deficiency in satisfying the entire loan amount through foreclosure on the property — not an unreasonable provision in light of events. In that regard, the Guaranty and Amended Guaranty provide that “[t]he obligations of the Guarantor hereunder are direct and immediate and not conditional upon pursuit by Lender of any remedies Lender may have against Borrower [Alliance]. A separate action or actions for payment, damages or performance may be brought and prosecuted against Guarantor whether or not an action is brought against Borrower or any security for the Liabilities.” Thus, there is no limitation on Harris Trust’s pursuit of remedies in order to recover the full loan amount.

Accordingly, notwithstanding the nonrecourse provision in the security deed, by executing the Guaranty and Amended Guaranty appellants evidenced the intention to. bind themselves personally on the Note in the same fashion that the security deed bound the Alliance partnership on the Note. Such additional collateral was required in order for appellants to secure the loan, and at that time, the appellants willingly undertook that personal obligation in exchange for what they wanted. And the fulfillment of the obligations of Alliance under the Note through foreclosure on the property in no way eliminates the need for appellants to fulfill their obligations under the Guaranty and the Amended Guaranty for the remaining deficiency.

3. Next, appellants contend that the amount of debt was not established so as to warrant the trial court’s award of damages on summary judgment. We disagree. The trial court relied upon competent evidence regarding the amount of debt. The record contains the sworn testimony of the Loan Servicing Manager at Allstate, wherein the loan originated, who made detailed calculations as to the amount owed by appellants, including the interest and penalties, offset by the amount recovered by the sale of the property at public auction; these figures were based upon the rates contained in the loan documents which were already made a part of the record. Compare Watson v. Dept. of Ed. Credit Union, 201 Ga. App. 761 (412 SE2d 286) (1991); Jernigan Auto Parts v. Commercial State Bank, 186 Ga. App. 267, 270 (1) (367 SE2d 250) (1988). Further, appellants did not dispute these calculations or object to the documents upon which the calculations were based. Nor did appellants offer any evidence to contradict the Loan Servicing Manager’s figures.

“In this case, the movant bank introduced affidavits of persons competent to establish the underlying facts of the bank’s claim. The appellants were duly served. The bank carried its initial burden of showing the absence of any material issue of fact. The appellants did not present refuting evidence. Thus, the grant of summary judgment was proper. The appellants cannot rely upon the mere denial in their pleadings. They had a duty to respond to the bank’s motion as supported by evidence in such a manner as to show a genuine issue of fact. The bank’s evidence established its right to its claim. That right was not refuted. It follows that the trial judge did not err in granting the bank’s motion for summary judgment for any of the reasons alleged.” (Citations omitted.) Ga. Grain &c. Co. v. First Ga. Bank, 142 Ga. App. 709, 710-711 (3) (236 SE2d 913) (1977); see also Pollard v. First Nat. Bank of Albany, 169 Ga. App. 598 (1) (313 SE2d 785) (1984).

Decided July 14, 1998.

Siegel & Golder, Mark L. Golder, Lynn L. Carroll, for appellant (case no. A98A1664).

Davidson, Fuller & Sloan, William M. Davidson, Stephen P. Fuller, for appellant (case no. A98A1665).

4. Finally, appellants contend the loan was secured by both real and personal property, and that Harris Trust did not liquidate appellants’ personal property in a “commercially reasonable manner” under the Uniform Commercial Code, OCGA § 11-9-504. Thus, appellants contend that Harris Trust should not be permitted to pursue the instant deficiency action. This contention is wholly without merit. While the loan may have been secured by real and personal property, “[i]f the security agreement covers both real and personal property, the secured party may proceed under this part [UCC] as to the personal property or he may proceed as to both the real and the personal property in accordance with his rights and remedies in respect of the real property in which case the provisions of this part [UCC] do not apply!’ (Emphasis supplied.) OCGA § 11-9-501 (4). Harris Trust chose to exercise its “rights and remedies in respect of the real property.” Id.; see also OCGA § 44-14-161. Accordingly, the UCC does not apply to deter the instant action. United States &c. v. Kennedy, 256 Ga. 345, 347 (2) (348 SE2d 636) (1986).

Moreover, the Supreme Court of Georgia has held that the foreclosure on the property which secured the loan and the confirmation thereof were completely proper. Alliance Partners v. Harris Trust & Sav. Bank, supra. We do not go behind that ruling to address appellants’ arguments that should have been raised in the earlier action.

Judgment affirmed.

McMurray, P. J, and Blackburn, J, concur.

Alston & Bird, Richard R. Hays, Cynthia L. Counts, Sterling G. Culpepper, for appellee.

       The security for the loan included “certain real property, the improvements thereon and certain personal property . .. (‘Subject Propert/).”

       The Note and the initial Guaranty were both executed on December 5, 1989.

       Appellants’ pleadings reflect that the foreclosure sale price of the property was $2,017,000.


author: Blackburn, Judge.

text:
    A98A1173.
    TURNER v. THE STATE.
    (504 SE2d 229)
   Blackburn, Judge.

Following a bench trial Kelly Lynn Turner appeals the finding of her guilt of driving under the influence of alcohol to the extent that she was a less safe driver, contending that the trial court erred by denying her motion in limine to suppress evidence that she made racial slurs while being questioned, that she failed certain field sobriety tests, and that she refused to take certain other field sobriety tests. Turner also contends that the evidence was insufficient to support the verdict. For the reasons set forth below, we affirm.

1. “When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.” (Citations omitted.) Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

On December 29, 1994, Officer S. Cruz of the Fulton County Police Department arrived at the scene of a two-car collision. The vehicles were driven by Turner and Priscilla Boneau. Cruz checked for injuries, and he asked Turner for her driver’s license and proof of insurance. As he did so, he detected the odor of an alcoholic beverage around Turner, and he noticed that Turner’s speech was slurred. Then, while the accident was being cleared from the road, Officer Cruz placed Turner in the back seat of his patrol car both because he could not detect where the odor of alcohol was coming from and because he wanted to keep Turner out of the lane of traffic for her own safety. After the cars had been moved from the roadway, Cruz returned to his patrol car and noticed the strong odor of alcohol in his car where Turner had been detained. During Turner’s motion to suppress hearing, she admitted that she had been consuming alcoholic beverages on the night of the accident.

Surmising that the odor of alcohol was coming from Turner’s breath, Cruz asked Turner to submit to some field sobriety tests, which she failed to perform correctly. Specifically, Turner slurred and misplaced letters while reciting the alphabet, and, when instructed to count backwards from fifteen to five, she counted from fifteen to zero. When walking Turner to her car, Cruz noticed that Turner was neither steady on her feet nor able to walk straight. His suspicions aroused, Cruz called for a DUI unit to come to the scene to do further testing. When the DUI unit arrived, Cruz and Turner exited the patrol car, but Turner refused to cooperate with further testing, and she would not submit to either an alco-sensor evaluation or an HGN evaluation. When asked to take the alco-sensor test, Turner stated, “you don’t have a nigger’s chance in the backyard,” and when she was asked to undergo the HGN test, Turner replied that she could not do so because she was blind. Cruz arrested Turner for driving under the influence of alcohol and read her implied consent rights to her. Turner then responded: “You don’t have a nigger’s chance in the backyard of taking me to jail. ... I was a cop in Albany for 11 years and now I’m a law student so I know how to beat you. You’re not taking me to jail.” At the precinct, Turner refused to take an alco-sensor test again, and she claimed that her larynx was broken.

Turner maintains that the trial court erred by denying her motion in limine to suppress the evidence that she made racial slurs while being questioned without having been informed of her Miranda rights, and that she failed the alphabet and the counting backwards field sobriety tests and refused to take the alco-sensor and HGN tests prior to being informed of Georgia’s law against self-incrimination pursuant to OCGA § 24-9-20. Turner bases these contentions on her argument that she was in police custody at the time that she was originally placed in the back seat of Cruz’s patrol car. More specifically, Turner argues that she was in custody because no reasonable person in her circumstances that evening would have believed that the detention was temporary or that she was free to leave. This argument, however, lacks merit.

(a) “If the police take a suspect into custody and ask questions without informing the person of [her] Miranda rights, the responses cannot be introduced into evidence to establish [her] guilt. Berkemer v. McCarty, 468 U. S. 420, 429 (II) (104 SC 3138, 82 LE2d 317) (1984). The United States Supreme Court defined ‘custodial interrogation’ as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of [her] freedom of action in any significant way.’ Miranda [v. Arizona, 384 U. S. 436, 444 (86 SC 1602, 16 LE2d 694) (1966)]; see Shy v. State, 234 Ga. 816, 819 (I) (218 SE2d 599) (1975). Only statements made by a suspect while in custody and under police interrogation give rise to the issue of Miranda warnings.” State v. Wintker, 223 Ga. App. 65, 66 (476 SE2d 835) (1996). See also Morrissette v. State, 229 Ga. App. 420, 421-422 (494 SE2d 8) (1997). Therefore, the Fifth Amendment protections embodied by Miranda would be applicable only to Turner’s statements, not the results of her field sobriety tests. Id.

“In determining whether a suspect was in custody for Miranda purposes, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Stansbury v. California, 511 U. S. 318 (II) (114 SC 1526, 128 LE2d 293) (1994).” (Citation and punctuation omitted.) Wintker, supra. “A reasonable person test. . . applies to determine whether an individual not formally arrested is nevertheless in custody for Miranda purposes. This occurs if, but only if, a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest. A reasonable person has been defined as one neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.” (Punctuation and footnote omitted.) Id. at 67.

Turner contends that, because her license was taken and she was temporarily confined in Cruz’s patrol car, she was in custody. In a recent opinion involving similar facts, however, we held that such a situation does not necessarily amount to custody which would trigger protections against self-incrimination. In Morrissette, supra, Officer Dale Nix arrived at the scene of a one-car accident and detected a strong odor of alcohol on the driver, Morrissette. Nix took Morrissette’s license, called for the assistance of Officer John Fox, an officer trained in DUI detection, and placed Morrissette into the back seat of his patrol car. The back door handles of the patrol car had been removed, making it difficult to open the doors from inside, and, regardless, “had [the driver] been able to exit the patrol car, he could not have left the scene. His own vehicle was not driveable, and even if it had been, [he] had been in an accident and had a legal obligation to remain at the scene.” Id. at 421 (1) (a). The DUI officer arrived in approximately five minutes, and Morrissette was asked to perform certain field sobriety tests. After the tests, Morrissette was placed back into the patrol car while the wreck was removed and cleared. After the road was cleared, Fox arrested Morrisette and read his implied consent rights to him.

In response to Morrissette’s argument that evidence of his sobriety tests should be excluded, this Court held: “Morrissette was not ‘in custody.’ Morrissette was in the back seat of Nix’s patrol car ‘less than five minutes’ awaiting Fox’s arrival. He was released from the patrol car as soon as Fox arrived. And the fact that Morrissette may have had no apparent way of leaving and that he owed a legal duty to remain at the scene for other reasons does not mean he was ‘in custody’ for Miranda purposes. ‘The fact that an officer retains a detainee’s license for a short period during the course of an investigation does not necessarily mean that the detainee is in custody, even if at that point, by leaving, the detainee could be arrested for violating State law.’ State v. Pastorini, 222 Ga. App. 316, 317-318 (1) (474 SE2d 122) (1996). Here, as in Pastorini, the detainee’s driver’s license was taken to enable the officers to proceed with investigating the vehicular accident in which the detainee was involved. A reasonable person would conclude under such circumstances that the detention was only temporary and not the equivalent of a formal arrest.” (Citation and footnote omitted; emphasis in original.) Id. at 422 (1) (a).

As in Morrissette, Turner was not placed in custody at the time that she was placed into Cruz’s patrol car. Furthermore, although Turner testified that she remained in the patrol car for 15 minutes, Cruz testified that part of the reason Turner was placed there was for her own safety while the accident was being cleared. Viewing all of the circumstances in this case, we find that a reasonable person in Turner’s position would “conclude under such circumstances that the detention was only temporary and not the equivalent of a formal arrest.” Morrissette, supra. There was no formal arrest of Turner until after she refused to take the aleo-sensor and HGN tests at the scene of the accident. As such, she was not in custody prior to that time, and her Miranda rights were not triggered. Furthermore, although Turner continued to make racial slurs following her arrest, such slurs were spontaneous and were not elicited by custodial interrogation. Therefore, the trial court did not err in admitting Turner’s statements.

(b) “As a general rule, no Miranda warnings are required while the investigating officer conducts preliminary questioning or field sobriety tests or advises a defendant of his right to an independent test. See Keenan v. State, 263 Ga. 569, 572 (2) (436 SE2d 475) (1993); State v. Whitfield, 214 Ga. App. 574 (1) (448 SE2d 492) (1994). . . . [B]ecause state law affords greater protection against self-incrimination than the federal constitution, after arrest, Miranda warnings must precede questioning during field sobriety tests. State v. O’Donnell, 225 Ga. App. 502, 503 (1) (484 SE2d 313) (1997); OCGA § 24-9-20.” (Emphasis supplied.) State v. Warmack, 230 Ga. App. 157, 158 (495 SE2d 632) (1998). OCGA § 24-9-20 (a) provides: “No person who is charged in any criminal proceeding with the commission of any indictable offense or any offense punishable on summary conviction shall be compellable to give evidence for or against himself.” However, such rights do not come into play until after a defendant has been arrested. As Turner was not under arrest until after she refused to submit to the aleo-sensor and HGN tests, the trial court properly admitted evidence of such refusals and evidence of her failure of the alphabet and counting tests.

Decided June 24, 1998

Reconsideration denied July 15, 1998

Monte K. Davis, for appellant.

Carmen Smith, Solicitor, Jay F. Eidex, Fay I. McCormack, Cynthia G. Strong-McCarthy, Assistant Solicitors, for appellee.

2. Turner’s contention that the evidence was insufficient to support the verdict is meritless. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997).

As an initial matter, we reject Turner’s argument that the trial court based its determination only on the racial statements made by Turner. The trial court’s opinion expressly shows that it considered the other evidence presented at trial in addition to the racial slurs in reaching its conclusion. As such, Turner’s reliance on Brinson v. State, 232 Ga. App. 706 (503 SE2d 599) (1998), is misplaced. In Brinson, the trial court expressly stated that it found that the only evidence supporting its decision that the defendant therein was guilty of driving under the influence of marijuana was the defendant’s refusal to take a state-administered drug test. In contrast, the trial court in this case clearly considered the interaction of all the available evidence in reaching its decision. As such, Brinson is distinguishable. Moreover, we must point out that Brinson is physical precedent only.

Here, Cruz testified that he smelled alcohol on Turner’s breath, that Turner failed to properly complete two field sobriety tests, that Turner was unsteady on her feet, that Turner used racial slurs, and that, in his opinion, Turner was under the influence of alcohol such that she was less safe to drive. This evidence was sufficient to support the verdict against Turner. See, e.g., Garrett v. State, 230 Ga. App. 97 (2) (495 SE2d 579) (1998); Bayer v. State, 230 Ga. App. 708, 711 (4) (497 SE2d 266) (1998).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       The evidence shows that Turner had previously worked as a police officer and that she was a law school student at the time of the accident.


text:
    A98A1225, A98A1295.
    IDOWU v. THE STATE (two cases).
    (504 SE2d 474)
   Eldridge, Judge.

A Fulton County grand jury indicted appellant Alton Idowu for an aggravated assault on his 11-year-old son that occurred when Idowu beat the child about the back, thighs, buttocks, and scrotum with a belt because the boy did not do his math homework correctly. The victim suffered multiple lacerations and bleeding. A jury found Idowu guilty as charged. He appeals, raising two issues of law. We affirm.

1. Idowu contends that the State improperly placed his character at issue by violating the trial court’s pretrial ruling, which found that evidence regarding Idowu’s relationship with his wife was inadmissible. Specifically, Idowu complains that (1) during opening argument the prosecutor stated that Idowu’s wife was “afraid” of him; and (2) a State’s witness testified that after the beating of his son, Idowu’s wife took the children to a “battered women’s shelter.” This contention is without merit.

A reference to a “battered women’s shelter” is not substantive evidence of Idowu’s “relationship with his wife” as proscribed by the trial court’s pretrial ruling. Simply because the shelter is called a “battered” women’s shelter does not substantively demonstrate that “battering” actually occurred, either in the past or in the present, so as to demonstrate their “relationship.”

Moreover, during the beating incident at issue, Idowu’s wife tried to take the belt away from Idowu. Idowu swung at her and grabbed her by the hair. This proper res gestae evidence, alone, was sufficient to explain why Idowu’s wife might have been “afraid” of him and removed the children to a shelter, without any explanation of the “relationship” between them. There was no error.

2. Idowu contends that the trial court erred when it added the following language to the statutory definition of the lesser included offense of reckless conduct: “Thus, a crime of reckless conduct is, in essence, an instance of criminal negligence rather than an intentional act which causes bodily harm to or endangers the bodily safety of another.”

The charge about which the appellant complains is a correct statement of the law. Bowers v. State, 177 Ga. App. 36, 38 (1) (338 SE2d 457) (1985). “In a given case, reckless conduct may become a lesser included offense of aggravated assault, not necessarily by the adding or subtracting of elements, but merely by the substitution of another element for that of any formed general intent to commit the greater offense thereby resulting, in essence, in a finding of a lesser degree of culpability within the meaning of OCGA § 16-1-6 (2).” Brewton v. State, 216 Ga. App. 346, 347 (454 SE2d 558) (1995); see also Bowers v. State, supra at 38. A finding of guilty as to aggravated assault requires a finding of an intentional infliction of injury, which precludes the element of criminal negligence in reckless conduct. (Emphasis supplied.) Sheats v. State, 210 Ga. App. 622 (436 SE2d 796) (1993). There was no error.

Decided June 26, 1998

Reconsideration denied July 15, 1998

James W. Gibert, for appellant.

Paul L. Howard, Jr., District Attorney, David E. Langford, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Reversed on other grounds in Brewton v. State, 266 Ga. 160 (465 SE2d 668) (1996).


text:
    A98A1315.
    MAXWELL v. THE STATE.
    (503 SE2d 668)
   Eldridge, Judge.

A DeKalb County grand jury returned an indictment against appellant Herbert Maxwell and two co-defendants, Alonzo Johnson and Dennis Jordan, charging each of them with one count of armed robbery, three counts of aggravated assault, one count of burglary, and two counts of false imprisonment. A jury found all three men guilty of armed robbery, one count of aggravated assault, and two counts of false imprisonment. Here, Maxwell appeals, challenging the sufficiency of the evidence against him and alleging three errors of law. We affirm.

1. On appeal following a conviction, the evidence must be viewed in a light most favorable to the verdict, and Maxwell no longer enjoys a presumption of innocence; moreover, on appeal this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Webb v. State, 228 Ga. App. 624, 625 (492 SE2d 312) (1997).

In a light most favorable to the verdict, the evidence in this case shows that in November 1996, at approximately 8:00 p.m., Epimenio Jimenez and his brother-in-law, Ever Aquirre, were in their ground floor apartment located at 4753-A Terrace Garden Apartments, Buford Highway, Chamblee, Georgia. Also present were Jimenez’s three young children and Jimenez’s brother, Albaro. Ever Aquirre heard a knock at the front door. As he opened the door, it was kicked open the remainder of the way. Appellant Maxwell entered the apartment along with co-defendants Johnson and Jordan.

Maxwell and Johnson had guns; Jordan carried a knife. Maxwell put his gun to Aquirre’s head, and Johnson pulled several gold chains from around Aquirre’s neck. Maxwell then hit Aquirre in the head with his weapon. All three of the assailants repeatedly demanded money.

After the initial assault on Aquirre, Epimenio Jimenez rushed into the bedroom to call 911. He held the bedroom door shut as the assailants kicked at it. The police received the 911 call and immediately dispatched officers to the scene. One officer, E. Westbrooks, was on patrol nearby and reached the complex within “seconds” of the 911 call going out. Officer Westbrooks also worked security at the apartments when off-duty, so he was familiar with the precise incident location in the large complex. He pulled in front of the victims’ building and waited for backup assistance.

In the apartment, the assailants were successful in kicking the bedroom door almost all the way in. When they discovered that Jimenez was on the telephone with the police, Maxwell and the co-defendants fled the apartment. They got into a black Acura that had been parked outside the victims’ building and started to leave the parking lot at a high rate of speed with the car’s headlights off. As Officer Westbrooks witnessed this, Albaro Jimenez rushed out into the parking lot yelling and pointing at the fleeing Acura. Westbrooks activated his blue lights and siren and followed the Acura, which then exited the complex from the drive marked “entrance,” almost hitting an entering police car.

Westbrooks and other officers engaged in a high speed chase of the black Acura down Buford Highway to Clairmont Road. The Acura reached speeds of over 90 mph and continuously changed lanes in order to avoid traffic. The Acura turned onto Clairmont where it hit a pickup truck and was knocked off the road. Westbrooks, close behind, pulled over and immediately approached the vehicle; the driver was attempting to “crank” the car in order to continue to flee. Westbrooks removed the driver from the car. Other officers on the scene removed the passengers. Dennis Jordan was the driver, and Alonzo Johnson was the front seat passenger. Appellant Maxwell was in the back seat of the Acura.

Only 20 minutes had elapsed between the time of the initial armed robbery and the stop. Ever Aquirre was brought to the scene on Clairmont Road and identified Maxwell as the one who put the gun to his head and struck him with the weapon; Aquirre also identified co-defendants Johnson and Jordan as participants in the armed robbery.

Thereafter, pursuant to a search of the car, a brown leather gun holster was found in the back seat floorboard, near where Maxwell had been sitting. The holster was marked “Smith & Wesson Model 29.” Because a gun was not located in the Acura, officers returned to the victims’ apartment building to search for one. A blue steel Smith & Wesson Model 29 revolver was located in the fire lane of the parking lot nearest the victims’ building. The weapon fit the holster recovered from the Acura.

At trial, the jury heard the 911 tape, which included a terrified Epimenio Jimenez reporting what was happening as it occurred, children crying out in the background, and Jimenez’s attempts to prevent the assailants from breaking in the bedroom door. The jury heard testimony from Jimenez, as well as Aquirre who made an in-court identification of Maxwell, Johnson, and Jordan as the perpetrators of the armed robbery. The jury also heard testimony from the police officers involved, including Westbrooks, regarding the chase, the investigation, and the identification of Maxwell, Johnson, and Jordan as the occupants of the Acura. An officer also testified as to Aquirre’s out-of-court identification of the three men as the perpetrators of the armed robbery at the time of the incident. The jury had before it both the Smith & Wesson Model 29 holster recovered from the back floorboard of the Acura and the Smith & Wesson Model 29 revolver found in the parking lot near the victims’ apartment. Also, the jury heard the statements that Aquirre and Jimenez gave to the police at the time of the incident, which statements did not vary in any material respect from their trial testimony. Neither Maxwell nor the other defendants introduced any evidence at trial.

We find that the evidence was more than sufficient for a rational trier of fact to have found Maxwell guilty beyond a reasonable doubt of the offenses of armed robbery, aggravated assault, and two counts of false imprisonment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Maxwell contends that under the recent Supreme Court of Georgia case of Duckworth v. State, 268 Ga. 566 (492 SE2d 201) (1997), the trial court erred by requiring that he tender the statements of the victims into evidence before using the prior inconsistencies allegedly contained therein for impeachment purposes. Maxwell contends that this error resulted in his losing the right to final opening and concluding argument to the jury.

Appellant is correct that under the Supreme Court’s holding in Duckworth v. State (decided six months after the trial of this case), “the statute [OCGA § 24-9-83] does not require that the prior inconsistent statement be admitted into evidence before it is used for impeachment purposes.” Id. at 568. Thus, the trial court’s ruling was error. “However, error does not require reversal unless there is harm resulting from it. Mobley v. State, 265 Ga. 292 (4) (455 SE2d 61) (1995).” Jackson v. State, 268 Ga. 391, 392 (490 SE2d 84) (1997).

Here, unlike in Duckworth and the cases cited therein, Maxwell registered his objection to the trial court’s ruling and then acquiesced in that ruling, tendering the victims’ statements, which were read verbatim to the jury. Maxwell’s attorney cross-examined the victims vigorously regarding perceived inconsistencies between their statements and their trial testimony. Such alleged inconsistencies were before the jury for their consideration. Accordingly, the issue here involves an analysis of a different type of “harm” than that ostensibly flowing from the trial court’s erroneous ruling in Duckworth; here, the harm alleged is the loss of opening and concluding argument to the jury.

“[W]here the evidence in a criminal case demands a verdict of guilty, the fact that the defendant was improperly deprived of the right to open and conclude the argument will not necessitate a new trial.” (Citation omitted.) Scott v. State, 243 Ga. 233, 235 (253 SE2d 698) (1979); Vaughn v. State, 171 Ga. App. 261, 262 (319 SE2d 97) (1984). Here, in light of the 911 tape, the immediacy and intensity of the police chase of Maxwell from the scene, the prompt out-of-court identification and subsequent in-court identification of Maxwell as a perpetrator, the location and connection of the holster and the weapon to Maxwell and the incident, as well as other testimony at trial and the complete absence of any defense to the crimes, “we find it highly probable that any error in this regard did not contribute to the verdict.” (Citations and punctuation omitted.) Seavers v. State, 208 Ga. App. 711, 713 (431 SE2d 717) (1993).

3. Maxwell next challenges as error the trial court’s charge to the jury:

(a) Maxwell contends that the trial court’s charge that “[a] reasonable doubt may grow out of evidence or the lack thereof” was insufficient because it failed to instruct the jury that reasonable doubt may arise from a “conflict in the evidence.”

We have reviewed the trial court’s instructions as a whole and find this contention meritless. The court instructed the jury that reasonable doubt must be based upon evidentiary considerations, which is the law. Lloyd v. State, 214 Ga. App. 564, 568-569 (448 SE2d 729) (1994). The trial court further instructed the jury regarding conflicts in evidence that may arise, and the jury’s duty with regard to the credibility of witnesses in the event of conflicting testimony.

“As the charges given were correct statements of the law, and we do not believe that the charge as a whole would mislead a jury of average intelligence, we find no error.” (Citation omitted.) Dooley v. State, 221 Ga. App. 245, 246 (3) (470 SE2d 803) (1996).

Decided June 30,1998

Reconsideration denied July 15,1998.

Cynthia A. Price, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Barbara B. Conroy, Assistant District Attorneys, for appellee.

(b) The decision to raise at trial specific objections to the jury charge and the failure thereafter to reserve the right to raise additional objections on motion for new trial or on appeal precludes this Court’s consideration of any alleged errors in the charge not raised in the court below. Russell v. State, 264 Ga. 121 (3) (441 SE2d 750) (1994).

4. Maxwell contends that the trial court erred in permitting the State to call translator Marguerite Ramirez as a witness when (a) her name was not on the witness list pursuant to OCGA § 17-16-8 and (b) Ramirez testified as an “expert,” offering opinion evidence as to what the victims meant in certain statements. We find no error.

(a) In objecting to this witness’ testimony, Maxwell did not request a continuance, seek an opportunity to interview the witness prior to her testimony, or claim unfair surprise or prejudice of any kind. Under such circumstances, the trial court did not err in permitting Ramirez to testify, although her name was not on the witness list. OCGA §§ 17-16-6; 17-16-8; Satterfield v. State, 228 Ga. App. 89 (491 SE2d 189) (1997).

(b) The victims made their statements to the police in Spanish. Marguerite Ramirez translated these statements into English for the jury. Such a witness is not an “expert” witness because such witness offers no personal knowledge of any substantive fact regarding the case for which the translation is received. OCGA § 24-9-67. Further, a review of the record shows that Ramirez’s “opinion” about which Maxwell complains was elicited by the defense attorney. It is a well-settled appellate rule that one cannot complain about a ruling of the trial court which the party’s own trial tactics or conduct procured or aided in causing. Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997).

Judgment affirmed.

McMurray, R J, and Blackburn, J, concur.


text:
    A98A1462.
    SUTTON v. WINN DIXIE STORES, INC.
    (504 SE2d 245)
   Eldridge, Judge.

On Sunday, October 30,1994, at about 12:15 p.m., Laura Sutton, plaintiff, went to the Winn Dixie Stores, Inc. (“Winn Dixie”) in Rex to shop. Rain had begun the previous night and continued heavily through the next day. The plaintiff was able to park within six spaces from the store entrance. Plaintiff came to the store under an umbrella, which she folded up and placed in her shoulder bag prior to entering. The entrance door to the store was to the side of the front, creating an entrance area to the store. The entrance faced the grocery carts.

The electric door was caught in the rug/mat inside the entrance, opening only about 20 inches, and the plaintiff had to push the door open to enter, which may have caused a distraction. The rug/mat was a commercial rubber-backed mat. When plaintiff stepped off the rug/ mat, she suddenly fell.

When she fell, plaintiff came down on her knees. Plaintiff was looking straight ahead at the grocery carts when she fell. The manager, Mr. Shirley, came to help, and an employee then said in the manager’s presence that “if this floor had been mopped or kept mopped this wouldn’t happen.”

When the plaintiff got up from the floor, her pants were soaking wet. The floor was tile. There was a yellow caution sign near where plaintiff fell but to the side of the entrance, about three feet away, just past the end of the floor mat inside the front entrance; the sign said, “caution floor wet.” The sign was off to the side of the entrance off the mat so that plaintiff did not see it until after her fall. Since her fall, Winn Dixie changed the entrance and has indoor-outdoor carpet at the entrance now. There was no evidence from either the plaintiff or Mr. Shirley that there was water visible on the floor; even after plaintiff fell, she could not see anything on the floor.

Plaintiff contended that had Winn Dixie mopped up the moisture, she would not have fallen.

Mr. Shirley testified by affidavit that it was raining heavily and that he had a safety mat positioned in front of the entrance and placed a wet floor sign inside the entrance just past the end of the floor mat. He had various clerks regularly inspect and dry mop the entrance floor about every five minutes. Mr. Shirley did not see the plaintiff fall but saw her on the floor near the safety mat between the front entrance and the shopping carts.

Plaintiff filed suit. Winn Dixie answered. Winn Dixie then filed a motion for summary judgment based upon the plaintiff’s deposition and Mr. Shirley’s affidavit. The trial court granted the motion. Plaintiff filed her notice of appeal. Held:

The plaintiff’s enumeration of error is that the trial court erred in granting summary judgment. We agree.

The testimony of the Winn Dixie manager shows that it had actual knowledge of the dangerous condition from the prolonged heavy rain, because he ordered the placement of a safety mat at the entrance, ordered employees to dry mop the area about every five minutes, and placed a warning sign out. Thus, the first prong of Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980), actual knowledge by the owner/occupier, was satisfied.

There is no duty on the part of the owner/occupier to mop continuously during the course of a rainy occasion to keep the floor free from water that may be tracked in. There is no duty on the part of the proprietor to warn those who enter his store or place of business during a rainy occasion that there may be accumulations of water on the floor which have been tracked in or that the presence of the water may cause the floor to be slippery. Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 176-177 (2), 178-179 (3) (138 SE2d 77) (1964). However, when an owner/occupier undertakes to perform a duty, whether voluntarily or as mandated under OCGA § 51-3-1, reasonable care must be exercised to make the premises safe through such acts. See Blossman Gas Co. v. Williams, 189 Ga. App. 195, 197 (1) (375 SE2d 117) (1988); Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 837 (331 SE2d 899) (1985); Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 524 (317 SE2d 853) (1984); see also Huggins v. Aetna Cas. &c. Co., 245 Ga. 248, 249 (264 SE2d 191) (1980); Mull v. Aetna Cas. &c. Co., 226 Ga. 462, 464 (4) (175 SE2d 552) (1970). Here, Winn Dixie voluntarily sought to mop every five minutes, to put out a safety mat, and to warn of the wet floor when they were under no duty to do so. Therefore, Winn Dixie voluntarily undertook to do more than the law mandated, because it realized that the heavy rain, in fact, created a danger for its customers that might keep them from doing business with Winn Dixie if they felt at risk in the store.

Having voluntarily undertaken an additional or greater duty, Winn Dixie had a duty to perform such assumed duty with ordinary care. Thus, the placement and number of warning signs, the frequency of mopping, whether the mopping was properly performed, the placement of the mat, the saturated condition of the mat, and whether indoor-outdoor carpet should have been used prior to the fall to provide water retention and slip resistance all were factual issues of negligence. Likewise, whether subsequent remedial measures in changing the entrance and putting down indoor-outdoor carpet that would retain water and be slip resistant was a factual issue of feasibility of prevention prior to the fall.

It may be common knowledge that rainwater will normally be present inside a store during rainy weather which would provide equal constructive knowledge to the invitee and to the owner/occupier alike; however, most of the case law deals with constructive knowledge of the owner/occupier and not with actual knowledge on the part of the owner/occupier, as in this case, where actual measures to abate the danger were attempted. Alterman Foods, supra; Layne v. Food Giant, 186 Ga. App. 71 (366 SE2d 402) (1988); Brownlow v. Six Flags Over Georgia, 172 Ga. App. 242 (322 SE2d 548) (1984); Gibson v. Consolidated Credit Corp., supra. However, Winn Dixie had superior knowledge based upon its actual knowledge of the continuous hard rain and its appreciation of the danger which caused it to take preventive measures to remove the existing danger, to reduce the potential future danger, and to warn of the risk.' See Keaton v. A. B. C. Drug Co., 266 Ga. 385, 387 (2) (467 SE2d 558) (1996).

Just after plaintiff fell and in the presence of Mr. Shirley, an employee made the statement as an excited utterance “if this floor had been mopped or kept mopped this wouldn’t happen.” The identity and location of the employee are unknown, and plaintiff repeated such hearsay. However, such statement comes within the res gestae exception to the hearsay rule. See OCGA § 24-3-3; Quiktrip Corp. v. Childs, 220 Ga. App. 463 (469 SE2d 763) (1996); Brown v. Piggly Wiggly Southern, 210 Ga. App. 459 (436 SE2d 513) (1993); T. G. & Y. Stores Co. v. Waters, 175 Ga. App. 884 (334 SE2d 910) (1985); A Child’s World v. Lane, 171 Ga. App. 438 (319 SE2d 898) (1984). This was not an admission by an agent, because the mere employee had no authority to bind Winn Dixie by his statement as did Mr. Shirley, as store manager. See OCGA § 24-3-33; Sarantis v. Kroger Co., 201 Ga. App. 552, 553 (411 SE2d 758) (1991); Brooks v. Kroger Co., 194 Ga. App. 215 (390 SE2d 280) (1990). However, Mr. Shirley had such authority to make an admission against interest of Winn Dixie during the res gestae of the slip-and-fall. See OCGA §§ 10-6-64; 24-3-33; Brooks v. Kroger Co., supra at 216. Although Mr. Shirley made no verbal admission, the employee made a statement against the interest of Winn Dixie in his presence which he did not deny, limit, or correct. “Acquiescence or silence, when the circumstances require an answer, a denial, or other conduct, may amount to an admission.” OCGA § 24-3-36; Small v. Williams, 87 Ga. 681 (13 SE 589) (1891); St. Mary’s Hosp. v. Cohen, 216 Ga. App. 761 (456 SE2d 79) (1995); Cheek v. J. Allen Couch & Son Funeral Home, 125 Ga. App. 438 (187 SE2d 907) (1972). Thus, such statement amounts not only to a res gestae statement but may also be an admission against Winn Dixie’s interest.

Subsequent remedial measures generally are inadmissible in negligence actions. However, “[s]uch evidence may also be admitted where the feasibility of repair or modification is an issue. [Cits.]” Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 78 (4) (460 SE2d 532) (1995); Wittenberg v. 450 Capitol Assoc., 207 Ga. App. 260, 262 (427 SE2d 547) (1993); Moody v. Southland Investment Corp., 126 Ga. App. 225, 234-235 (2) (190 SE2d 578) (1972). In this case, plaintiff testified as to the subsequent remedial measures in changing the entrance and in installing indoor-outdoor carpet at the entrance. Such evidence creates a fact question as to negligence on the present state of the record.

Mr. Shirley stated that, on later investigation, he had been told that an employee had inspected and mopped the floor five minutes prior to the fall. Such statement was inadmissible as hearsay and had no probative value and cannot be considered in summary judgment proceedings. Hassell v. First Nat. Bank of Newton County, 218 Ga. App. 231, 234 (2) (461 SE2d 245) (1995); Sarantis v. Kroger Co., supra at 553.

Some cases show that when owner/occupiers feel that they should do more to protect their customers and also undertake to put out warnings and to mop up rainwater, such measures demonstrate the exercise of ordinary care to avoid the risk to customers, and under such facts, show that the owner/occupier exercised ordinary care under the circumstances. However, those cases differ factually from this case. For example, in Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 45 (332 SE2d 304) (1985), the plaintiff testified that the floor was damp immediately after an employee had finished mopping up rain, but such mopping was found to have constituted the exercise of ordinary care. In this case, plaintiff’s pants were soaked from water on the floor that was not visible, and there was no competent evidence as to when the floor had been mopped last, although it was to have been inspected and mopped every five minutes by order of the manager as a result of the heavy rain; there also was the admission and statement by the employee, as well as evidence of remedial action. In Adams v. Winn-Dixie Stores, 192 Ga. App. 892 (386 SE2d 686) (1989), the store manager testified that he had checked the floor shortly before the plaintiff’s fall and had mopped the floor to minimize the accumulated rainwater; the plaintiff did not see the water, which was deep enough to form a puddle. In Alterman Foods v. Munford, 178 Ga. App. 214, 215 (342 SE2d 480) (1986), a warning sign had been placed directly in front of the door by a bag boy who regularly mopped the floor. However, in this case, the sign was placed off to the side of the entrance where plaintiff did not see the sign, and it is not known when the floor was mopped last. In Alterman Foods v. Munford, supra, after a second prong analysis of Alterman Foods v. Ligón, this Court found that the plaintiff had not exercised ordinary care. This case is factually more like Rodriguez v. Piggly Wiggly Southern, 185 Ga. App. 79, 80 (363 SE2d 291) (1987) where the puddle accumulated, no one mopped, and no one knew about the collected rainwater, although the presence of a mop and bucket next to the door gave rise to constructive knowledge. Further, the safety mat was missing in that case, unlike this case.

Here, plaintiff was aware only that it was raining. There was no visible rainwater standing on the floor of the store. The single sign was not opposite the entrance but off to the side where the plaintiff did not see it. Thus, Winn Dixie had actual knowledge for many hours and mopped up the heavy rain about every five minutes, which is contrasted with the mere constructive knowledge of the plaintiff for mere minutes. See Keaton v. A. B. C. Drug Co., supra at 387-388.

Under Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), the Supreme Court held: “[fjinally, we reaffirm that, in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Id. at 748-749. The superior knowledge cases and the constructive knowledge cases of rainwater on the floor all come within the holding of Robinson, because they all turn on the second prong of Alterman, plaintiff’s knowledge of the danger and the exercise of ordinary care by the plaintiff regarding such knowledge. See Adams v. Winn Dixie Stores, supra at 893; Colbert v. Piggly Wiggly Southern, supra at 47; Alterman Foods v. Munford, supra at 215; Gibson v. Consolidated Credit Corp., supra at 180. ‘Where a defendant had no actual or constructive knowledge of the hazard, summary judgment in favor of the defendant was appropriate since the plaintiff could not establish that the defendant had knowledge of the hazard superior to that of the invitee. [Cits.]” Robinson, supra at 737.

“In sum, we remind members of the judiciary that the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Robinson, supra at 748.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.

Decided July 2, 1998

Reconsideration denied July 15, 1998.

Margot S. Roberts, for appellant.

Fain, Major & Wiley, Gene A. Major, Darryl G. Haynes, for appellee.


author: Pope, Presiding Judge. Eldridge, Judge, Ruffin, Judge,

text:
    A98A0379.
    BURTON v. THE STATE.
    (504 SE2d 279)
   Pope, Presiding Judge.

Defendant Quathro Burton was convicted following a jury trial of the offense of burglary. His motion for new trial was denied, and he filed the present appeal to this Court.

1. Defendant’s first enumeration of error, in which he challenges the sufficiency of the evidence to support his conviction, is without merit.

2. Defendant also argues the State failed to show a race neutral reason for striking an African American prospective juror.

“Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834) (1995) requires the trial court to establish, on the record, that it has applied a three-part test to a party’s claim of discrimination in the use of peremptory strikes. First, the party challenging a strike has the burden of making a prima facie showing of discrimination. The proponent of the strike must then produce an explanation for the strike which is race-neutral and non-discriminatory on its face, but ‘is not required to enunciate “an explanation that is persuasive, or even plausible.” ’ The burden of proving that the proffered explanation is merely pretext for discrimination then shifts back to the challenging party.” (Citations omitted.) O’Neal v. State, 226 Ga. App. 224-225 (482 SE2d 478) (1997).

In this case the State volunteered its reason for striking the juror; thus whether the defendant established a prima facie case of discrimination is moot. See, e.g., Chunn v. State, 210 Ga. App. 209, 210 (2) (435 SE2d 728) (1993).

The record shows that the reason the State offered for striking the juror was that she was a member of a particular church. No other juror claimed membership in the church. The prosecutor stated on the record: “Ms. Collins says she goes to Hill Chapel Church. Hill Chapel is one of the churches that were organizing protests about the way the police and the DA’s Office were handling the Edward Wright shooting. I don’t want anybody that goes to a church that thinks it’s their business how the police and the DA’s office conduct their business to the extent that they’ll organize a protest about it on the jury. That’s a religious organization, but yet, they will protest the way the police are doing their jobs. I don’t want anybody on the jury that is a member of that church.” “I don’t care if it’s a white church, a black church, or a Hispanic church or an Asian church, I don’t want anybody who goes to a church that organizes political protests on my jury.”

After the State proffered its reason, and the trial court accepted it as race-neutral, the defendant, as the opponent of the strike, was required to show that the State’s strikes were racially motivated. The trial court specifically found that the defendant failed to carry this burden. “[Tjhe ultimate burden of persuasion about the racial motivation rests with and never leaves the opponent of the strike.” Holt v. Scott, 226 Ga. App. 812, 816 (487 SE2d 657) (1997).

Defendant argues, however, that the trial court erred in finding race-neutral the State’s reason for striking the prospective juror. “[Cjoncern that a prospective juror is hostile to the State or that a juror wall not seriously consider the State’s evidence are neutral reasons for a strike.” Jones v. State, 226 Ga. App. 428, 430 (1) (487 SE2d 62) (1997). Defendant asserts that the State should have further questioned the juror to ascertain whether she had participated in the demonstrations or what her feelings were about the prosecution. But it was the defendant’s and not the State’s burden to show discriminatory intent, once the State gave its race neutral reason for striking the juror. See Turner v. State, 267 Ga. 149, 153 (476 SE2d 252) (1996). “ A trial court’s determination of a Batson challenge rests largely upon assessment of the attorney’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.’ (Citations and punctuation omitted.) Holt v. Scott, 226 Ga. App. 812, 816 (487 SE2d 657) (1997).” Johnson v. State, 231 Ga. App. 114, 117 (497 SE2d 666) (1998). “[Cjonsidering the totality of the circumstances, including the racial composition of the trial jury ... we cannot conclude that the trial court’s Batson ruling was clearly erroneous.” Barnes v. State, 269 Ga. 345, 350-351 (496 SE2d 674) (1998).

Judgment affirmed.

Andrews, C. J., and Blackburn, J., concur. Eldridge, J., concurs specially. McMurray, P. J., Beasley and Ruffin, JJ, dissent.

Eldridge, Judge,

concurring specially.

I concur only in the judgment of the majority.

Respectfully, I cannot agree with my appellate colleagues’ Bat-son analysis which, to me, has had the result of vitiating Batson/ McCollum challenges in this State.

1. Under the majority’s analysis, the Batson test is now, in effect, a four-step inquiry: (1) A prima facie showing; (2) a facially race-neutral explanation; (3) an independent requirement that the opponent of the strike prove that the otherwise race-neutral explanation is not really neutral (i.e., proving a negative); and then, (4) the trial court’s decision based upon whether the opponent proved the race-neutral reason was not really neutral.

Under this model, a trial court commits reversible error if it “collapses the steps” by deciding too soon that an otherwise race-neutral reason is or is not neutral before the opponent of the strike “proves” it to the court. See, e.g., Smith v. State, 232 Ga. App. 458 (501 SE2d 622) (1998); Gilbert v. State, 226 Ga. App. 230 (486 SE2d 48) (1997). However, a review of the decisions of other states shows that Georgia is alone in such interpretation; no other states have reversed based upon a “premature” evaluation of step three. See particularly People v. Payne, 666 NE2d 542, 550 (N.Y. 1996). Such review shows that while other states recognize that the “burden of persuasion never leaves the opponent of the strike” pursuant to Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834) (1995), that language does not translate into an inquiry independent of steps one and two, but is simply part and parcel of the trial court’s step-three evaluation “in light of all relevant circumstances,” including the persuasiveness of otherwise race-neutral strikes. Bruner v. Cawthon, 681 S2d 161, 171 (Ala. 1995).

Further, in this State, in departure from all other states, we will reverse on appellate review if we decide that the opponent of the strike did not sufficiently meet his burden to prove that an otherwise facially race-neutral explanation was not really neutral — even if we recognize the trial court’s basis for deciding contrary to our perceptions. See Malone v. State, 225 Ga. App. 315, 317 (484 SE2d 6) (1997) and Smith v. State, supra, reversing the trial court although “it is fairly easy to understand why the trial court found some of the reasons given for the peremptory strikes to be unpersuasive.”

To my mind, it is extremely important to realize that the great majority of states have struggled in the “aftermath” of Purkett. See, e.g., Maddox v. State, 708 S2d 220, 230 (Ala. 1997) (Long, P. J., concurring). The exasperation level is such that some states have simply refused to follow Purkett, finding that opinion “a digression” from prior federal decisions and relying instead on Batson protections under state constitutional grounds. See, e.g., People v. Jamison, 50 Cal.Rptr.2d 679, 686 (Cal. 1996). However, the majority of states have interpreted the Purkett decision as affirming that the “primary determination of whether the [striker] acted with unlawful purpose during jury selection [is] in the hands of the trial judge,” thereby keeping Batson/McCollum challenges viable in their respective states. (Emphasis supplied.) State v. Vargas, 926 P2d 223, 227 (Kan. 1996). Yet, Georgia, apparently alone, has used the Purkett decision to develop a model for Batson/McCollum appellate inquiry that appears to me so unclear in its application and results in such routine reversal of the trial courts that, in my view, it seems safe to assume that fear of reversal has become a primary motivating factor in most trial court’s step-three determinations, thereby rendering Batson/McCollum challenges useless in this State.

Certainly neither Purkett, Batson, McCollum, nor any other United States Supreme Court case provides a legal basis for such appellate control. Indeed, it is hard to imagine how the Supreme Court could have advised against such micro-management any more strongly than it did in Purkett when reversing the Eighth Circuit Court of Appeals for refusing to give deference to the trial courts’ step-three credibility determination. And it appears to me that Georgia, especially, cannot afford to permit the de facto disappearance of Batson in light of the evils that decision was designed to address. I urge — again — that the model be changed in Georgia so as to give viability to challenges made under Batson/McCollum.

In reality, under Purkett as interpreted by the majority of states, determining whether “the opponent of the strike met its burden of proving discriminatory intent,” is the third step and does not require proof independent from steps one and two. As recognized by the majority of states, the trial court’s step-three determination is based upon “a variety of factors” as articulated by the United States Supreme Court. State v. Brooks, 960 SW2d 479 (Mo. banc 1997). “At the third stage, it becomes the function of the trial court to assess the ‘genuineness’ of the [striker’s] explanation^] and the credibility of the [striker] in offering that explanation. It is at the third stage of the analysis, then, that the trial court might find that explanations provided by a prosecutor are pretextual. As the dissent in Purkett explains, Purkett stands for the proposition that ‘(a) trial court must accept (the) [race-]neutral explanation unless a separate “step three” inquiry leads to the conclusion that the peremptory challenge was racially motivated.’ ” (Citations omitted.) People v. Nunn, 652 NE2d 1146, 1150 (Ill. App. 1 Dist. 1995). Accordingly, the third step cannot be “collapsed” into the second step by the trial court', such “collapse” occurs only in the appellate arena when the appeals court “prematurely” evaluates the striker’s step-two explanations (as did the Eighth Circuit Court of Appeals in Purkett), rather than deferring to the step-three determination of the trial court as to the explanations.

2. Keeping these principles in mind in this case, the reason articulated by the State for striking Ms. Collins was race-neutral. Further, the prosecutor’s race-neutral explanation was clear, certain, and drew on his own and the trial court’s knowledge of the community in relation to the specific facts the juror provided on voir dire. Such is completely permissible and provided a sufficient basis for the trial court to overrule the defense’s Batson motion. Hernandez v. New York, 500 U. S. 352, 365 (111 SC 1859, 114 LE2d 395) (1991).

Moreover, the Supreme Court’s decision in Walton v. State, 267 Ga. 713 (482 SE2d 330) (1997), upon which the dissent relies for a contrary result, does not support the dissent’s position.

In Walton, the Supreme Court reversed because the juror on voir dire did not supply the “connection” that she was related to defense attorney, C. B. King. The juror stated only that she was related to “a defense attorney.” The juror’s relationship with King was supplied later by the D.A.; yet, it was this connection/relationship with King that the D.A. offered as his basis for striking the juror. Thus, whether such relationship/connection in fact existed was not on the record from the juror’s own statement so as to support the prosecutor’s strike. The Supreme Court did not reverse in Walton because the record failed to provide a factual basis to support the prosecutor’s antipathy toward King. After all, a striker’s reasons may be “silly or superstitious.” Purkett, supra. The Court reversed in Walton because the juror’s connection to King was not established factually so as to support striking her based on that connection.

Here, however, the juror on voir dire provided her connection/ relationship to the specific church, Hill Chapel Church, which connection the D.A. stated was his basis for striking her. Thus, the relationship/connection is on the record from the juror’s own statement so as to support the prosecutor’s strike. Under Walton, the factual basis for the prosecutor’s reluctance to put a member of Hill Chapel on the jury need not be on the record for our consideration on appellate review. Again, a striker’s reasons may be silly or superstitious; it is the trial court’s evaluation thereof that controls based upon a myriad of factors, including knowledge of the community. Id. Under Walton, what needs to be on the record is the factual connection between Hill Chapel and the juror so as to support striking her based on that connection. It is on the record in this case, and thus Walton is inapplicable.

Here, the State had no burden beyond articulating a reason for striking Ms. Collins which was race-neutral and, to the trial court, clear and reasonably specific. The trial court found that the State did so in this case. Burton has not shown that the trial court’s credibility determination was clearly erroneous. Accordingly, I concur in the majority’s judgment affirming Burton’s conviction.

Ruffin, Judge,

dissenting.

The prosecutor based his peremptory challenge of Ms. Collins on her membership in a church whose members protested the way the police were doing their jobs. The trial court found the reason race neutral and ultimately concluded that Burton failed to meet his burden of showing purposeful discrimination. Upon considering the matter with great deference to the trial court’s decision, the majority concluded that the decision was not clearly erroneous. Notwithstanding the apparent racial neutrality of the proffered reason, and also with great deference to the trial court, I disagree with the majority that the record supports the court’s ultimate conclusion that Burton failed to meet his burden. Accordingly, for reasons which follow, I dissent from the majority’s opinion and conclude that Burton is entitled to a new trial.

Although I do not disagree with the majority’s rendition of what occurred during voir dire, I note that the only question and response concerning Ms. Collins, the church, the activities of its members and her association with the church is as follows: “[ASSISTANT DISTRICT ATTORNEY]: Are you a member of any social or religious organizations? MS. COLLINS: Yes, I belong to Hill Chapel Baptist Church.” Based solely on this response, the Assistant District Attorney struck Ms. Collins. He explained to the court: “Ms. Collins says she goes to Hill Chapel Church. Hill Chapel is one of the churches that were organizing protests about the way the police and the DA’s Office were handling the Edward Wright shooting. I don’t want anybody that goes to a church that thinks it’s their business how the police and the DA’s office conduct their business to the extent that they’ll organize a protest about it on the jury. That’s a religious organization, but, yet, they will protest the way the police are doing their jobs. I don’t want anybody on the jury that’s a member of that church [sic].”

Although in past decisions we have focused primarily on whether a trial judge is authorized to accept a reason as race neutral, we must remain cognizant of the additional requirements that the reason be case-related, clear and reasonably specific. See Greene v. State, 266 Ga. 439, 442 (5) (469 SE2d 129) (1996), rev’d on other grounds, 519 U. S. 145 (117 SC 578, 136 LE2d 507) (1996); Walton v. State, 267 Ga. 713, 718 (5) (482 SE2d 330) (1997). And, of equal importance, we must keep in mind that a proffered reason can meet these requirements only if it is supported by the record. See id. at 719.

In Walton, the State struck a potential African American juror upon finding that she “ ‘made the statement that she felt like there was a dual system of justice . . . against black people who are tried by the courts in this country. . . .’” Id. at 718. The Assistant District Attorney also recalled that the potential juror was either acquainted with or had a cousin who was acquainted with a local attorney whom the Assistant District Attorney characterized as a litigator who usually made race a prominent defense in his cases. Based on the juror’s purported statement and acquaintance with the attorney, the Assistant District Attorney concluded that the juror “ ‘might, if on this jury, try to even up for past wrongs and straighten the system out by letting these defendants go. . . .’” Id. at 719. In response to questioning by the court, the Assistant District Attorney explained that “he was not striking the woman on account of her race, but ‘because of [the attorney she knew] and his appeals.’ ” Id. Based on these reasons, the trial court overruled the defendant’s Batson challenge.

On appeal, the Supreme Court found that the proffered reason “cannot fairly be said to be ‘case-related, clear and reasonably specific,’ [cit.], because it is not supported by the record. All the venireperson said was that she had a cousin in Georgia who was a lawyer. The rest of the lawyer’s connections were supplied by counsel for the State and the defense.” Id. As for the juror’s belief in a dual system of justice, the Court found that this also was supplied by counsel and not supported by the juror’s responses during voir dire. Id. Under these circumstances, the Court concluded that “neither of the reasons given for striking that particular venireperson meet[s] the requirement in Greene, supra, that they be ‘race-neutral, case-related, clear and reasonably specific.’ ” Id. at 720.

The reason proffered by the State in this case suffers from the same infirmity as those addressed in Walton; they are simply not supported by the record. See id. Rather, like the reasons advanced in Walton, they depend exclusively on information supplied by counsel for the State. See id. All Ms. Collins said was that she belonged to Hill Chapel Baptist Church. There was no evidence concerning the extent of her relationship with the church, including whether she actively participated in church activities. Furthermore, although one might reasonably infer'that she believed in the fundamental religious tenets of the church, there is no evidence that the juror even knew of the purported protests, much less that she attended them or subscribed to the political beliefs of the protesting church members. Of similar concern, there was no evidence establishing whether a majority of the church members protested or whether only a small faction of congregants held the belief and participated in the protest.

Decided July 15, 1998

Thurmond, Mathis & Patrick, Adrian L. Patrick, for appellant.

Harry N. Gordon, District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.

More is required of a party justifying a peremptory strike than was exhibited by the State in this case. In light of the State’s purported concerns with Ms. Collins’ response that she “belonged” to the church, it is disconcerting that “the prosecutor failed meaningfully to question [her] to elicit answers that might support his suspicions or provide some objective basis for excusal rather than mere speculation.” Ford v. State, 262 Ga. 558, 560 (3), n. 2 (423 SE2d 245) (1992). In light of the fact that the prosecutor merely ascribed to the potential juror political beliefs supporting his strike without any evidence that she actually held those beliefs, I believe the trial court clearly erred in overruling Burton’s Batson challenge. Consequently, Burton is entitled to a new trial. See Walton, supra.

I am authorized to state that McMurray, R J., and Beasley, J., join in this dissent.

       See, e.g., State v. Vargas, 926 P2d 223, 227 (Kan. 1996); Riley v. Commonwealth, 464 SE2d 508, 510 (Va. App. 1995); State v. Best, 467 SE2d 45, 51 (N.C. 1996); State v. Murray, 906 P2d 542, 557 (Ariz. 1995); People v. Nunn, 652 NE2d 1146 (Ill. App. 1 Dist. 1995); Palmer v. State, 654 NE2d 844 (Ind. App. 1995); People v. Hope, 658 NE2d 391 (Ill. 1995); Thorpe v. State, 689 NE2d 441 (Ind. 1997); State v. Robinson, 662 A2d 1295 (Conn. App. 1995); State v. Gaitan, 536 NW2d 11 (Minn. 1995).

       See, e.g., Jackson v. State, 265 Ga. 897 (463 SE2d 699) (1995); Turner v. State, 267 Ga. 149 (476 SE2d 252) (1996); Chandler v. State, 266 Ga. 509 (467 SE2d 562) (1996); Pickett v. State, 226 Ga. App. 743 (487 SE2d 653) (1997); O’Neal v. State, 226 Ga. App. 224 (482 SE2d 478) (1997); McKenzie v. State, 227 Ga. App. 778 (490 SE2d 522) (1997); Gilbert v. State, supra; Smith v. State, supra.

       For example, the trial court’s disbelief of the explanations, together with elements of the prima facie case; the trial court’s knowledge of the community in relation to the explanations offered; or the trial court’s knowledge of the one utilizing the strike in relation to the explanations offered. See St. Mary’s Honor Center v. Hicks, 509 U. S. 502 (113 SC 2742, 125 LE2d 407) (1993); Hernandez v. New York, 500 U. S. 352, 365 (111 SC 1859, 114 LE2d 395) (1991); Hairston v. Gainesville Sun Publishing Co., 9 F3d 913, 914 (11th Cir. 1994).

       The other reason the prosecutor gave for striking the juror, i.e., hostile views regarding a “dual system of justice,” was not merely “unsupported” by the record as opined by the dissent; in fact, the record contradicted the prosecutor’s reason because it showed that “the venireperson specifically disclaimed that position for herself.” Walton, supra at 719.