text:
    A95A2413.
    GARREN v. THE STATE.
    (467 SE2d 365)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of seven counts of child molestation (Counts 3, 4, 6, 7, 8, 14 and 15), four counts of aggravated child molestation (Counts 1, 2, 11 and 13), two counts of incest (Counts 9 and 10), and one count of aggravated sodomy (Count 12). The evidence adduced at trial reveals that defendant’s stepdaughter is the victim of all but the aggravated sodomy offense. Another child is the victim of the aggravated sodomy.

This appeal followed the denial of defendant’s motion for new trial. Held:

1. The trial court did not err in refusing to allow testimony regarding the results of defendant’s penile plethysmograph test. Gentry v. State, 213 Ga. App. 24, 25 (2) (443 SE2d 667).

2. Defendant contends the trial court erred in refusing to enforce his subpoena for the production of a file relating to an investigation conducted by the Department of Family & Children Services (“DFACS”). Defendant asserts that the DFACS file includes statements that may have been helpful during cross-examination of the State’s key witness, his stepdaughter. This contention is without merit.

Although defendant had an opportunity to review the entire DFACS file earlier in the proceedings, he failed to proffer any specific inconsistency which may have cast doubt upon the reliability of his stepdaughter’s testimony. See Gibby v. State, 213 Ga. App. 20, 23 (4) (443 SE2d 852).

3. Defendant did not object when the trial court excused all but essential personnel from the courtroom during his stepdaughter’s testimony. As a result, there is no basis to support his claim that the trial court violated his constitutional right to a public trial. “[Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. See Henderson v. State, 203 Ga. App. [733, 735 (3) (417 SE2d 413)].” Freeman v. State, 208 Ga. App. 503, 505 (4) (430 SE2d 867).

4. Defendant contends the trial court erred in admitting evidence of a note (State’s Exhibit 13) and a letter (State’s Exhibit 14) prepared by the victim, wherein the child documents sexual abuse she was forced to endure.

The record provides no basis for challenging the admission of State’s Exhibit 14 as defendant did not complain when the exhibit was offered into evidence at trial. Freeman v. State, 208 Ga. App. 503, 505 (4), supra. And given that State’s Exhibits 13 and 14 include similar reports of sexual abuse and that State’s Exhibit 14 was before the jury without objection, “applying the standard for harmless error set forth in Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976), we find it highly probable that [any] error [in admitting State’s Exhibit 13] did not contribute to the judgment of conviction. See Hendrix v. State, 202 Ga. App. 54, 55 (3) (413 SE2d 232) (1991).” Parrott v. State, 206 Ga. App. 829, 835 (5) (c) (427 SE2d 276).

5. Next, defendant contends “[t]he trial court gave an erroneous and confusing charge related to Counts XI, XII, XIII, and XV.”

The portion of the charge defendant challenges follows the trial court’s reading of the crimes charged in the multi-count indictment and provides as follows: “Now, ladies and gentlemen, I charge you that as to counts — I believe it’s 12, 13, 14 and 15 as well as Count 11 are interrelated by the language placed in those charges in this indictment. And you have to refer from one to the other to understand the indictment in its entirety. And I call your attention also to the fact that I previously charged you that the counts that I told you about — and I read those counts and charged you here in this charge — some of them the State must prove an additional element which is not necessary in the others and that’s the additional element as to the exact time of day or day in which the matter occurred. That’s not true of all the charges, but it’s true as to the Court has instructed you which ones — in which ones it is true and which ones it is not true.”

Decided February 1, 1996.

J. Converse Bright, for appellant.

C. Paul Bowden, District Attorney, Gary C. McCorvey, Assistant District Attorney, for appellee.

Although the above-quoted excerpt from the trial court’s charge to the jury may appear confusing, it is not erroneous and provides no basis for reversal. Further, the segment is understandable when read in conjunction with the preceding instructions regarding the similar (but separate) charges of the multi-count indictment. “ ‘The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same.’ (Citations and punctuation omitted.) Hill v. State, 205 Ga. App. 475, 476-477 (422 SE2d 564) (1992).” Fuller v. State, 211 Ga. App. 104, 105 (5) (438 SE2d 183). As a whole and in context of the trial court’s entire charge, we find that the above-quoted segment of the trial court’s charge to the jury is not misleading or confusing.

6. Finally, defendant contends the trial court erred in charging the jury as follows: “On the other hand, if you believe from the entire evidence that the defendant is guilty beyond a reasonable doubt, it would be your duty and you would be authorized to convict.” Although this instruction has been criticized, it does not constitute reversible error. Sutton v. State, 262 Ga. 181 (2) (415 SE2d 627). “Considered in the context of the charge as a whole, the single objectionable phrase did not misdirect the jury concerning their lawful obligations. Accord Caldwell v. State, 263 Ga. 560 (7) (436 SE2d 488) (1993).” Lemay v. State, 264 Ga. 263, 266 (4) (443 SE2d 274).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A95A2154.
    BILLINGSLEY v. THE STATE.
    (467 SE2d 377)
   Ruffin, Judge.

A jury convicted Eric Billingsley of possession of cocaine, and the court sentenced him as a recidivist to 30 years. Billingsley appeals, enumerating as error the court’s charge to the jury and his sentence. We affirm.

Viewed in a light to support the verdict, the evidence at trial showed that two plainclothes police officers were patrolling a known drug area in an unmarked car when one of the officers saw Billingsley standing beside a car stopped in the middle of the street. While the officers were waiting for the car to move, they saw Billingsley walk to the side of the street, bend down, reach into leaves on the ground, and pick up what appeared to be crack cocaine. Billingsley returned to the car and handed the driver the suspected cocaine in exchange for money, after which the man drove away. Because the officers were concerned about approaching Billingsley in plainclothes and in an unmarked car, they drove away and called for a marked police car to meet them. One of the plainclothes officers joined the uniformed officer in the marked car and returned to where Billingsley was standing. The officer exited the marked car and told Billingsley to approach them and put his hands on the police car. As Billingsley walked toward the officer, he dropped what appeared to be, and was later identified as, crack cocaine.

1. Billingsley asserts that the trial court erred by failing to charge the jury on the offense of abandonment. We disagree.

“ ‘The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.’ . . . [Cit.]” Simpson v. State, 213 Ga. App. 143, 144-145 (1) (444 SE2d 115) (1994). A person commits the offense of abandonment when he or she “abandon [s], in a public place, any dangerous drug, poison, or controlled substance. . . .” OCGA § 16-13-3. We have previously ruled that the offense of abandonment is not a lesser included offense of possession but rather a separate offense. Recoba v. State, 179 Ga. App. 31 (2) (345 SE2d 81) (1986). Whether possession of the cocaine was actual or constructive does not matter, “[t]he two crimes occurred at different times and involved statutes that have differing behavioral postulates. Although occurring sequentially, one after the other, each of the transactions would constitute a separate offense since each would be established by proof of differing facts.” (Citations and punctuation omitted.) Id. at 32. While it is possible that under the evidence Billingsley committed the separate act of abandonment, that would not “have any mitigating effect on [his] potential criminal culpability of the previous act of possessing [the cocaine].” Id.

“It follows that the trial court did not err in refusing any of [Billingsley’s] requests to charge in connection with the entirely separate crime of abandonment as defined in OCGA § 16-13-3.” Id. Where, as in this case, “ ‘the defendant is charged by a narrowly drawn indictment with a specific crime it is not within the power of the judge or the jury to interpret the facts as presented at trial to support an alternative, separate offense. . . . (Cit.)’ [Cit.]” Id.

2. Billingsley asserts that the trial court erred in charging the jury on constructive possession. We note initially that Billingsley requested two jury charges on constructive possession, requests which could have induced the trial court to give the charge of which he complained. Such requests to charge would preclude a finding of error now because “[o]n appeal, one cannot complain of a judgment, order, ruling, or charge that his own procedure or conduct aided in causing. . . . [Cits.]” Wright v. State, 199 Ga. App. 718, 719 (2) (405 SE2d 757) (1991).

Additionally, there was sufficient evidence to support the court’s charge. Contrary to Billingsley’s contention that there was only evidence presented of actual possession, one of the officers testified that he observed Billingsley retrieve cocaine from a pile of leaves on the side of the street and drop cocaine as he walked toward the officers. Although Billingsley was not in actual possession of the cocaine, in each instance the evidence was sufficient to support a charge that he knowingly had both the power and intention to exercise authority or control over the cocaine. See id. at 720; Simpson, supra at 145-146. Accordingly, the trial court did not err in giving the charge.

3. In his final enumeration of error, Billingsley asserts that the trial court erroneously admitted evidence of certain prior convictions for sentencing purposes even though the State failed to prove that the convictions were his. Two of the convictions showed that Billingsley was indicted and pled guilty under his real name. Two other convictions showed that Billingsley was indicted under a different name but either pled guilty or was sentenced under his real name. “Concordance of name alone is some evidence of identity. Further, in the absence of any denial by [Billingsley] and no proof to the contrary this concordance of name is sufficient to show that [Billingsley] and the individual previously convicted were the same person. Accordingly, this enumeration is without merit.” (Citations and punctuation omitted.) Mincey v. State, 186 Ga. App. 839, 841 (4) (368 SE2d 796) (1988).

Judgment affirmed.

Pope, P. J., concurs. Beasley, C. J., concurs in the judgment only.

Decided February 2, 1996.

Mark R. Pollard, for appellant.

Lewis R. Slaton, District Attorney, Leonora Grant, Cassandra J. Cook, Assistant District Attorneys, for appellee.


author: Beasley, Chief Judge.

text:
    A95A2367.
    WAGNER v. THE STATE.
    (467 SE2d 385)
   Beasley, Chief Judge.

Wagner appeals his conviction of possession and sale of cocaine (OCGA § 16-13-30). The narcotics division of the Richmond County Sheriff’s Department employed a confidential informant known as “Jeff” to introduce Deputy Tim Johnson, working undercover, to Wagner. Shortly thereafter, Wagner began procuring cocaine for Johnson. The transactions followed a predictable pattern: Johnson would approach Wagner, who would accompany him to a public telephone. Wagner would make a call, and Johnson would give money to Wagner. A drug dealer would drive to Wagner’s location; Wagner would then exchange the money for cocaine and deliver it to Johnson.

Wagner testified, without dispute, that although he was a cocaine addict, he had been off drugs for six to seven months and was trying to stay “clean” and start a new life. “Jeff,” whom he had known before, began hounding Wagner to find cocaine for him and “a friend” (Deputy Johnson) to purchase. “Jeff” told Wagner that “the friend” would give Wagner some of the cocaine for his efforts in procuring it for them. Wagner contends that in satisfying the persistent requests of Johnson for more cocaine, and Johnson in turn giving Wagner “a piece of it each time,” he became hopelessly dependent on the drug again. After six transactions, Wagner was arrested during a “buy-bust” and was subsequently charged and found guilty by a jury. The transactions were audio- and videotaped by the police except, according to Wagner, for the first two encounters with “Jeff.” “Jeff” was not a witness at trial.

Wagner admitted his involvement in the drug transactions but contends the evidence raised the issue of entrapment, which was his sole defense. He enumerates as error the trial court’s refusal to give a pattern jury instruction on entrapment.

Three distinct elements embody the entrapment defense under OCGA § 16-3-25: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. Keaton v. State, 253 Ga. 70, 72 (316 SE2d 452) (1984); Thomas v. State, 134 Ga. App. 18, 22 (213 SE2d 129) (1975). If a defendant presents a prima facie case of entrapment, the burden shifts to the State to disprove entrapment beyond a reasonable doubt as one of the elements of the crime that must be proven. Harpe v. State, 134 Ga. App. 493, 495 (214 SE2d 738) (1975); Hill v. State, 261 Ga. 377 (405 SE2d 258) (1991).

“ ‘(T)here is no entrapment where the officer merely furnishes an opportunity to a defendant who is ready to commit the offense.’ [Cits.]” Benefield v. State, 140 Ga. App. 727 (2) (232 SE2d 89) (1976). Repeated requests by an officer or agent for illegal drugs from one who is known to have possessed them do not raise the defense of entrapment, even if he at first denies having them or a willingness to sell them. Johnson v. State, 147 Ga. App. 92, 93 (1) (248 SE2d 168) (1978); Garrett v. State, 133 Ga. App. 564, 566 (3) (211 SE2d 584) (1974).

The focus of the entrapment defense is the intent or predisposition of the defendant to commit the crime. Johnson, supra at 93 (1). “ ‘Because the concept of entrapment involves the predisposition of the accused, the question, like all fact questions, is generally one for the jury to decide.’ [Cit.]” Tolbert v. State, 138 Ga. App. 724, 726 (1) (227 SE2d 416) (1976). Thus, evidence raising a defense of entrapment requires that the jury be charged as to the law of entrapment and the burden of proof thereon. State v. Royal, 247 Ga. 309, 310 (275 SE2d 646) (1981).

The facts in this case substantially track those in Sherman v. United States, 356 U. S. 369 (78 SC 819, 2 LE2d 848) (1958). Evidence at Sherman’s trial showed that drug sales to the government informer were brought about by the informer’s persistent solicitation in the face of obvious reluctance on the part of Sherman, whom the informer knew was undergoing treatment for addiction. The informer played on Sherman’s sympathy based on mutual experiences with addiction and suffering withdrawals. The United States Supreme Court wrote, “The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. ... To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal. ... [In this case,] one request [of Sherman] was not enough, for [the informer] tells us that additional ones were necessary to overcome, first, [Sherman’s] refusal, then his evasiveness, and then his hesitancy in order to achieve capitulation. [The informer] not only procured a source of narcotics but apparently also induced [Sherman] to return to the habit. Finally, assured of a catch, [the informer] informed the authorities so that they could close the net.” Id. at 372-373.

The State was on notice through its agent that Wagner was trying to maintain a lifestyle free of drugs. As an abstaining addict, he was vulnerable to enticement, and a jury should have been allowed to determine if the police used this information to exploit and entrap him. “[T]he theory of the entrapment defense ... is to deter government conduct that entices innocent persons to break the law.” Keaton v. State, 253 Ga. 70, 71 (316 SE2d 452) (1984).

The State cites portions of the taped conversations that indicate Wagner’s eagerness to take part in the drug deals and thus his predisposition to commit the criminal acts. The critical time was the point at which Wagner was initially contacted by the confidential informant when, according to Wagner, he was trying to overcome his drug addiction. He acknowledges that he readily and willingly took part in the drug transactions subsequent to resuming use after being offered cocaine by “Jeff” while upset over a domestic quarrel. However, “[i]f the ‘creative activity,’ [Sherman, supra at 372], of the law-enforcement official generates criminal acts that are ‘not independent acts subsequent to the inducement but part of a course of conduct which was the product of the inducement,’ id. at 374, those [subsequent] acts cannot be used to show predisposition.” Hill v. State, 261 Ga. 377 (405 SE2d 258) (1991).

The Supreme Court in Sherman held that the defense of entrapment was established as a matter of law in that case. Wagner was at least entitled to a jury charge on the subject, because a jury could find that this case “illustrates an evil which the defense of entrapment is designed to overcome. The government informer entices someone attempting to avoid narcotics not only into carrying out an illegal sale but also into returning to the habit of use. Selecting the proper time, the informer then tells the government agent. The setup is accepted by the agent without even a question as to the manner in which the informer encountered the seller. Thus the Government plays on the weaknesses of an innocent party and beguiles him into committing crimes which he otherwise would not have attempted. Law enforcement does not require methods such as this.” Sherman, supra at 376.

The evidence would support a finding that, with the knowledge that what they were doing was “wrong” and that they were “using him,” law enforcement officials fed Wagner’s habit in an effort to guarantee his continued cooperation, which resulted in the arrest of the two drug dealers who supplied the cocaine. A triable issue was made as to whether the State’s informant created the criminal design by undue persuasion, incitement and deceitful means. “The agent’s conduct is to be viewed objectively, and evaluated by the jury in light of the standard of conduct exercised by reasonable persons generally. See LaFave and Scott, Criminal Law, § 48, at p. 371 (1972).” Keaton, supra.

The court not only refused to charge on entrapment but threatened to cite defense counsel for contempt if it were even mentioned. In addition, on relevancy grounds, the court vehemently limited Wagner’s narrative testimony about having been off drugs until his encounters with “Jeff.” Although the jury was permitted to hear limited testimony regarding Wagner’s resumption of use through the prompting of the informer, it was not instructed on the law of entrapment so as to know how to evaluate the evidence in light of the law.

Decided February 5, 1996.

Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

“ ‘Where there is only one defense on which a party relies, failure to instruct the jury as to the evidence supporting this defense, so specifically that the jury will not only be required to pass upon it, but will be enabled to do so intelligently, under pertinent rules of law and evidence, withdraws that defense from the jury, and to that extent prejudices the defendant’s right to a fair and impartial trial. . . .’ [Cit.]” Tolbert, supra at 726 (1).

The court erred and a new trial is required.

Judgment reversed and case remanded.

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


text:
    A95A2662.
    EDWARDS v. THE STATE.
    (467 SE2d 379)
   Beasley, Chief Judge.

Edwards appeals from his conviction and sentence on one count of the sale of cocaine. OCGA § 16-13-30 (b).

Evidence at trial showed that on October 22, 1992, a military police officer working undercover with the Hinesville police department purchased $50 worth of crack cocaine from Edwards. The officer was accompanied by a known source who had volunteered to assist the police in undercover drug operations and who arranged the purchase with Edwards. The police did not immediately arrest Edwards, so as to conduct further undercover buys in the area. He was arrested on November 6, when he turned himself in at the police station.

1. Edwards contends the court erred in denying his motion for new trial on the ground of ineffective assistance of trial counsel. This contention arises from an instance during Edwards’ cross-examination of the volunteer source in which his counsel asked: “How do you know [Edwards]?” and the witness responded: “I know him through buying drugs from him before that day. When I was using drugs, he was one of the individuals who I was buying drugs from.”

Edwards’ motion for new trial originally specified the two evidentiary grounds found in OCGA §§ 5-5-20 and 5-5-21. His brief in support of his motion argued additional grounds, including ineffectiveness of counsel, although there is no formal amended motion. The record does not show that he requested an evidentiary hearing on the ineffectiveness claim, which would ordinarily preclude consideration of the claim, see Clair v. State, 216 Ga. App. 414 (1) (454 SE2d 556) (1995), but an oral hearing on his motion was held where he argued his ineffectiveness claim. The trial court’s order denying the motion states that it is denied on each and every ground. As the trial court did not hold that Edwards had waived his claim by his failure to request a hearing, and a hearing was held at which Edwards had the opportunity to address each of his bases for new trial and present witnesses as he deemed necessary, the trial court’s decision on the ineffectiveness claim is reviewable. See Pitts v. State, 209 Ga. App. 47, 48-49 (2) (432 SE2d 643) (1993).

To prevail on his claim of ineffective assistance of counsel, Edwards must satisfy a two-part test. “First, [he] must show that counsel’s performance was deficient; second, he is required to show that he was prejudiced by counsel’s deficient performance. [Cit.] ‘There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.’ [Cit.] [The second] question is whether there exists a reasonable probability that, but for his counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt ([cit.]), that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different. [Cit.] ‘A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.’ [Cit.]” White v. State, 216 Ga. App. 583, 584 (1) (455 SE2d 117) (1995).

Edwards contends he was not afforded effective assistance of counsel because counsel failed to request a mistrial after the witness’s answer placed evidence of Edwards’ bad character before the jury. Even if it is assumed that refraining from making the motion was deficient, the result would not have changed had such a motion been made, as defendant would not have been entitled to a new trial as a matter of law. The witness’s answer was responsive to the question and Edwards could not complain of evidence elicited by his own question. Wells v. State, 212 Ga. App. 60, 62 (1) (441 SE2d 460) (1994). To hold otherwise would allow a defendant to engineer a mistrial.

Although Edwards now suggests counsel’s performance was ineffective in asking “How do you know [the defendant]?” at the motion hearing he specifically informed the court he was not arguing that asking the question was ineffective. Further, the question was asked during cross-examination concerning the witness’s ability to recall the appearance and identity of the person who sold the cocaine. His cross-examination of the officer, the only other State witness directly involved in the drug purchase, centered on the same point. The primary defense presented in closing argument was that the State failed to reliably identify Edwards as the man who sold the cocaine. As the court noted at the hearing, the question was relevant to that defense, and it appears counsel asked the question in an attempt to discredit the witness’s ability to identify Edwards.

The transcript of the hearing on his motion for new trial reveals Edwards presented no evidence, only argument. It does not appear he was prevented from calling witnesses. As a hearing was held at which Edwards could have demonstrated the unsoundness of the question but did not do so, he has failed to overcome the strong presumption that counsel’s action was part of a valid, albeit unsuccessful, trial strategy. White, supra at 583 (1).

2. Edwards also contends the court erred in allowing the State to introduce into evidence a copy of the police booking report that showed him having two aliases, “Popeye” and “Tank.” His ground is that it recorded an incriminating statement he made in response to the booking officer’s questions, without his having received the Miranda (v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966)) warnings concerning self-incrimination prior to booking. See Syfrett v. State, 210 Ga. App. 185, 186 (3) (435 SE2d 470) (1993). He contends the report is incriminating because it allows the State to link him to the alias “Popeye” and he argued at trial that he is not known by that nickname, but only by “Tank.” Although there is no evidence in the record concerning when, or whether, Edwards was given Miranda warnings, the State does not dispute that he had not been given the warnings before booking. Edwards relies only on his rights under the Fifth Amendment to the United States Constitution; he makes no argument under the provisions of the Georgia Constitution. Compare Hudson v. State, 188 Ga. App. 684, 685 (1) (374 SE2d 212) (1988).

It is undisputed that the police department requires the booking officer to complete a form report on all those arrested. The form requires information such as name, address, telephone number, social security number, date and place of birth, employer, height, and weight. The only other information required that would likely be provided by the arrested individual rather than the booking officer is “alias.” Edwards did provide that information himself, in response to the booking officer’s questions.

Miranda warnings are required “ ‘only when the individual is interrogated while in custody.’ [Cit.]” (Emphasis omitted.) Syfrett, supra at 186 (3). “ ‘[T]he definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.’ Rhode Island v. Innis, 446 U. S. 291, 301-302 (100 SC 1682, 64 LE2d 297) (1980).” (Emphasis omitted.) Hibbert v. State, 195 Ga. App. 235, 236 (393 SE2d 96) (1990).

Decided February 5, 1996.

Merritt & Rose, C. Nathaniel Merritt, for appellant.

Dupont K. Cheney, District Attorney, Charles D. Howard, Assis tant District Attorney, for appellee.

Asking for a subject’s name, age or date of birth, and address as part of a procedure “normally attendant to arrest and custody,” White v. State, 168 Ga. App. 794, 796 (310 SE2d 540) (1983), constitutes questioning that is not reasonably likely to elicit an incriminating response. Mincey v. State, 257 Ga. 500, 507 (10) (360 SE2d 578) (1987); White, supra, 168 Ga. App. at 796. Recording such information is specifically required by OCGA § 17-4-27. Asking the names and addresses of family members is deemed reasonable and unconnected with the investigation of the crime for which the defendant was arrested. Hibbert, supra. In Lester v. State, 174 Ga. App. 886, 887 (2) (332 SE2d 31) (1985), confusion had arisen over a subject’s name. His Fifth Amendment rights were not violated by asking for his name and some identification.

The record is silent as to the reason the police ask for aliases. We need not decide whether that is a question the police should know is reasonably likely to elicit an incriminating response. The report was not the only evidence linking Edwards to the nickname “Popeye,” nor was any such linkage crucial to the State’s case. The volunteer informant testified that she knew Edwards as both “Popeye” and “Tank” and that she had encountered him seven or more times before the undercover drug purchase. At trial, both the informant and the undercover agent identified Edwards as the person who had sold the cocaine. If it was error to admit the booking information on aliases, it was harmless. See Kesler v. State, 215 Ga. App. 553, 557 (4) (451 SE2d 496) (1994).

3. Finally, Edwards contends the evidence was insufficient to support the conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Two witnesses identified Edwards at trial as the person who sold the cocaine on October 22. Edwards’ attacks on their credibility only presented issues for jury resolution. Jacobs v. State, 207 Ga. App. 714, 716 (3) (429 SE2d 256) (1993). The evidence was sufficient to support the conviction. Jackson, supra.

Judgment affirmed.

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


text:
    A95A2717.
    GAY v. THE STATE.
    (467 SE2d 383)
   Beasley, Chief Judge.

Gay appeals from his conviction and sentence on one count of attempt to purchase cocaine. OCGA §§ 16-4-1 and 16-13-30 (a). He was also acquitted on one count of possession of a counterfeit substance. OCGA § 16-13-30 (i).

The State’s sole witness was an undercover police officer. He testified he was posing as a street-level drug dealer when approached by a car driven by Gay’s girl friend Barnes, with Gay in the front passenger seat. They stopped, spoke to the officer, and negotiated the sale of a “20 dollar piece” of counterfeit cocaine in exchange for two cartons of cigarettes. The officer testified that Gay had the cigarettes on the floorboard between his feet and that it was Gay who handed them to the officer and gave assurances they were genuine cigarettes. A videotape of the transaction was shown to the jury, but the view of Barnes and Gay was blocked in such a way that it did not clearly show who handed the cigarettes to the officer.

Gay testified that he had no conversation with the officer, the cigarettes were on the seat between Barnes and himself, and it was Barnes who handed them to the officer. On cross-examination he admitted he had testified in another judicial proceeding that the transaction was completely his and that Barnes had no involvement. He stated that his earlier testimony was falsely made in an attempt to help Barnes keep custody of a child.

No other witnesses testified. Barnes had already pleaded guilty on her own charges and was in custody at the time of trial, which took place on a Monday. On either the preceding Friday or on the morning of trial Gay secured an order from the court requiring that Barnes be produced to testify, presumably under OCGA § 24-10-61; the order is not in the record. A deputy was dispatched on the day of trial to bring Barnes from a correctional facility in Milledgeville, but she was informed there that Barnes had been taken to a hospital and was not available to testify. Gay informed the court of these facts concerning Barnes’ production, said he was unable to determine at which hospital she was, and moved for either a mistrial or a continuance, both of which were denied.

Gay enumerates as error the denial of his motion for a continuance, on the ground that a witness was absent at trial. OCGA § 17-8-25 sets forth eight factors that must be shown to the trial court before such a continuance will be granted. Each must be met before an appellate court will review the trial court’s exercise of discretion in. denying the motion. Vaughan v. State, 210 Ga. App. 381 (1) (436 SE2d 19) (1993). Among them are “that [the witness’s] testimony is material; . . . that the applicant expects he will be able to procure the testimony of the witness at the next term of the court;. . . and [that] the application must state the facts expected to be proved by the absent witness.” When he moved for a continuance, Gay did not make any statement as to what testimony he expected Barnes to give.

Gay contends he is relieved of the statutory requirement to state the specifics of Barnes’ potential testimony because the materiality of Barnes’ testimony cannot be in doubt as she was present throughout the transaction, citing Jackson v. State, 184 Ga. App. 133, 135 (2) (360 SE2d 907) (1987). In that case, this Court repeated the statement from the decision in Wingfield v. State, 159 Ga. App. 69, 71 (282 SE2d 713) (1981), that “ ‘there can constitutionally be no burden on the criminal defendant to prove what facts a witness will testify to so long as he shows the testimony is material.’ ” Jackson, supra. The defendant had learned the witness’s whereabouts only on the day of trial and was determined to have exercised due diligence in seeking to have her produced and in attempting to learn what her potential testimony might have been. Similarly in Wingfield, the defendant sought to subpoena three police officers to impeach the State’s account of his arrest but could not declare what their expected testimony would have been. The trial court erred in refusing to exercise its subpoena power over the officers at all, rather than in denying a continuance.

Even if Jackson and Wingfield are applicable to Gay’s situation and the court should have granted a continuance, there is no reversible error. At the hearing on Gay’s amended motion for new trial, Barnes testified about her whereabouts during Gay’s trial. She made no statement about what testimony she would have given and it is unknown whether she would have testified consistently with his version of the events. She admitted she was present during the prior judicial proceeding in which Gay had stated the purchase was his transaction, and that she had not disputed this testimony. There is no indication that Barnes’ testimony would have aided Gay. “ ‘In order for an alleged error to be grounds for reversal, appellant must show not only error, but also ensuing harm. (Cit.)’ [Cit.]” Frost v. State, 200 Ga. App. 267, 271 (4) (407 SE2d 765) (1991).

Nor does the record reflect that Gay informed the court that Barnes would be available to testify at the next term of court, as the statute requires. Although he argues that the court’s immediate denial of his motion prevented him from finding out when she might be available, there is no indication that timely inquiry would have produced that information. At the hearing on the motion for new trial, Gay’s counsel admitted that when the motion was made he had no idea when Barnes would have been available to testify. Barnes’ own testimony was that she was hospitalized for psychological and cardiac conditions and signed herself out against medical advice after six days. This does not support an inference that further inquiry would have enabled Gay to show the court she would be available at the next term of court.

Decided February 5, 1996.

Martin & McGuire, John J. Martin, Jr., for appellant.

Cheryl F. Custer, District Attorney, Nancy N. Bills, Assistant District Attorney, for appellee.

Gay failed to make the statutorily, required showings and failed to show that the denial of his motion for continuance adversely affected his defense.

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A95A2776.
    WALKER v. THE STATE.
    (467 SE2d 388)
   Andrews, Judge.

Dejuan Jermain Walker appeals his conviction on a jury verdict finding him guilty of armed robbery. Walker contends the trial court erred in allowing an investigator to give hearsay testimony from a relative of the co-defendants in the case and also in allowing into evidence a pre-trial photographic lineup identification of Walker. We disagree and affirm.

The evidence at trial was that, on the evening of January 9, 1995, Walker and co-defendants Foley and Braezle spent the night at the house of Carol Foley, the mother of defendant Foley and the common law wife of defendant Braezle. Around 1:00 the next afternoon, Foley and Walker went to the J. Loan Company in Riverdale. At approximately the same time, Braezle parked his pickup truck at an apartment complex across from the J. Loan Company. Foley and Walker went into the shop and Walker asked Jack Watson, the owner of the shop, to show him a gold chain which was hanging behind the counter. Watson testified that he had seen Walker in the pawn shop on several occasions, but did not know him by name. As Watson turned to reach for the chain, Foley pulled a gun and told him to raise his hands. Foley gave the gun to Walker who told Watson to go into the back of the shop. Afraid that Walker would kill him, Watson refused and Walker then told him to lie on the floor. Foley took jewelry and guns from the case and put them in a canvas bag. As soon as Walker and Foley left, Watson got up, grabbed two loaded guns from behind the counter and ran outside. He saw the two men running on the other side of the street and fired at Foley, hitting him in the leg. Watson called 911 and then went over to Foley and stayed with him until police arrived. Braezle, who had been parked across the street with the hood of his truck open, heard the shots and left.

Later, Ronald Beddingfield, the investigator assigned to the case, showed Watson a photographic lineup from which Watson positively identified Walker as one of the men who had robbed him. On January 13, 1995, Walker was arrested by detectives on a detail called “Operation Clean Sweep” in the Techwood Homes area. When arrested, Walker was carrying a .357 caliber revolver which matched the description given by Watson of the gun used in the robbery.

1. First, Walker claims that the trial court erred in allowing into evidence the hearsay testimony of Detective Beddingfield. During his investigation of the robbery, Beddingfield interviewed Carol Foley, the common law wife of co-defendant Braezle. Ms. Foley told Beddingfield of conversations she had with all three defendants after the robbery. She said Walker called her on January 14 and told her he had committed a robbery at the J. Loan Company.

At trial, Foley invoked the marital privilege and refused to testify against her husband. Under the necessity exception to the hearsay rule, the trial court allowed Beddingfield to testify as to Braezle’s admissions to Ms. Foley. The trial court also allowed Beddingfield to testify about Ms. Foley’s conversation with Walker on January 14. Walker contends that while the hearsay testimony concerning Braezle properly could be admitted, the necessity exception to the hearsay rule did not apply to hearsay statements concerning anyone other than Ms. Foley’s common law husband. Therefore, Walker claims he was denied his constitutional right to confront and cross-examine Ms. Foley.

The court held a hearing on the admissibility of Beddingfield’s testimony and ruled as follows: “This officer can testify that Mrs. Foley told him that Walker told her on 1/22 that he went to J. Loan Company to rob it. He can testify as to what she said about who spent the night at her house and I do find that there is a sufficient indicia of reliability to allow this statement into evidence. It’s no different than if somebody is down at the jail. They are in jail for something and if they tell somebody in the jail, ‘Hey, I committed the crime,’ that person can come in and testify to it. These defendants told this woman certain things. She has claimed the privilege and I believe under the Patterson case this officer can testify as to what she told him that they had said to her.”

It is undisputed that, under Patterson v. State, 202 Ga. App. 440 (414 SE2d 895) (1992), Beddingfield could testify about Braezle’s admissions to Ms. Foley. See Patterson, supra at 443-444. However, Patterson does not apply to Ms. Foley’s conversations with Foley or Walker. Neither do we find this testimony admissible under any other exception to the hearsay rule. While the record shows that counsel for all parties were concerned about the possibility of a mistrial if Ms. Foley, who was apparently a volatile and unpredictable witness, were called to testify, this does not make her “unavailable” for purposes of the necessity exception. See Glisson v. State, 188 Ga. App. 152, 154 (372 SE2d 462) (1988) (necessity exception only applies when witness is “unavailable” to testify in person, usually because of death or invoking a privilege, not to a witness whose testimony is compellable); Shaver v. State, 199 Ga. App. 428 (405 SE2d 281) (1991) (no exception to hearsay rule when witness not “available” because he is incompetent). Accordingly, that portion of Beddingfield’s testimony concerning Ms. Foley’s conversation with Walker was hearsay, and the court erred in allowing it.

However, while we find this portion of Beddingfield’s testimony to be inadmissible hearsay, we do not find a violation of the confrontation clause. “The confrontation clause guarantees the defendant in a criminal trial the general right to cross-examine the witness, that being the principal means by which the believability of a witness and the truth of his testimony are tested.” Henderson v. State, 182 Ga. App. 513, 517 (356 SE2d 241) (1987), rev’d on other grounds, 257 Ga. 618 (362 SE2d 346) (1987). There is no violation of this Sixth Amendment right if the witness is present and available for cross-examination. Henderson, supra at 517.

The record shows Ms. Foley was present in the courtroom during the trial. Walker does not point to, and we do not find, anywhere in the record where counsel requested and was denied permission to call Ms. Foley as a witness for purposes of cross-examination as to her conversation with Walker on January 14. Further, at the close of evidence, the trial court specifically clarified its ruling on this issue, stating that it had never precluded either Walker or Foley from calling Ms. Foley to the stand and cross-examining her as to anything she may have told Detective Beddingfield about either of them. Therefore, from the record before us, we cannot say that Walker was denied the right to cross-examine Ms. Foley. Accordingly, since Ms. Foley was present and available during the trial to testify and Walker did not call her, he cannot now complain that he was denied his right to confront and cross-examine the witness. Thus, there was no violation of Walker’s Sixth Amendment rights under the confrontation clause.

Decided February 5, 1996

David B. Brown, for appellant.

Robert E. Keller, District Attorney, M. Tom Woodward, Assistant District Attorney, for appellee.

The inquiry then becomes whether the hearsay testimony was harmful as a matter of law. We find that it was not. “This court has recognized the general rule that in order to justify a new trial or reversal, the trial court’s ruling must be both erroneous and harmful to the appellant.” Glass v. State, 235 Ga. 17, 19 (218 SE2d 776) (1975). The test for harmful error is whether it is “highly probable” that the error contributed to the judgment. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). In determining whether hearsay testimony is harmful, this court has found “ [inadmissible hearsay which is received over objection does not require a new trial if it appears that the evidence could not have affected the verdict because other evidence by a witness with immediate and personal knowledge is sufficient to establish the fact in question.” Glass, supra at 19. Here, there was sufficient evidence by a witness with personal knowledge from which the jury could find Walker committed the robbery without Beddingfield’s testimony. As discussed above, Watson, the shop owner, positively identified Walker from a photographic lineup and also in court as one of the men who robbed him. In addition, when Walker was arrested he was carrying a gun which exactly matched the description given by Watson. Therefore, we find it is highly probable that the error did not contribute to the judgment. Accordingly, Beddingfield’s hearsay testimony was harmless error and, thus, was not grounds for a new trial.

2. In his second enumeration of error, Walker contends the circumstances surrounding the victim’s identification of him from a photographic lineup were unnecessarily suggestive. But, Walker does not give any specific reason for claiming the lineup was suggestive. Further, there is nothing in the record to indicate that the lineup was suggestive in any way. Therefore, since Walker does not point to, and we are unable to find, any facts in the record to support this claim, we find this enumeration of error to be without merit.

Judgment affirmed.

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

       Counsel and the trial court believed it would be difficult to prevent her from mentioning that she had invoked the marital privilege, thus creating a mistrial under the rule of Westbrook v. State, 162 Ga. App. 130 (290 SE2d 333) (1982).


text:
    A95A2039.
    BANKS v. GEORGIA POWER COMPANY.
    (469 SE2d 218)
   Beasley, Chief Judge.

Georgia Power Company instituted this special master proceeding to condemn a portion of a tract of land owned by Banks as an easement for a right-of-way in order to construct, operate, and maintain a high-voltage electric power line. OCGA § 22-2-100 et seq. On appeal to superior court, Banks filed value and non-value exceptions to the award of the special master. The court entered a judgment of taking, resolving the non-value issues adversely to Banks and finding that the issues of value should be tried before a jury.

Prior to trial, Banks attempted to appeal the judgment of taking to the Supreme Court by interlocutory and direct appeal, but both were dismissed. Following the trial, Banks appealed the final judgment to the Supreme Court, which transferred the appeal to this Court on the authority of Law v. State, 219 Ga. 583 (134 SE2d 776) (1964), and Jones v. Van Vleck, 224 Ga. 796 (164 SE2d 724) (1968). Law held that the challenge to the constitutionality of the statute was not properly raised and preserved. In Jones, the Court found no allegations or prayers for equitable relief; it held that a prayer for declaratory judgment does not give the Supreme Court exclusive jurisdiction.

1. In her first enumeration, Banks contends the superior court erred in entering the judgment of taking, in that the special master’s finding that there were no consequential damages to the remainder of her tract is without adequate evidentiary support.

The issue of consequential damages was tried in the superior court in a de novo proceeding. Walker v. Ga. Power Co., 177 Ga. App. 493, 496 (1) (339 SE2d 728) (1986); see OCGA § 22-2-110 (d). Consequently, the question of whether the evidence supported the special master’s finding on this issue is moot.

2. In her second enumeration, Banks contends that the use of the special master proceeding was unwarranted as there was no need for a quick taking or, if there was such a need, it was brought about only by the actions of the condemnor.

The condemnor may choose its method of procedure. Wrege v. Cobb County, 186 Ga. App. 512, 514 (1) (367 SE2d 817) (1988). “ ‘So long as the procedure used to take the condemnee’s property is in accordance with the law, [condemnee] has no ground of complaint because another procedure, also authorized by law, was not used.’ [Cit.]” Harwell v. Ga. Power Co., 154 Ga. App. 142, 148 (5) (267 SE2d 769) (1980), aff’d 246 Ga. 203 (269 SE2d 464) (1980). Georgia Power’s utilization of the special master proceeding was authorized by OCGA §§ 22-2-101 and 22-3-20.

Moreover, in this case Georgia Power in fact proved the necessity of a quick taking. The condemnor had delayed this project for several years because of financial considerations but, as a result of near blackouts more recently, had begun working to complete the multiple phases of the project as quickly as possible.

3. In her third through ninth enumerations, Banks challenges the constitutionality of OCGA §§ 22-2-102.1 and 22-3-20 on due process, equal protection, and other grounds.

She maintains that OCGA § 22-2-102.1 constitutes an unconstitutional abridgement or improper delegation of the legislative power of eminent domain, is violative of the doctrine of separation of powers, lacks standards to prevent the arbitrary and capricious exercise of the power of eminent domain, and is available to an arbitrary class of condemnors. According to Banks, OCGA § 22-3-20 also constitutes an unconstitutional delegation of the legislative power of eminent domain in that such power is not restricted to public purposes, and there is a lack of objective standards to determine need or necessity by the condemnor.

In its judgment of taking, the superior court expressly rejected those of Banks’ exceptions which challenged the constitutionality of these statutory provisions. Citing Earth Mgmt. v. Heard County, 248 Ga. 442 (283 SE2d 455) (1981); O. K., Inc. v. State Hwy. Dept. of Ga., 213 Ga. 666 (100 SE2d 906) (1957), and other cases, the court noted that the Special Master Act has been declared constitutional by the appellate courts of this state on many occasions. However, the court stated that these cases have not directly addressed Banks’ challenge to the constitutionality of OCGA § 22-3-20. The court rejected this challenge on grounds that the legislature has provided adequate standards by requiring that there be necessity for the taking and that the taking be for a public purpose. Nonetheless, the Supreme Court transferred the case to this Court by an order which stated that the trial court made no ruling on a constitutional question. The Supreme Court denied Banks’ motion to reconsider the transfer order, although she attached the full text of the judgment of taking to the motion.

We have no authority to determine the constitutionality of these statutory provisions. Art. VI, Sec. VI, Par. II (1), Ga. Const. 1983. See Burson v. State, 183 Ga. App. 647, 648 (1) (359 SE2d 731) (1987); Dalton v. State, 216 Ga. App. 411 (454 SE2d 554) (1995).

4. In her tenth and eleventh enumerations, Banks challenges the easement as awarded on grounds that it provides benefits to Georgia Power and imposes burdens on her beyond the easement boundaries.

Specifically, Banks complains that the judgment of taking awards Georgia Power “the right of ingress and egress to and from said right-of-way over roads, if any, existing at the time of necessity for such ingress and egress for the purpose of constructing, operating, maintaining, repairing, renewing, replacing and rebuilding said line or lines.” However, “[w]ithout this reasonable right of ingress and egress the condemnor would not be able to utilize the easement itself, as the law contemplates and provides.” Hinton v. Ga. Power Co., 126 6a. App. 416, 420 (11) (190 SE2d 811) (1972).

5. In her twelfth enumeration, Banks contends that the court erred in not allowing her appraisal witness Robinson to be identified as having testified on behalf of Georgia Power in the hearing before the special master.

At that earlier hearing, Robinson testified that the value of Banks’ entire tract prior to the taking was $1,164,100. Before the jury, another appraiser employed by Georgia Power testified that the value of the tract was $868,000. Banks called Robinson as her witness. He testified that he had revised his earlier appraisal downward because of newly discovered miscalculations. The court refused to allow Banks to show that Robinson had made the earlier appraisal on behalf of Georgia Power.

Banks argues that the prior testimony of this witness constituted an admission of a higher value by Georgia Power and should have been made known to the jury. But, as noted in Division 1, the jury trial is a de novo proceeding. The condemnor was entitled to reject this expert’s earlier appraisal, as had the expert himself. Contrary to appellant’s argument, the expert’s earlier appraisal did not constitute an admission of value by Georgia Power just because it had hired him and used his opinion at the special master hearing. To allow such an erroneous inference would be prejudicial. “Neither party to a condemnation case is bound by rejected opinions of expert witnesses employed by them to appraise realty being condemned.” Logan v. Chatham County, 113 Ga. App. 491, 493 (2) (148 SE2d 471) (1966); Dept. of Transp. v. Willis, 165 Ga. App. 271 (1) (299 SE2d 82) (1983). See under Willis and Logan, questions relating to the expert’s employment by the condemnor were irrelevant and inadmissible. The condemnee was permitted to elicit the fact that the expert had given a substantially higher appraisal at an earlier proceeding.

6. In her thirteenth enumeration, Banks contends that the court erred in not allowing expert testimony proffered by her on the consequential effect of high-voltage electric power lines.

The court allowed Banks to present evidence of the effect of power lines on property values through the testimony of an expert in real estate appraisal. It would not allow her to present the testimony of a Florida homeowner who had become a political activist against high-voltage power lines. This witness, who was not qualified as an expert, would have testified to public opposition to electric power lines in other states, primarily because of their adverse impact on property values and health risks associated with electromagnetic fields. The court ruled that this witness’s testimony on the issue of health risks was inadmissible because she was not an expert in this field but rather merely repeated the opinions of experts whom she had consulted. The court did not err in this ruling. A witness may not be a mere conduit for the opinion of others. Jordan v. Ga. Power Co., 219 Ga. App. 690 (1) (466 SE2d 601) (1995); Garrett v. State, 169 Ga. App. 327, 328 (312 SE2d 621) (1983).

Decided January 22, 1996

Reconsideration denied February 6, 1996

Banks, Stubbs & Neville, Baylor B. Banks, Rafe Banks III, for appellant.

Smith, Gilliam & Williams, John H. Smith, M. Tyler Smith, Scott A. Ball, for appellee.

In reliance upon Dixie Textile Waste Co. v. Oglethorpe Power Corp., 214 Ga. App. 125 (1) (447 SE2d 328) (1994), the Court ruled that the witness’s testimony concerning opposition to power lines in other states should not be presented to the jury for essentially two reasons. First, it was not relevant to prove a lowering of the value of Banks’ property in Georgia. Second, Banks had been permitted to show the adverse effect of power lines on property values through the testimony of her real estate expert. We find no abuse of discretion in this ruling. See generally Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185, 186 (3) (450 SE2d 452) (1994).

7. In her fourteenth enumeration, Banks contends that the court improperly expanded the scope of the jury trial as she appealed to the superior court only the issue of consequential damages to her remaining property and did not desire to relitigate the issue of the value of the entire tract.

Again, as noted in Division 1, an appeal from the award of the special master to a jury in the superior court is a de novo proceeding. An appeal by either party entitles both parties to a de novo determination of the issue of value or damages. Smith v. Ga. Power Co., 131 Ga. App. 380, 383 (1) (205 SE2d 916) (1974).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A95A2109.
    NORRIS v. THE STATE. NORRIS v. THE STATE. PARIS v. THE STATE.
    A95A2110.
    A95A2111.
    (469 SE2d 214)
   McMurray, Presiding Judge.

Defendants Larry Norris, Anthony Tyrone Norris, McKendrell Paris, Carlos Tarrez Harris and Charles Christopher Poole were jointly indicted for the armed robbery and aggravated assault of James Stanley Curtis (“the victim”). The evidence adduced at a jury trial reveals that S. R., a juvenile, drove Eddie Lamar Jackson and defendants to the victim’s home for the purpose of obtaining illegal drugs. Defendants Anthony Tyrone Norris and Larry Norris went inside the victim’s home with Jackson while defendants Harris, Poole and Paris waited outside with S. R. While inside, defendants Anthony Tyrone Norris and Larry Norris ransacked the house and beat the victim and Eddie Lamar Jackson. After the victim informed defendants Anthony Tyrone Norris and Larry Norris that he did not have any illegal drugs, defendant Larry Norris shot the victim in the leg. Defendant Paris then entered the house and seized the victim’s telephone receiver and a pellet gun. After restraining the victim and Jackson with a cord, defendants Anthony Tyrone Norris and Larry Norris fled the scene with the other defendants and S. R. Defendants Anthony Tyrone Norris and Larry Norris got away with a few dollars in cash and defendant Paris got away with the pellet gun. Defendant Paris also took the victim’s telephone receiver.

The jury found defendants Anthony Tyrone Norris, Larry Norris and Paris guilty on both counts of the indictment. Co-defendants Harris and Poole were found not guilty. These appeals followed the denial of the convicted defendants’ motions for new trial. The appeal filed by defendant Larry Norris was docketed as Case No. A95A2109. The appeal filed by defendant Anthony Tyrone Norris was docketed as Case No. A95A2110. And the appeal filed by defendant Paris was docketed as Case No. A95A2111. We now consider all three appeals. Held:

1. Defendant Anthony Tyrone Norris challenges the sufficiency of the evidence, arguing that the identification testimony of the victim and Eddie Lamar Jackson is too contradictory and speculative to authorize the jury’s finding that he was a perpetrator of the crimes charged. Similarly, defendant Larry Norris asserts that the identification testimony of the victim and Eddie Lamar Jackson was “not of sufficient probative force to warrant admission into evidence.” These contentions are without merit.

“ ‘The 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. (Cit.) It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence. (Cit.) Rather, on appeal, we indulge every contingency in favor of the verdict. (Cit.)’ Simpson v. State, 193 Ga. App. 439, 440 (2) (388 SE2d 39) (1989).” Nguyen v. State, 201 Ga. App. 132, 133 (410 SE2d 340).

In the cases sub judice, S. R. testified and placed defendants Anthony Tyrone Norris and Larry Norris at the crime scene. S. R.’s testimony was corroborated by the identification testimony of the victim and Eddie Lamar Jackson. This evidence alone is sufficient to authorize the jury’s findings that defendants Anthony Tyrone Norris and Larry Norris are guilty, beyond a reasonable doubt, of the crimes charged in the indictment, i.e., armed robbery and aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Nguyen v. State, 201 Ga. App. 132, 133, supra.

2. Defendant Paris contends the evidence is insufficient to authorize a finding that he was a party to the crimes, arguing that he did not enter the victim’s house until after completion of the armed robbery and the aggravated assault.

“ ‘Presence at the scene of a crime, even when coupled with knowledge and approval, not amounting to encouragement, is not sufficient to show that defendant is a party. Brown v. State, 250 Ga. 862 (1) (302 SE2d 347) (1983); Parker v. State, 155 Ga. App. 617 (2) (271 SE2d 871) (1980). However, “criminal intent may be found by the jury ‘upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’ OCGA § 16-2-6.” Lunz v. State, 174 Ga. App. 893, 895 (332 SE2d 37) (1985). “While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. (Citation and punctuation omitted.)” Kimbro v. State, 152 Ga. App. 893, 894 (264 SE2d 327) (1980).’ Smith v. State, 188 Ga. App. 415, 416 (1) (373 SE2d 97).” Griggs v. State, 208 Ga. App. 768 (1), 769 (432 SE2d 591).

In the cases sub judice, defendant Paris went to the crime scene with defendants Anthony Tyrone Norris and Larry Norris and robbed the victim as he was bleeding from a gunshot wound inflicted by defendant Larry Norris. This evidence, and proof that defendant Paris fled the crime scene with defendants Anthony Tyrone Norris and Larry Norris, is sufficient to authorize the jury’s finding that defendant Paris is guilty, beyond a reasonable doubt, of being a party to the armed robbery and aggravated assault of James Stanley Curtis. Jackson v. Virginia, 443 U. S. 307, supra; Earl v. State, 214 Ga. App. 891 (1) (449 SE2d 361).

3. Defendants Anthony Tyrone Norris and Larry Norris contend the trial court erred in denying their joint motion for mistrial, arguing that the State’s attorney improperly commented (during closing argument) on their failure to testify or present a defense at trial.

At trial, defendants jointly asserted a motion for mistrial and argued that the State’s attorney impermissibly shifted the burden of proof by making “reference [during closing argument] to the failure of the defense to put up a defense.” After the trial court stated that he did not recall any such comment, counsel for defendant Harris stated that “she made the phrasing failure to put up any arguments. ...” This suggestion was apparently in reference to the State’s attorney’s argument that defendants focused upon irrelevant issues and blamed others for the crimes charged “[b]ecause they don’t have anything else to argue.”

“In Ranger v. State, 249 Ga. 315 (3) (290 SE2d 63) (1982), the Supreme Court adopted a two-prong test to determine if a prosecutor’s remarks warrant reversal: (1) either the prosecutor’s manifest intent was to comment upon the defendant’s failure to testify or (2) the remark was such that the jury would naturally and necessarily take it as comment on the defendant’s failure to testify.” Millwood v. State, 191 Ga. App. 659 (2), 660 (382 SE2d 430). In the cases sub judice, we find no violation of either prong of this test. First, it appears that the State’s attorney was merely commenting upon the implausibility of defendants’ version of the proof. Second, we do not believe the jury would necessarily have taken the State’s remark as a comment upon defendants’ failure to testify or their failure to present defenses. On the contrary, the State’s remark “[defendants] don’t have anything else to argue” appears to be within the proper range of closing argument. See Smith v. State, 178 Ga. App. 19 (341 SE2d 901); Hall v. State, 163 Ga. App. 515, 517 (4) (295 SE2d 194).

4. Other grounds asserted by defendant Anthony Tyrone Norris in support of his contention that the State’s attorney uttered impermissible comments during closing arguments were not raised at trial and will therefore not be considered on appeal. “It is well settled that this court will not consider issues raised for the first time on appeal. See Perault v. State, 162 Ga. App. 294 (2) (291 SE2d 122) (1982).” Coggins v. State, 168 Ga. App. 12, 13 (3) (308 SE2d 36).

5. Defendant Anthony Tyrone Norris contends the trial court erred in denying his pre-trial motion for the State to supply him with funds to hire a handwriting expert, claiming that such an expert could have verified an entry he made in an out-of-town motel’s guest register on the day of the crimes charged and thereby substantiated his alibi defense.

Although a handwriting expert may have verified the presence of defendant Anthony Tyrone Norris’ handwriting in an out-of-town motel’s guest register, defendant Anthony Tyrone Norris failed to demonstrate that such expert assistance was critical for establishing his alibi defense. Roseboro v. State, 258 Ga. 39 (3), 41 (3) (d) (365 SE2d 115). Under the circumstances of the case sub judice, we cannot say the trial court abused its discretion in denying defendant Anthony Tyrone Norris’ motion for funds to hire a handwriting expert. Id. at 39 (3) (a).

Decided January 22, 1996

Reconsideration denied February 6, 1996

Michael J. Moses, for appellant (case no. A95A2109).

John J. Pilcher II, for appellant (case no. A95A2110).

Susan E. S. Shook, for appellant (case no. A95A2111).

Richard A. Malone, District Attorney, Anne L. Durden, Assistant District Attorney, for appellee.

6. Defendant Paris contends the trial court erred in charging the jury that “[a] person entering into a conspiracy already formed is a party to all acts done by the other conspirators before and after such entry into the furtherance of the criminal enterprise.” He reasons that the word “after” in this instruction improperly “signifies that a person entering the crime as an accessory after the fact is both a co-conspirator and a party to the crime.” This contention is without merit.

The above-quoted instruction is an accurate statement of the law, Watkins v. State, 207 Ga. App. 766, 773 (5) (430 SE2d 105), and in no way confuses the subject of liability as a conspirator with the distinct theory of liability as an aider and abettor. See Drane v. State, 265 Ga. 255, 257 (4), 258, n. 4 (455 SE2d 27). In fact, the trial court did not even mention liability as an aider and abettor when he instructed the jury as to liability as a conspirator.

Judgments affirmed.

Andrews and Blackburn, JJ., concur.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A95A2032.
    WRIGHT v. ASHE et al.
    (469 SE2d 268)
   Blackburn, Judge.

Eva Loletta Wright appeals the summary judgment entered against her claim for the wrongful death of her minor son that she brought against various officials in the Clayton County School District. Wright’s son was killed in an automobile accident one morning while skipping school. Upon the defendants’ motion, Judge William H. Alexander of the Fulton County Superior Court granted summary judgment against Wright’s claim on the grounds of sovereign immunity and intervening cause. We affirm the trial court’s decision, adopting in large measure the order granting summary judgment entered by Judge Alexander which follows.

During the summer of 1990, the Clayton County School District offered its summer school program at North Clayton High School. Defendant James Lancaster was the principal of North Clayton High School. Defendant Richard Ashe, an assistant principal, oversaw the day-to-day operations of the summer school program. Defendants Winnie Anderson and Patricia Hunt were both teachers who taught during the 1990 summer school session.

Plaintiff’s son, Daniel James Wright was enrolled as a student in the summer school program. Wright was scheduled to attend all three of the two-week summer school sessions. During the first session, Anderson was Wright’s teacher. Wright skipped class several times during the first two-week session, and as a result, received a failing grade for the first session. Plaintiff was aware that Wright had skipped class several times during the first session. She even grounded him upon learning of his many absences.

On July 12, 1990, the fourth day of the second summer school session, Wright, James Wilson, Jr., and Charles Gossett decided to leave the school campus during a scheduled class break in violation of the school policies. Gossett drove them all in his truck to Burger King for hamburgers. Upon learning that Burger King was not serving hamburgers that early in the morning, Gossett began driving erratically in the restaurant parking lot, performing three “donuts.” He then drove down a side street at approximately 65-70 mph and lost control of his vehicle. The truck struck a tree and Wright was killed. Gossett was later convicted of vehicular homicide.

Plaintiff filed the instant action on March 18, 1994, against the defendants for the wrongful death of her son. Plaintiff alleges that the defendants acted negligently and recklessly in failing to enforce the policies of the Clayton County School Board which resulted in the death of Wright. Thereafter, on August 29, 1994, the defendants filed the instant motion for summary judgment.

Defendants first contend that they are not liable to the plaintiff as a matter of law under the theory of official immunity. In support of this theory, defendants correctly point out that school employees are entitled to official immunity from their actions if those actions are within the scope of their employment, discretionary in nature, and without wilfulness, malice, or corruption. See Guthrie v. Irons, 211 Ga. App. 502, 504 (439 SE2d 732) (1993). However, a public official who fails to perform a purely ministerial duty is subject to an action for damages by one who is injured by his omission. Id. Defendants assert that the gravamen of plaintiff’s complaint is that the defendants failed to adequately supervise Wright and his companions, thus allowing them to skip class and leave the school campus. Defendants contend that it is well established in Georgia law that the duty to supervise by school officials is discretionary, not ministerial. Id. at 506. Therefore, defendants argue that the doctrine of official immunity bars this suit as a matter of law. Id. at 507.

Plaintiff, however, contends that in this case, the school board had established policies and rules which stated that students were not to leave the school premises, that parents were to be notified if the students failed to attend class, and restricted the students’ use of motor vehicles on campus. Plaintiff alleges that the carrying out of these policies was a purely ministerial duty and one which the defendants failed to perform. Accordingly, plaintiff alleges that defendants are not protected by the doctrine of official immunity. In support of this proposition, plaintiff relies on Joyce v. Van Arsdale, 196 Ga. App. 95 (395 SE2d 275) (1990), cert. denied, 196 Ga. App. 908 (1990).

In the instant case, the issue is whether the defendants’ acts were discretionary and therefore protected by official immunity, or ministerial and not shielded by official immunity. Generally, the determination of whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, and is to be made on a case-by-case basis. See Guthrie, supra at 504.

Plaintiff argues that in this case the defendants failed to protect Wright by not properly enforcing the school policies and not preventing him from leaving the campus during the class break. Plaintiff alleges that the Clayton County School Board policies regarding such matters were in place that summer but were completely disregarded by both the administration and the teachers. However, the defendants produced contrary evidence which shows that the school officials were attempting to enforce the policies.

Additionally, plaintiff argues that the school board’s policies required the defendants to carry out ministerial acts similar to those in Joyce, supra, where the court determined that the duty of erecting barricades after the county had made the determination that certain bridges were to be closed was purely ministerial in nature, and not discretionary. Relying on this argument, plaintiff contends that although creating the policies was a discretionary act by the school board, the simple implementation of the policies by the principals and teachers was ministerial in nature. This argument, however, was considered and rejected in Guthrie, supra.

As stated by the court in Guthrie, supra, the ministerial duty in Joyce, supra, “is not remotely comparable to the difficult task faced by the school principal and teacher in this case in supervising and controlling the activities of students, especially during a change in classes, when large numbers of students are moving from one location to another.” Guthrie, supra at 506. As such, this Court finds that the plaintiff’s argument is meritless.

The Georgia courts have consistently held that making decisions regarding the means used to supervise school children is a discretionary function of the school principal. See Guthrie, supra; see also Lewis v. McDowell, 194 Ga. App. 429, 431 (390 SE2d 605) (1990). Additionally, the general task imposed on teachers to monitor, supervise, and control students has also been held to be a discretionary action which is protected by the doctrine of official immunity. See Guthrie, supra; see also Doe v. Howell, 212 Ga. App. 305, 306 (441 SE2d 767) (1994); Parker v. Wynn, 211 Ga. App. 78, 79 (438 SE2d 147) (1993). As such, upon review of the record, it appears that the defendants’ acts in this case were discretionary in nature, not ministerial. Thus, they are entitled to the protection afforded by the doctrine of official immunity.

In the alternative, defendants contend that they are not liable to the plaintiff under the theory of intervening cause. This Court agrees with the defendants’ contentions.

Generally, there are two distinct legal theories involved in the question of causation: direct and proximate cause. See Wallace v. Boys Club of Albany, 211 Ga. App. 534, 539 (439 SE2d 746) (1993) (Birdsong, J., dissenting). In regard to proximate cause, the question is not whether the defendants’ conduct caused the injury, but whether the causal connection between the defendants’ conduct and the injury resulting therefrom is too remote to be the basis of a recovery. Id. at 539-540. Even where the defendant is negligent, if other circumstances preponderate in causing the injurious effect, such damages are generally deemed too remote and contingent to justify a recovery. Id. Such questions of negligence, proximate cause, and lack of ordinary care for one’s own safety are usually not proper for summary adjudication and instead must be resolved by a jury except in the most plain and palpable cases. See North v. Toco Hills, 160 Ga. App. 116, 119 (286 SE2d 346) (1981).

In this case, the victim’s injuries were directly caused by the criminal act of Gossett, a third party. Generally, an intervening criminal act of a third party, without which the injury would not have occurred, will also be treated as the proximate cause of the injury thus breaking the causal connection between the defendants’ negligence and the injury unless the criminal act was a reasonably foreseeable consequence of the defendants’ conduct. See Wallace, supra at 541.

In order to recover in this case plaintiff must show that not only were the defendants negligent in their supervision of the students, but that such negligence was the proximate cause of Wright’s injuries. See Wanless v. Winner’s Corp., 177 Ga. App. 783, 785 (341 SE2d 250) (1986). “If the injuries complained of did not flow naturally and directly from the wrongful act or omission attributed to the defendant, or could not reasonably have been expected to result therefrom, or would not have resulted therefrom, but from the interposition of some independent unforeseen cause, the defendant’s such antecedent wrongful act or omission, if any, would not be the proximate cause of the injury complained of.” Id. Additionally, if the injury complained of could not reasonably be anticipated as the probable result of the alleged act of negligence, then such act will be deemed to be either a remote cause or not cause of the injury sustained. Id.

Decided February 6, 1996

Gary H. Brakefield, for appellant.

Weekes & Candler, Laura L. Lones, Gary M. Sams, for appellees.

In the instant case, in viewing the facts in the light most favorable to the plaintiff, even if the defendants were negligent in their supervision and monitoring of the students, such conduct on the part of the defendants did nothing more than give rise to the occasion which made Wright’s injuries possible. Other unforeseeable circumstances, including the intervening criminal act of Gossett, preponderated in causing the injury to Wright. See Thurmond v. Richmond County Bd. of Ed., 207 Ga. App. 437, 440 (428 SE2d 392) (1993). Thus, it appears that the defendants’ conduct was, at best, a remote cause of the injuries sustained. See OCGA §§ 51-12-8; 51-12-9.

Accordingly, it appears that there are no genuine issues of material fact and that the defendants are entitled to summary judgment as a matter of law under both the doctrine of official immunity and intervening cause. See OCGA § 9-11-56 (c).

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as I do not believe the defendants are insulated from liability based on the doctrine of official immunity. I also believe that genuine issues of material fact remain as to the issue of proximate cause.


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    A95A2081.
    STEPHENSON v. THE STATE.
    (469 SE2d 266)
   Ruffin, Judge.

Charles Stephenson, Renee Humphries, Matthew Rider, and Michael Hyatt were indicted on two counts of burglary. Following a jury trial, Stephenson was convicted on both counts. He appeals his judgment of conviction and the denial of his motion for new trial. For reasons which follow, we affirm.

1. Stephenson contends the trial court erred in denying his motion for a continuance because he had inadequate time to confer with his attorney in the time between her appointment and the commencement of trial. The transcript shows that Stephenson’s attorney was appointed 12 days prior to trial. Although the attorney moved for a continuance on Stephenson’s behalf, she stated to the court that “at this time ... I have spent a great deal of time preparing for this case, and I feel ready to go forward with it if the Court so rules.” When asked by the court whether there were any witnesses she had been unable to interview, Stephenson’s attorney responded yes, but stated that she did not feel it would be a problem if she did not have the opportunity to interview that particular witness. Given these circumstances, we find no abuse of discretion in the trial court’s denial of the motion. Bennett v. State, 186 Ga. App. 832 (2) (368 SE2d 789) (1988).

2. In two enumerations of error, Stephenson contends the trial court erred in admitting evidence of a similar transaction because the prejudicial effect of his prior burglary conviction outweighed its relevance. We disagree.

Given the marked similarities the State demonstrated between the burglaries at the similar transaction hearing, proof of the former crime was, as the State argued, relevant to show Stephenson’s intent, course of conduct, motive, and scheme in committing the burglaries committed in the instant case. See Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). Thus, “any prejudice which may have resulted from admission into evidence of [Stephenson’s] prior criminal acts was outweighed by its relevance.” Ramirez v. State, 217 Ga. App. 120, 123 (2) (456 SE2d 657) (1995). This is particularly true given the court’s instructions to the jury concerning the limited purpose of the similar transaction evidence. Id.

3. Stephenson contends the trial court erred in denying his motion for new trial because the evidence was insufficient for the jury to find guilt beyond a reasonable doubt. Specifically, Stephenson argues that with the exception of Humphries’ testimony, there was no evidence that he made an unauthorized entry into the burglarized residences, and the uncorroborated testimony of an accomplice is insufficient to do so. We disagree.

In Tucker v. State, 205 Ga. App. 683 (423 SE2d 422) (1992), we held that although the defendant could not be convicted for burglary “on the uncorroborated testimony of an accomplice, . . . slight evidence of a defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony, and thus, support the verdict.” (Citations and punctuation omitted.) Id. at 684. Thus, even were the verdict in this case based on slight evidence of corroboration connecting Stephenson with the burglaries, it is legally sufficient. Bradford v. State, 262 Ga. 512 (421 SE2d 523) (1992). “The necessary corroboration may be by circumstantial evidence. . . . [Pjresence, companionship, and conduct before and after the offense are [also] circumstances from which [Stephenson’s] participation in the [crime could] be inferred.” (Citations and punctuation omitted.) Earl v. State, 214 Ga. App. 891, 892 (1) (449 SE2d 361) (1994).

In this case, Humphries testified that Stephenson needed money for a new car and that they therefore drove around the area where the burglaries occurred, accompanied by Hyatt and Rider, looking for a good place to rob. The residences they surveyed included the two which were ultimately burglarized. All of this testimony was corroborated by Hyatt and Rider. Hyatt and Rider also testified that after surveying the area, Stephenson drove them to the home of Humphries’ mother to spend the night, and early the next morning Humphries tried unsuccessfully to get the pair out of bed to join her and Stephenson in burglarizing the homes. Humphries testified that she and Stephenson then entered two homes, taking guns and jewelry from them. Humphries, Hyatt, and Rider all testified that Humphries and Stephenson then went to Humphries’ mother’s home where Stephenson assisted Hyatt and Rider in removing diamonds from some of the stolen jewelry. Rider testified that Stephenson told him the jewelry came from the home Stephenson and Humphries had just robbed. Finally, Stephenson admitted that he was present when the diamonds were removed from their settings, that he accompanied the other three to a pawn shop to sell the stolen items, and that when Humphries emerged from the last pawn shop, she handed him $2,800 which he used to purchase a car that day. Thus, there was sufficient corroboration evidence that Stephenson participated in the burglaries.

Finally, an accomplice’s testimony may be corroborated by the testimony of another accomplice. Cain v. State, 212 Ga. App. 531 (8) (442 SE2d 279) (1994). Because Humphries was corroborated by Hyatt and Rider in all material parts of her testimony, the jury could believe her testimony that Stephenson entered the homes, despite there being no independent corroboration on this issue. Pitts v. State, 128 Ga. App. 434 (197 SE2d 495) (1973). See also Wells v. State, 151 Ga. App. 416 (1) (260 SE2d 374) (1979), rev’d on other grounds, Copeland v. State, 160 Ga. App. 786 (287 SE2d 120) (1982). Thus, we find that there was sufficient evidence to authorize the jury’s finding that Stephenson was guilty beyond a reasonable doubt of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

Decided February 6, 1996.

Conrad & Abernathy, Michael C. Chisolm, for appellant.

Garry T. Moss, District Attorney, Margaret E. Daly, Kelly C. Crisp, Assistant District Attorneys, for appellee.


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    A95A2272.
    JACKSON v. THE STATE.
    (469 SE2d 264)
   Ruffin, Judge.

Daryl Jackson appeals his conviction of burglary, asserting as error the trial court’s denial of his motion challenging the State’s use of its peremptory strikes. Because the trial court’s decision was not clearly erroneous, we affirm.

The record shows that during jury selection, Jackson objected to the State’s use of peremptory challenges to strike six women from the jury, five of whom were African American. See Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), which prohibits peremptory strikes exercised solely on the basis of race, and J. E. B. v. Alabama, _ U. S. _ (114 SC 1419, 128 LE2d 89) (1994), which prohibits peremptory strikes exercised solely on the basis of gender. The Equal Protection Clause of the United States Constitution prohibits discrimination in jury selection on the basis of gender or race, or on the assumption that an individual will be biased in a particular case for no reason other than the individual’s gender or race. Tedder v. State, 265 Ga. 900 (463 SE2d 697) (1995). “Once a party challenging the exercise of a peremptory strike makes a prima facie showing of [race- or] gender-based discrimination, the party exercising the strike must give an explanation for the strike that is[, depending on the case, either race- or] gender-neutral, reasonably specific, and related to the case.” (Footnote omitted.) Id. at 901. In all cases, the reason given for the strike must be legitimate and not a reason that denies equal protection. See Purkett v. Elem, _ U. S. _ (115 SC 1769, 131 LE2d 834) (1995); Jackson v. State, 265 Ga. 897 (463 SE2d 699) (1995). In this case, however, “[t]he preliminary issue of whether [Jackson] established a prima facie case of discrimination is moot because the prosecutor offered purportedly [gender- and] race-neutral explanations for the peremptory challenges and the trial court ruled on the ultimate question of intentional discrimination. [Cit.] We therefore need only address the sufficiency of the prosecutor’s explanations for the exercise of the [State’s] peremptory strikes. . . .” Chunn v. State, 210 Ga. App. 209, 210 (2) (435 SE2d 728) (1993).

In reviewing the trial court’s disposition of the motion, “we must bear in mind that the prosecutor’s explanation need not justify a challenge for cause. ... The trial court’s decision rests largely upon assessment of the prosecutor’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.) Sorrells v. State, 218 Ga. App. 413, 414 (2) (461 SE2d 904) (1995).

The reasons given by the prosecutor for three of the State’s strikes have previously been ruled sufficient to overcome a prima facie case of discrimination. The prosecutor explained that he struck juror no. 29, an African-American female, because she was previously tried for embezzlement. The prosecutor struck juror no. 14, also an African-American female, because she had a cousin who was prosecuted by the district attorney’s office for murder. Close relations with an individual who has been in trouble with the law is a gender- and race-neutral reason sufficient to overcome a prima facie case. See Hall v. State, 261 Ga. 778 (2) (415 SE2d 158) (1991). Although Jackson argues the prosecutor did not strike a male juror whose cousin was also prosecuted by the district attorney’s office, the record shows that the answers to questions posed to juror no. 14, as well as her body language, led the prosecutor to fear that she was ambivalent about whether her cousin was fairly treated. The prosecutor struck juror no. 31, an African-American female, because she had a difficult time responding to questions and was inattentive. This too is a race- and gender-neutral reason that we have ruled sufficient to overcome a prima facie case of discrimination. See Dixon v. State, 214 Ga. App. 374 (3) (448 SE2d 40) (1994).

Likewise, we find that the prosecutor gave legitimate reasons, which did not deny Jackson equal protection, for the State’s remaining three strikes. The prosecutor explained that he struck juror no. 10, an African-American female, because her home was burglarized twice by the same person and she failed to press charges on either occasion. Based on this, the prosecutor feared she would be too forgiving. The prosecutor struck juror no. 20, an African-American female, because she stated she thought it would be “fun” to sit on a jury and he was concerned that she did not appreciate the seriousness of the trial process. Finally, juror no. 27, a white female, was struck because she previously sat on a criminal jury that did not reach a verdict and the prosecutor was concerned over what role she may have played in the jury’s failure to reach a verdict.

Because the record shows that these were legitimate race- and gender-neutral reasons that did not deny Jackson equal protection, and giving great deference to the trial court as we must, we do not find that the judge’s rulings as to any of the peremptory strikes by the prosecutor were clearly erroneous.

Decided February 6, 1996.

David L. Whitman, for appellant.

Lewis R. Slaton, District Attorney, Kirby Clements, Jr., Carl P. Greenberg, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


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    A95A2412.
    THE STATE v. WILLIAMS.
    (469 SE2d 261)
   Ruffin, Judge.

Gregory Williams was indicted for possession of marijuana with intent to distribute. The State appeals from the trial court’s order granting Williams’s motion to suppress. For reasons which follow, we affirm.

Viewed in a light to support the trial court’s ruling, the evidence showed that Officers Ethridge and Sapp stopped two cars, one for a broken taillight and the other for no license plate. While Ethridge tended to the car with no tag, Sapp watched the other car which contained Williams and his co-defendant, Flemming Martin. When Ethridge finished with the first car, Sapp told him that he saw the driver of the second car hand the passenger “money and something else” and the passenger put what he had been handed in his pocket. Ethridge then removed the passenger, Williams, from the car and asked what he had been handed by the driver, Martin. Ethridge also asked whether Williams was carrying a weapon, and Williams responded that he was not. Ethridge testified that fearing for his safety, he then patted down Williams for weapons. While doing so, Ethridge felt an object “like a bag with something in it” in Williams’s pants pocket and asked Williams what it was. Williams responded that it was only money. Ethridge testified that he “knew there was something in there other than money” and that “for everybody’s safety” he therefore handcuffed Williams. Ethridge then reached into Williams’s pocket and pulled out money and a clear plastic bag containing marijuana.

Ethridge admitted that during the pat-down, he did not feel anything that felt like a typical weapon such as a knife, gun, stick, pepper spray, or mace. When asked whether he felt anything that felt like an atypical weapon, Ethridge responded, “I didn’t know. When I felt the object in the pants pocket, I knew it was not a knife or a gun. I didn’t know what it was. I knew it was something more than money. ... I could tell ... by palpating that there was something else in the pocket, and . . . him saying there was only money in the pocket, made me very anxious and very concerned that it might be a weapon.”

1. The State never argues that the motion to suppress should have been denied because Ethridge’s continued search was authorized as a protective weapons search under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). Rather, citing Minnesota v. Dickerson, 508 U. S. __ (113 SC 2130, 124 LE2d 334) (1993), it argues that the seizure of the plastic bag was valid because its contraband nature was readily apparent to Ethridge. We disagree.

In Dickerson, the Supreme Court held that the “plain feel” corollary to the “plain view” doctrine allows an officer to seize contraband which is plainly identified through the officer’s sense of touch during a valid Terry pat-down: “If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.” (Emphasis supplied; footnote omitted.) Id. 124 LE2d at 346. Applying these principles to the particular facts of the case, however, the Supreme Court in Dickerson “found that the officer had overstepped the bounds of a Terry patdown by squeezing, sliding, and manipulating the object in the suspect’s pocket before identifying it, even after determining that the pocket contained no weapon. [Cit.]” Seaman v. State, 214 Ga. App. 878, 879 (2) (449 SE2d 526) (1994).

In this case, Ethridge maintained alternatively that he searched Williams’s pocket because he was concerned that the unidentified object which felt like a bag could be a weapon and because it could “possibly” be contraband. With respect to the possibility of contraband, Ethridge testified that he “really couldn’t tell” what kind of contraband it might be. Even after palpating and feeling Williams’s pocket, Ethridge testified that “[a]ll I could tell was basically that it was something in a bag. Before I reached in . . . his pocket, I felt. . . it again and I could pretty well tell that it was not crack cocaine or the feel of crack cocaine, that it was a bag and that there was something in it. I did not know if it would be marijuana or cocaine or heroin or what it might be.”

Taking this testimony at face value, we find that the object’s contour did not make its identity immediately apparent to Ethridge, even after he palpated Williams’s pocket. Accordingly, his continued exploration of Williams’s pocket was not authorized under the plain feel doctrine or Dickerson. And although the State never argues that the continued search was authorized as a protective weapons search under Terry, to the extent the trial court found that explanation unconvincing, such was not clearly erroneous given that Williams was handcuffed and that Ethridge conceded that the object did not feel like a knife, gun, stick, or mace, but rather like a plastic bag, thereby making his continued exploration of the pocket unrelated to the sole justification of a protective Terry search.

Decided February 6, 1996.

John R. Parks, District Attorney, Richard E. Nettum, Assistant District Attorney, for appellant.

Mark G. Pitts, for appellee.

2. The State contends the motion to suppress should have been denied under the totality of the circumstances because there was probable cause to arrest and search Williams. Specifically, the State argues that based on Sapp’s testimony, the marijuana was in plain view. Sapp testified that when he and Ethridge approached Williams and asked what the driver had given him, Williams replied money and pulled from his pocket a wad of money which had a small zip lock bag protruding. Ethridge, however, never testified to this version of events.

Whether the plastic bag or the marijuana in it was ever in the plain view of Sapp was an issue of fact for the trial court. “When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) State v. Foster, 209 Ga. App. 143, 144 (433 SE2d 109) (1993). Because there was sufficient evidence to support the trial court’s order, we find no error.

Judgment affirmed.

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