author: MlKELL, Judge.

text:
    A02A0961.
    HILL v. THE STATE.
    (570 SE2d 395)
   MlKELL, Judge.

On July 14, 1997, Mark A. Hill pleaded guilty to two counts of aggravated assault and one count of false imprisonment. He also pleaded guilty to entering an automobile, with which he was charged in a separate accusation. The trial court sentenced him as a recidivist to a total of twelve years confinement, comprised of concurrently running sentences of twelve years for each of the two counts of aggravated assault, twelve years for the false imprisonment charge, and five years for entering an automobile. Almost three years later, on July 10, 2000, Hill, acting pro se, filed a “Motion to Void Convictions/ Judgments Pursuant to OCGA § 17-9-4 and Article VI Supremacy Clause.” When no order was entered on the motion, Hill filed a petition for a writ of mandamus on September 26, 2001, seeking to compel a decision. That same day, the trial court entered an order granting Hill’s petition for a writ of mandamus and his request to proceed in forma pauperis and an order denying Hill’s motion to void his convictions. Hill filed what appears to be a second mandamus action essentially seeking a hearing and a motion for reconsideration, both of which were denied on October 17, 2001.

On October 25, 2001, Hill filed a notice of appeal to the Supreme Court, challenging the trial court’s orders denying his motion to void convictions, motion to compel production of “all documents of the district attorney,” and his second petition for a writ of mandamus. The Supreme Court dismissed the appeal of the mandamus action, because Hill filed a direct appeal rather than an application, and transferred the remainder of Hill’s appeal to this Court. We affirm the judgment of the trial court denying Hill’s motion to void his convictions. However, we vacate Hill’s sentence and remand the case for resentencing consistent with this opinion.

Prior to the entry of Hill’s guilty pleas, the prosecutor recited the following facts to the trial court: On the night of October 12, 1996, around 11:40 p.m., two employees of Longhorn Steakhouse witnessed Hill inside a parked car belonging to another employee of the restaurant. When the two witnesses yelled at Hill, he exited the vehicle, jumped into a red car, and drove away. The witnesses wrote down the license number of the red car and reported the incident to the police. They subsequently identified Hill from a photographic lineup. Approximately one hour after being observed in the Longhorn Steakhouse parking lot, Hill approached Marsha Corley in the parking lot of a bar. Corley accepted Hill’s offer of a ride and got into the red car. He drove her to a nearby school parking lot, tore her clothing off, and beat her. Corley managed to open a car door and scream. A school detective heard her scream and approached the parking lot. Hill fled the scene. The detective observed that Corley had blood all over her head and body. Hill was arrested 20 minutes later at a nearby carwash, covered in blood. Corley positively identified him as her attacker.

Hill, who was represented by counsel, did not object to the state’s recitation of the facts. Further, Hill testified that he was in fact guilty of the charges and that he was satisfied with the services of his counsel.

1. Hill contends that the trial court erred in denying his “Motion to Void Convictions/Judgments pursuant to OCGA § 17-9-4 and Article VI Supremacy Clause.” We disagree.

In Thompson v. State, 274 Ga. 818 (559 SE2d 730) (2002), the Supreme Court considered a pro se motion with a nearly identical title. The Court recognized that “[l]ooking at the substance of the motion rather than its nomenclature, the filing was actually a motion to withdraw a guilty plea.” Id. In Thompson, as in the case sub judice, the appellant filed the motion three years after entering a guilty plea. The Court concluded that the motion was untimely because it was filed after the term of court in which the plea was entered and held that the trial court did not err in dismissing the motion. Id. Accord Downs v. State, 270 Ga. 310 (509 SE2d 40) (1998) (“court’s jurisdiction to consider a motion to withdraw a guilty plea ended with the . . . term of court in which the judgment of conviction was rendered, and . . . the motion must be dismissed”). Thus, to the extent that Hill’s motion was in fact an attempt to withdraw his guilty plea, the trial court lacked jurisdiction and should have dismissed it.

However, in addition to essentially seeking to withdraw his guilty plea, Hill’s motion also challenged the validity of the indictment and the accusation. Hill contends that both the indictment and the accusation were defective because they did not cite the Code provisions defining each offense. Contrary to Hill’s argument, the trial court properly concluded that the state was not required to specify the statute the defendant allegedly violated. “It is the description of the crime, rather than the description and number of the section under which it appears in the Code which furnishes the criterion for determining whether the indictment is good.” Curtis v. State, 80 Ga. App. 244, 246 (1) (b) (55 SE2d 758) (1949). Accord Rank v. State, 179 Ga. App. 28 (1) (345 SE2d 75) (1986). The indictment and accusation sufficiently described the charges against Hill. Compare Smith v. Hardrick, 266 Ga. 54, 56 (3) (464 SE2d 198) (1995) (indictment was so fundamentally flawed as to charge no crime at all). Accordingly, the trial court did not err in denying Hill’s motion to void his convictions on this ground. Further, contrary to Hill’s argument, the trial court was not required to conduct a hearing on the motion, as the issues raised could be resolved through consideration of the record.

2. In connection with his motion to void his convictions, Hill also argued that the two aggravated assault charges and the false imprisonment charge merged because they “[arose] out of the same facts and the same alleged victim.” We reject Hill’s argument that the false imprisonment charge merged with the aggravated assault charges but find some merit in Hill’s claim that the two counts of aggravated assault merged.

“The key question in determining whether offenses have merged is whether the different offenses are proven with the same set of facts.” Johnson v. State, 247 Ga. App. 157, 162 (10) (543 SE2d 439) (2000). See also OCGA § 16-1-7 (a); Kinney v. State, 234 Ga. App. 5, 7 (2) (505 SE2d 553) (1998). The first count of aggravated assault alleged that Hill “did make an assault on the person of Marsha Corley with the intent to rape the said Marsha Corley.” The second charge of aggravated assault alleged that Hill “did make an assault on the person of Marsha Corley with his hands and fists, objects which when used offensively against said person, were likely to result in serious bodily injury.” The state concedes that the two aggravated assault charges should have merged for sentencing, as the same facts proved the two offenses. We agree. Accordingly, we vacate Hill’s sentence and remand the case to the trial court for resentencing. See Harris v. State, 274 Ga. 835, 836 (2) (561 SE2d 73) (2002). As a practical matter, we recognize that this will not affect the duration of Hill’s confinement, as the court imposed concurrent sentences.

Additionally, although this was not raised on appeal, the state has brought to our attention the fact that Hill’s twelve-year sentence for false imprisonment exceeds the ten-year maximum sentence for that offense. OCGA § 16-5-41 (b). Thus, on remand, the trial court should resentence Hill to a term of ten years or less on the false imprisonment charge.

3. Next, Hill assigns error to the trial court’s denial of his motion to compel production of “all documents of the district attorney.” Hill’s motion was filed in connection with his mandamus action, as demonstrated by its civil action number and the fact that it named the same respondents. Because the Supreme Court dismissed Hill’s appeal of all orders entered in the mandamus action, this issue is not properly before us.

4. Finally, Hill has enumerated an additional error in a supplemental brief filed almost three months after his original appellate brief and enumeration of errors were filed. He contends that he was denied the effective assistance of counsel. We are precluded from considering this claim.

“An enumeration of error may not be amended after the original filing time has expired.” Parham v. State, 166 Ga. App. 855, 856 (2) (305 SE2d 599) (1983). Accord Getty v. State, 202 Ga. App. 490, 491 (2) (415 SE2d 29) (1992) (appellant cannot file an additional enumeration of error in a supplemental brief after original filing time has expired). Court of Appeals Rule 22 (a) provides that “the enumeration of errors . . . shall be filed within 20 days after the case is docketed.” See also OCGA § 5-6-40. Hill’s appeal was docketed on January 11, 2002, and his supplemental brief containing the additional error was filed on April 17, 2002. Thus, the amended enumeration of errors was filed well outside of the original filing time.

Further, our Rule 24 states that “[supplemental briefs may be filed only by leave of the Court.” Hill failed to request such leave. Court of Appeals Rule 26 (c) permits an appellant to file a reply brief within 20 days of the date of filing of the appellee’s brief. In this case, the state filed its brief on February 14, 2002, and Hill filed his supplemental brief on April 17. Therefore, even if we construe Hill’s supplemental brief as a reply brief, he failed to file it within the required time.

Judgment affirmed. Sentence vacated and case remanded for resentencing.

Andrews, P. J., and Phipps, J., concur.

Decided August 20, 2002.

Mark A. Hill, pro se.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

       Hill was represented by counsel at the time of his guilty plea and sentencing.

       OCGA § 16-5-21 (a) (1).

       OCGA § 16-5-21 (a) (2).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A02A0998.
    PAUL v. THE STATE.
    (570 SE2d 399)
   Mikell, Judge.

A Liberty County jury found Delores S. Paul guilty of armed robbery. She appeals, claiming that she received ineffective assistance of counsel. We disagree and affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. So viewed, the evidence shows that 86-year-old Molly Ashmore drove to a Wal-Mart store on the morning of January 19, 2001. Paul parked next to Ashmore. Ash-more went into the store and returned to her car pushing a buggy. As Ashmore reached her car, Paul confronted her with a steak knife and threatened to kill Ashmore if she did not give Paul her money. Paul grabbed Ashmore’s pocketbook, which contained $300 in traveler’s checks and $240 in cash, ran back to her car, and drove out of the Wal-Mart parking lot at a high rate of speed.

Michael Wilkinson saw a white car speed out of the Wal-Mart parking lot and, thinking that it might be stolen, followed the car until the area of Hack’s Pasture Hunting Club, where he stopped and called police. Off-duty detective Rick Baatz heard over his radio that police were looking for an armed robbery suspect last seen in the area of Hack’s Pasture Hunting Club. Baatz went to the area of the hunting club and was flagged down by Paul, who told him that someone had been chasing her, and that her car had gotten stuck in the mud. After additional officers arrived at the scene, Baatz looked around the area and found a purse containing traveler’s checks bearing Ashmore’s name. He also found a note which read: “This is a robbery. Put the money in the bag. Don’t give me bait or a dye pack.” Police found a steak knife in Paul’s car and Ashmore’s traveler’s checks in Paul’s purse, along with two watches and a gold $1 coin consistent with items that Ashmore had told police were in her purse. The police arrested Paul and informed her of her Miranda rights. She signed a Miranda rights waiver form. She then confessed to robbing Ashmore.

Decided August 20, 2002.

Gardner & Weathers, Joseph D. Weathers, Chestley N. Merritt, for appellant.

J. Thomas Durden, Jr., District Attorney, Mark A. Hendrix, Assistant District Attorney, for appellee.

Paul’s only claim on appeal is that she received ineffective assistance of counsel. “In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” Paul argues that she received ineffective assistance of counsel because she received no measurable defense. Our review of the record shows that this was not the case. The strategy of the defense was to show that the State could prove robbery, but not armed robbery. This was a reasonable professional strategy considering the overwhelming evidence that Paul stole Ashmore’s pocketbook. In defense counsel’s cross-examination of Ashmore, he elicited testimony indicating that Ashmore believed that Paul was bluffing and did not intend to hurt her, that she did not hand her purse over to Paul under threat from the knife, and that Paul finally snatched Ash-more’s purse from behind. Paul’s counsel was ultimately unsuccessful in convincing the jury to return a verdict of robbery, as opposed to armed robbery, but he was not ineffective.

Paul also argues that her defense counsel failed to introduce evidence that she was a recent employee of a large bank, and that she was suffering from postpartum depression. Even if her trial counsel could have introduced this evidence, it was not central to Paul’s defense, and we will not second-guess trial counsel’s decision not to do so.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

        Chapman v. State, 273 Ga. 348, 349-350 (2) (541 SE2d 634) (2001).

        Reed v. State, 248 Ga. App. 107, 109 (1) (a) (545 SE2d 655) (2001).


text:
    A02A1039.
    SMITH v. THE STATE.
    (570 SE2d 400)
   MlKELL, Judge.

A jury found Mark Anthony Smith guilty of one count of aggravated child molestation, three counts of child molestation, and one count of first degree cruelty to children based on acts committed against a nine-year-old boy. Smith was acquitted of three similar charges relating to a five-year-old girl. He appeals from the denial of his motion for new trial, contending that the trial court erred in (1) refusing to grant him funds to hire an investigator to locate a witness, (2) denying his motion in limine to exclude evidence of his sexual relations with the children’s mother, (3) admitting videotaped statements that had not been produced before trial, (4) failing to find that his trial counsel was ineffective, and (5) permitting two witnesses to bolster the credibility of the male victim. Finding no error warranting reversal, we affirm.

1. Smith first argues that the trial court erred in refusing to grant him funds to hire an investigator to locate a necessary witness, Barbara Moore, the mother of the two alleged victims. Trial counsel testified at the hearing on Smith’s motion for new trial that the court denied his in-camera motion to hire an investigator to find her. However, the record does not support counsel’s testimony. On October 27, 2000, approximately two weeks before trial, the court issued an order granting the defense leave to proceed ex parte, in camera, and on a sealed record with regard to any requests for funds for expert and investigative assistance. The record contains no additional motions filed by the defendant to obtain funds to hire an investigator. Nor did trial counsel raise the issue of the necessity of funds when he requested a continuance at the calendar call six days before trial or during trial itself. In fact, according to the prosecutor, the state sought Moore as a witness, had issued warrants for arrest, and had been searching for her for three weeks prior to trial.

Finally, Smith has failed to demonstrate that Moore’s testimony was essential to his defense. Although Moore was located to testify at the hearing on the motion for new trial, her testimony seemed largely incoherent. She told the court that she had been on two or three prescription medications for thirteen years and suffered significant memory loss. “The grant or denial of a motion for funds to employ an investigator lies within the sound discretion of the trial judge and his findings will not be overturned on appeal in the absence of a showing of an abuse of discretion. We have found no abuse of discretion.”

2. Smith next asserts that the trial court erred in denying his motion in limine to exclude evidence that a teacher observed Smith and Moore engaged in sexual relations in their home. We agree but conclude that the error was harmless beyond a reasonable doubt.

The record shows that Smith was living with Moore and the children when the incidents for which he was indicted occurred. The male victim’s teacher, Anna Moates, testified that the child was a disciplinary problem. According to Moates, one day he behaved so violently toward her that she and the assistant principal decided to take him home. Upon arriving at the home, Moates knocked on the door, but no one answered, so the child opened the door and went in. Moates testified that she looked into the room and saw Smith and Moore naked, having sex. She also stated that the child simply walked around them.

Smith sought to exclude this testimony on the grounds that it was irrelevant, prejudicial, and improperly placed his character in issue. The state argued that the testimony was relevant to show that there were “absolutely no boundaries in this household.” The trial court acknowledged that the evidence was “somewhat prejudicial” but nevertheless ruled it admissible.

“Generally, unless a defendant opens the door with evidence of his good character, bad character evidence is inadmissible.” Testimony that Smith and Moore were having sex while the children were absent from the home was neither relevant nor admissible for any proper purpose; rather, in our view, it was intended to show Smith’s bad character. Moreover, Smith had not placed his character in issue prior to this testimony. Accordingly, the trial court erred in denying the motion in limine as well as Smith’s objection to the testimony at the time it was offered. However, we find the error harmless in light of the overwhelming evidence that Smith committed the crimes at issue against this child.

The little boy testified that Smith put his penis in the child’s bottom, touched the child’s penis, and made the child touch Smith’s penis. A paraprofessional at the child’s school testified that she was unable to get him to sit down. When she asked him about it, the child responded that his bottom hurt because “Mark had messed with him.” The paraprofessional took the child directly to Moates, who asked him whether anyone else had touched him this way. The child said no, only Smith. A pediatrician who examined the child testified that his anal sphincter was abnormally stretched out and that he had bowel problems, conditions consistent with sexual abuse. Finally, a social worker and a therapist testified that the child described the abuse to them. Given the overwhelming evidence of his guilt, Smith is not entitled to a new trial based on the erroneous admission of bad character evidence.

3. Smith contends the trial court erred in denying his request for continuance based upon the state’s alleged discovery violations. We disagree.

At the call of the calendar, Smith, who had demanded a speedy trial, stated that he intended to withdraw his demand and asked for a continuance. Smith complained that he had not been provided with videotapes or transcripts of the victims’ statements. The prosecutor objected to continuing the case because of the strain on the children and the difficulty of locating them. The prosecutor stated that the children had been moved repeatedly since being placed into foster care. She also claimed that the videotapes were in the state’s file and defense counsel had not sought to review them, a claim which counsel vigorously disputed.

A trial court’s ruling on a motion for continuance is within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of that discretion. In the instant case, we conclude the trial court did not abuse its discretion by refusing to grant a continuance. The calendar call was held six days before trial, giving counsel ample time to review the state’s file. Moreover, counsel has not demonstrated how he would have benefitted by additional preparation time. Finally, contrary to Smith’s argument, the state was not required to serve him with transcripts of the videotapes. OCGA §§ 17-16-4 (a) (3) and 17-16-7 “require[ ] only that the State make [such evidence] available for inspection, copying, or photographing, not that such [transcripts] be served upon the defendant.”

In any event, Smith cannot show harm resulting from his alleged inability to review the videotapes before trial. When the state sought to introduce the videotapes into evidence, the trial court ruled that trial counsel would be permitted to review them overnight and to recall the alleged victims for cross-examination. By permitting the inspection of the videotapes, the trial court complied with OCGA § 17-16-6. Moreover, after reviewing the tapes, trial counsel chose to recall only the little girl. Cross-examination of that witness proved successful, as Smith was acquitted of the charges relating to her. It is well settled that harm as well as error must be shown to warrant reversal. Smith is not entitled to a new trial based on any alleged discovery violation.

4. Smith next alleges that his trial counsel was ineffective in two respects: failing to use due diligence to locate Moore to testify for the defense, and failing to object to a social worker’s testimony concerning the male victim’s veracity. In addition, Smith contends that the admission of the social worker’s allegedly objectionable testimony requires reversal of his conviction under the plain error rule. We reject each of these contentions.

In order to prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that the deficient performance was prejudicial, i.e., that there was a reasonable probability that the outcome of the trial would have been different but for counsel’s deficiencies. The trial court’s ruling that trial counsel was not ineffective will be affirmed unless clearly erroneous.

(a) Trial counsel testified that he subpoenaed Moore’s records from the Department of Family & Children Services and contacted some of her family members as well as her current boyfriend. The boyfriend indicated that Moore would evade any subpoena. According to trial counsel, he and Smith’s father then spent an entire day searching for Moore, going to several locations that she was believed to frequent. The lengths to which Moore went to evade process are evidenced by the fact that the state was unable to locate her despite three weeks of searching. We hold that trial counsel’s failure to locate her cannot be deemed ineffective assistance.

(b) Smith’s second claim of ineffectiveness relates to the testimony of Lisa Ellis, a licensed clinical social worker. Ellis interviewed the male victim and testified at length concerning her assessment of him. She testified that he exhibited sexually predatory behavior toward other children, which was consistent with a child who had been sexually abused. Ellis then recounted in detail the sexual acts the child told her he had committed against numerous other children. In addition, Ellis testified, the child relayed how . Smith “touched me with his hand and with his private part here,” pointing to his buttocks area, as well as “put his mouth on my private parts.”

The prosecutor then asked the witness the following question: “And in your talking with [the child], did you ever feel like he had made this story up just to get more control?” Ellis responded that she did not because

his affect was congruent with what he was saying. He’d become very upset and very emotional. He remained consistent and he looked like a child — like a nine-year-old functioning at his level, in my experience, should look like. I mean, he looked very genuine.

Smith claims this testimony was objectionable as either expressing an opinion on the ultimate issue in the case or bolstering the victim’s credibility. “Normally, a party may not bolster the veracity of its own witness until the witness has been impeached by the adverse party.” However, the state is permitted to rehabilitate a witness whose credibility has been attacked. That is what occurred in the case at bar. Trial counsel testified that the main defense strategy was to attack this victim’s truthfulness, a strategy counsel employed throughout the trial. Accordingly, the testimony complained of was admissible to rehabilitate the victim’s credibility, and trial counsel was not deficient in failing to object to it.

5. Finally, Smith asserts that the trial court erred in allowing a therapist, Sandra Gardner, to testify over objection that in her opinion, the male child was not sophisticated enough to fabricate “a story about someone just to get that person in trouble.” Again, Smith claims that the admission of this testimony was reversible error because it impermissibly bolstered the victim’s credibility. For the reasons stated in Division 4 (b), we disagree. As Smith’s trial strategy was to attack the victim’s veracity, and he had repeatedly done so, Gardner’s testimony was properly admitted to rehabilitate the child’s credibility.

Judgment affirmed.

Andrews, P. J, and Phipps, J., concur.

Decided August 20, 2002

Kathleen J. Anderson, for appellant.

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

       The record reflects that on October 26, 2001, the trial court ordered the county to reimburse $105 to an investigator for the defendant. Although the state argues that the order demonstrates that the trial court granted a pretrial request for investigative assistance, the order is dated one day after the hearing on the motion for new trial, and appellate counsel claims in a reply brief that she hired the investigator to locate Moore to testify at the hearing. We thus decline the state’s invitation to consider the October 26 order as evidence that a pretrial request for funds was granted.

       (Citation and punctuation omitted.) Thompkins v. State, 181 Ga. App. 158 (1) (351 SE2d 475) (1986).

       Woods v. State, 235 Ga. App. 894, 896 (510 SE2d 848) (1999); OCGA § 24-9-20 (b).

        Duke v. State, 256 Ga. 671, 672-673 (1) (352 SE2d 561) (1987), overruled on other grounds, Renner v. State, 260 Ga. 515, 518 (3) (b) (397 SE2d 683) (1990). See also Simpson v. State, 271 Ga. 772, 774 (1) (523 SE2d 320) (1999) (in prosecution for sexual offenses, sexually explicit material inadmissible merely to show defendant’s interest in sexual activity).

        Howard v. State, 233 Ga. App. 724, 729 (5) (505 SE2d 768) (1998); Parker v. State, 226 Ga. App. 462, 464 (5) (486 SE2d 687) (1997).

        Gentry v. State, 255 Ga. App. 255, 256 (2) (564 SE2d 845) (2002). See OCGA § 17-8-22.

       Id.

        Lawson v. State, 224 Ga. App. 645, 647-648 (3) (481 SE2d 856) (1997) (interpreting OCGA § 17-16-4 (a) (1)).

        Evans v. State, 233 Ga. App. 879, 880 (2) (506 SE2d 169) (1998).

        Abney v. State, 240 Ga. App. 280, 282-283 (3) (523 SE2d 362) (1999).

       Id. at 283.

       Id.

        State v. Braddy, 254 Ga. 366, 367 (330 SE2d 338) (1985), citing Hamilton v. Conyers, 28 Ga. 276 (1859).

        Nance v. State, 272 Ga. 217, 222 (5) (526 SE2d 560) (2000); Reed v. State, 248 Ga. App. 107, 110 (2) (545 SE2d 655) (2001).

       Id.


text:
    A02A1196.
    In the Interest of R. N. R. et al., children.
    (570 SE2d 388)
   Mikell, Judge.

The mother of R. N. R., R. E. R., M. R., and C. C. appeals the juvenile court’s order authorizing the Clayton County Department of Family & Children Services (the Department) to cease its efforts to reunify the children with the mother. The juvenile court found by clear and convincing evidence that reasonable efforts to reunify the family would be detrimental to the children because the mother had physically neglected them. Finding no error, we affirm the court’s order.

1. The mother first argues that the Department presented insufficient evidence to support the juvenile court’s order. We disagree.

In order to approve the Department’s recommendation that a reunification plan is not appropriate, a juvenile court must determine by clear and convincing evidence that reasonable efforts to reunify a child with his or her family will be detrimental to the child. OCGA § 15-11-58 (h). On appeal from the juvenile court’s order, this Court “neither weighs the evidence nor determines the credibility of witnesses; we defer to the juvenile court’s factfinding and affirm unless the appellate standard is not met.”

The evidence adduced in the instant case shows that at the time of the hearing, M. R. was seven years old, twins R. N. R. and R. E. R. were three years old, and C. C. was four months old. Constance Moore, a case manager, testified that the Department became involved with the family shortly after the birth of C. C. When the baby’s father brought the other three children to the hospital to visit their mother, a nurse commented that she did not realize that the mother had two other babies. When the mother replied that the twins were over two years old, the nurse contacted the hospital social worker, who called the Department.

The children were removed from their mother’s custody two days later. The twins weighed only 13 pounds each. Adrianne Hudson, a child protective services investigator, testified that the hospital staff described all three children as “extremely underweight, . . . lethargic, ashen.” Indeed, photographs of the three eldest children taken that day and introduced into evidence depict them as severely malnourished. In particular, the twins appear emaciated, with swollen, distended stomachs and protruding ribs.

Dr. Romeo Morales, a pediatrician, testified that all three children were suffering from severe malnutrition to the point of starvation. Dr. Morales advised that if the children had continued on their course of failing to gain weight, they probably would have died. Evidence showed that the twins gained between 13 and 17 pounds within six months after they were placed in foster care. Dr. Morales recommended that they not be returned to their mother.

Dr. Morales testified that the twins had been diagnosed with delayed development as well as malnutrition. Evaluations performed when they were 30 months old showed that R. N. R. and R. E. R. were functioning as 14- and 15-month-old children, respectively. Moreover, M. R. who was nearly seven, had the bone density of a four-year-old child. Significantly, C. C., who was removed from his mother shortly after birth, suffers no developmental problems.

I. W. James, the foster mother of R. N. R., R. E. R., and C. C., testified that the twins were starving when they came into her care. She also recounted that R. E. R. could not sit up, R. N. R. could barely sit up, and neither child could talk or crawl. James testified that R. E. R. was extremely frail and had arms “like a little bird.” She said she had seven children of her own and had “never in my life seen kids like this before.” According to James, by the time of the hearing, R. N. R. could run, R. E. R. could walk, and both children had learned to talk.

The Department also presented the testimony of M. R.’s foster mother, Sharon Booker, who recounted that M. R. hoarded food and frequently vomited when she first entered foster care. In addition, although she was over six years, old, M. R. was not toilet-trained and still wore diapers. By the time of the hearing, M. R. had learned to use the bathroom and only wet herself occasionally, Booker testified.

Dr. Jeff Pipe, a licensed clinical psychologist who evaluated the mother, testified that she manifested a high level of denial of any personal problems or weaknesses and attempted to present herself as unrealistically virtuous. In fact, Dr. Pipe testified, the mother not only failed to recognize her parenting deficits, she believed that she was “so competent as a parent as to be well beyond most parents.” Dr. Pipe concluded that the mother was “not at a point” where she could attempt to improve her parenting skills.

Valerie Wells, a parent aide who supervised the mother’s visits with the children, testified that the mother told the twins after they gained weight that they looked “like Sumo wrestlers.” Moore recounted that the mother told M. R. during-visits that she “must be living in Satan’s house.” According to Moore, the mother came to several visits appearing disheveled and lethargic, and she repeatedly refused the Department’s request that she undergo drug testing.

The mother claimed that she never denied food to the children. In fact, she testified that she fed them adequately. She attributed the twins’ appearance to their prematurity and low birth weight. The mother also claimed she was told that the twins would not grow as quickly as other babies because they had been on a ventilator. Moreover, she alleged that the twins were able to sit up and crawl when they were taken from her custody. She admitted that she had not taken them to the doctor for two years, claiming that she lacked transportation. However, the mother subsequently testified that she continued to obtain medical care for herself, to treat lupus.

The evidence recited above amply supports the juvenile court’s decision to grant the Department’s motion for nonreunification. As stated earlier, OCGA § 15-11-58 (h) provides that reunification services should be terminated when efforts to reunify a child with his or her family would be detrimental to the child. In addition, the statute establishes a presumption that reunification services should not be provided if the juvenile court finds by clear and convincing evidence that any of the grounds for terminating parental rights exist. One of the grounds for terminating parental rights is physical neglect of the children. In the case at bar, evidence of the children’s starvation coupled with the mother’s complete denial of responsibility for their emaciated condition amply supports the juvenile court’s findings that the mother physically neglected the children and that reunification would be detrimental to them.

2. The mother next Contends that the juvenile court’s failure to enter an order incorporating the Department’s reunification plan violated her due process rights by effectively denying her the opportunity to challenge or appeal such a plan. This argument is meritless. The juvenile court recognized that the plan was never court-ordered because the mother and grandmother requested three continuances on the disposition of the plan. It is a well-settled appellate rule that one cannot complain of errors or rulings which his own conduct procured or aided in causing. Even if the error were not waived, the mother cannot demonstrate that she was harmed by the juvenile court’s failure to enter an order approving the plan because the court stated that it would not consider the plan in determining whether to grant the Department’s motion for nonreunification.

Decided August 20, 2002.

Edward R. Downs, Jr., for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Foster & Foster, Donald R. Foster, Stephanie B. Hope, for appellee.

3. Finally, the mother argues that the juvenile court deprived her of her right to be free from unreasonable governmental seizure of her minor children by requiring her to sign a reunification plan. As noted in Division 2, however, the court’s order was not based on the plan or the mother’s failure to comply with it. Accordingly, this enumeration is meritless.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

       See In the Interest of J. P., 253 Ga. App. 732, 735 (560 SE2d 318) (2002).

        In the Interest of R. U., 239 Ga. App. 573, 577 (1) (521 SE2d 610) (1999).

       See In the Interest of K. M., 240 Ga. App. 67-68 (522 SE2d 667) (1999).

       OCGA § 15-11-58 (h) (3).

       OCGA § 15-11-94 (b) (4) (B). See In the Interest of J. L. K., 245 Ga. App. 860, 861 (539 SE2d 507) (2000).

        Weldy v. State, 239 Ga. App. 849, 850 (2) (521 SE2d 858) (1999); Wallace v. Swift Spinning Mills, 236 Ga. App. 613, 617 (2) (511 SE2d 904) (1999).


author: Blackburn, Chief Judge.

text:
    A02A1298.
    CLEMONS v. THE STATE.
    (574 SE2d 535)
   Blackburn, Chief Judge.

Following a jury trial, Kelvin Clemons appeals his conviction for one count each of trafficking in cocaine, trafficking in methamphetamine, possession of cocaine, and possession of methamphetamine. Clemons contends that the trial court erred by: (1) denying his motion to suppress; (2) reinstating two jurors struck by defense counsel; (3) admitting evidence from a civil forfeiture proceeding; and (4) admitting evidence from a co-defendant’s videotaped police interview. For the reasons set forth below, we affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Clemons] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The ver-diet must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Bradley v. State.

Viewed in this light, the record shows that, on November 30, 1999, the DeKalb County Police drug hotline received an anonymous telephone call. The female voice on the recording stated that Clemons resided at 6265 Marbut Farm Trail and was dealing in kilogram amounts of cocaine. DeKalb detectives verified that Clemons owned the house at Marbut Farm Trail and began surveillance of the house.

On May 2, 2000, police received information from a jail inmate that Clemons received two deliveries of cocaine per week. The inmate described the drug transactions, relating that the drugs would be exchanged for money by a Hispanic male in a gold Ford automobile. On May 5, 2000, the detectives observed activity at the house similar to that described by the jail inmate. The gold car was stopped after leaving Marbut Farm Trail, a drug dog alerted to the trunk of the car, and upon a search, a large amount of cash was found. The driver of the car, Reynaldo Ortuno, was arrested.

The legality of this stop and the subsequent search of the car is not before us. A search warrant covering Clemons’s house was issued by a magistrate based on misinformation provided by the police concerning one of the two informants, the police surveillance, and the stop of the gold car. The officer providing the search warrant affidavit failed to disclose to the magistrate that one of the informants was a jail inmate who was seeking a deal to make bail. Rather, the magistrate was advised simply that the informant was a concerned citizen.

1. Clemons argues that the trial court erred in denying his motion to suppress as there was insufficient evidence to support the issuance of the search warrant covering his house. He asserts that the information provided to the magistrate lacked reliability because it came from an anonymous caller and a jail inmate, rather than a concerned citizen, and that there was inadequate corroboration by police of the facts related by the informants. “In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we employ the totality of the circumstances analysis enunciated in Illinois v. Gates and adopted by the Georgia Supreme Court in State v. Stephens. (Punctuation omitted.) Davis v. State.

The jail inmate had advised that shipments of illegal narcotics were delivered to the Marbut Farm Trail address twice each week by a Hispanic male driving a gold Ford car, who would enter the garage, unload the narcotics, and then load money into the Ford. The true status of the jail inmate was not disclosed until cross-examination during the hearing on the motion to suppress. At that time, the affi-ant detective admitted that the “concerned citizen” was, in fact, a jail inmate who was asking for a favor in having bail set. He further admitted that this inmate had no prior history as an informant for the police. It is the duty of police officers to be honest, open, and forthcoming when providing information upon which a magistrate must act. The veracity of all information provided by the officer is brought into question when misrepresentations are made. Such conduct is to be condemned, as it precludes the magistrate from the performance of his duty. The magistrate might well have denied the search warrant had he been aware of the true facts or of the officer’s deception.

The affidavit also stated that on November 30, 1999, an anonymous female telephoned the narcotics office answer line stating that Clemons lived at 6265 Marbut Farm Trail in DeKalb County and that he was dealing in kilos of cocaine from that location. The caller described the location of hidden compartments in the house where drugs were hidden and identified three cars that were involved in this drug activity. During the execution of the warrant, several secret compartments were found, and they contained among other items, 112 grams of methamphetamine, three parcels of cocaine weighing 3,039 grams, and several pistols as the female informant had indicated. We note that the finding of contraband cannot justify an otherwise illegal search. The reliability of an informant must be determined based on a pre-search investigation of information provided by the informant. See, e.g., Stanford v. State.

The affidavit further stated that the detective confirmed that Clemons owned the house at Marbut Farm Trail by use of public real estate tax records, and during surveillance, the cars described in the anonymous call were observed numerous times at the residence.

Lastly, the affidavit stated that on May 5, 2000, a Hispanic male driving a gold Ford Contour was observed by police entering the garage at Marbut Farm Trail, and after the car exited the garage about 30 minutes later, it was stopped by a K-9 police officer whose dog alerted to the odor of narcotics at the seam of the trunk. Cash in the amount of $62,000 was found in the trunk. Clemons, who had driven away from the house in another car, was arrested as was a third co-defendant.

[T]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In addition, the Georgia Supreme Court has cautioned attesting officers and magistrates to make every effort to see that supporting affidavits reflect the maximum indication of reliability.

(Punctuation omitted.) Eaton v. State.

As to the anonymous call received in November 1999, there are no indicia of reliability to the call.

[Vleracity and basis of knowledge are still major considerations in the probable cause analysis, and this court continues to hold that an affidavit submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.

(Punctuation omitted.) Robertson v. State.

Accordingly, officers seeking warrants should provide the magistrate with any information they have relevant to a Cl’s (confidential informant’s) reliability or motivation, including criminal records and any payments made; and in some cases, if the information is material and the affiant knowingly or recklessly omits it, suppression of the seized material could result.

(Punctuation omitted.) Hockman v. State (physical precedent only).

This Court has recognized the value of information provided by a “concerned citizen.” See Davis, supra at 37. The police officer here breached his duty to accurately inform the magistrate of the fact that the “concerned citizen” was in fact a jail inmate who was seeking bail. We have held, however, that the omission of information does not automatically warrant suppression of evidence. Brown v. State. “If any omissions on the part of the officer are offset by independent corroboration of criminal activity, then the magistrate may still have sufficient information to find that probable cause exists.” Id. This case does not, however, involve an accidental omission. It involves a knowing misrepresentation to the magistrate. This Court must determine if the search warrant was sufficiently supported.

The detective also states that he corroborated, through surveillance, that cars similar to those described by the anonymous tipster had been seen at the house. Based on the officer’s testimony, the facts provided by the jail inmate were predictive of future behavior and were information that would not have been known to the general public, i.e., the events on May 5, 2000, which were corroborated by police observation. See Robertson, supra at 70 (corroboration of facts predictive of future behavior); Edgerton v. State (corroboration of facts not known to general public). The contraband, found in the car that had just left Clemons’s house, supported the reports of drug dealing at the residence.

“Under a totality of the circumstances approach, corroboration . . . supplies an alternative basis for finding probable cause, where there are deficiencies in the showing of the informant’s veracity, reliability, or basis of knowledge.” (Punctuation omitted.) Sanders v. State. We note that trial courts can and should take action where police officers engage in the type of misrepresentation herein involved. The credibility of witnesses is for the trier of fact, rather than this Court. Here, the magistrate was deprived of the truth, and the trial judge took no action on the deception in denying the appellant’s motion to suppress. Under the standard applicable here, the trial court did not commit reversible error in its ruling on this issue.

2. Clemons also asserts the trial court erred when it reseated prospective juror nos. 9 and 11 after the State objected to defense counsel’s use of all 12 peremptory strikes against white jurors.

In Georgia v. McCollum the United States Supreme Court “[held] that the [equal protection clause] prohibits a criminal defendant from engaging in purposeful discrimination on the [basis] of race in the exercise of peremptory challenges.” When a McCollum objection is raised, the trial court must engage in a three-step process to determine if peremptory challenges were used in a racially discriminatory manner. Chandler v. State. “[T]he burden of persuading the trial court that the strikes were racially motivated rests with, and never shifts from, the opponent of the strike.” Malone v. State.

In the first step of the process, the opponent of the strike must make a prima facie showing of racial discrimination. Chandler, supra. After the proof of a prima facie case, “the proponent of the strike is required to set forth a race-neutral, case-related, clear and reasonably specific explanation for the exercise of its strikes.” Barnes v. State.

In the present case, the trial court made a finding of a prima facie case which is not disputed, and, following this finding, Clemons offered the following explanations for his strikes of juror nos. 9 and 11. Defense counsel testified that juror no. 9 was a female meteorologist whose work schedule was of concern since she worked “the 6:00 to 9:00-a.m.-shift,” she had poor rapport with counsel, the defendant did not want her on the jury, and she had been a victim of a crime. Defense counsel stated that juror no. 11, also a female, had been a party to a lawsuit and a victim of vandalism.

In the final step of the test outlined by McCollum, “[t]he opponent of a strike is not required to submit evidence which proves discriminatory intent [but] may carry its burden of persuasion by reference to the facts and circumstances surrounding the proponent’s use of its peremptory strikes.” Daniels v. State. See also Blair v. State. The State may also carry its burden of proof “by showing that similarly situated jurors of another race were not struck or that the proponent’s race-neutral reason for a strike is ‘so implausible or fantastic that it renders the explanation pretextual.’ ” Williams v. State.

Here, the State testified that: (1) striking juror no. 9 just because the defendant did not want her on the jury was not a racially neutral reason and (2) juror no. 11 appeared to be a potential juror that defense would want because she had complained about an incident in which her son had received rough treatment by a police officer, and was a long-time county resident, which was a reason defense stated for accepting another juror. The court commented that the crimes of which juror no. 11 was a victim were not related to the crimes charged in this case and asked if defense counsel had failed to strike any black prospective jurors who had been crime victims. The State testified that two African-American victims of crime had been seated by the defense.

After the State’s explanations, in the present case, the trial court found that the offered race-neutral explanations for juror nos. 9 and 11 were so implausible or fantastic that the explanations were pretextual. It is well established that a trial judge, who has the opportunity to evaluate the demeanor and credibility of the proponent of a strike, may choose to disbelieve implausible or fantastic justifications for a strike during step three of the analysis. See, e.g., Jackson v. State; McKenzie v. State. Moreover, “[a] trial court’s findings on whether the opponent of the strike has met his burden of persuasion [are] entitled to great deference and will be affirmed unless clearly erroneous.” Williams, supra. Given this deferential standard of review, the trial court did not err in its ruling on this issue.

3. Clemons also asserts that it was error for the trial court to deny his motion for mistrial based on the admission in this criminal trial of civil forfeiture proceeding pleadings related to the property seized at his house on May 5, 2000. During the testimony of one of the detectives, the State tendered certified copies of the forfeiture complaint and Clemons’s answer which had been signed and verified by him. Clemons objected to the admission of these pleadings on the basis of relevancy, but the court admitted these documents over this objection. Thereafter, the detective testified that, in his answer, Clemons claimed the house, cars, money, and everything that had been seized from the house. He also stated that Clemons had denied the drugs seized were contraband and made a claim for them.

Two days later, near the end of the State’s case, Clemons made a motion for a mistrial based on his objection to the admission of the civil forfeiture documents, stating that the documents were not relevant unless Clemons testified and waived his right to self-incrimination. Clemons had not testified during the trial. The trial court denied defense counsel’s motion for a mistrial. Defense counsel then asked the court to exclude the documents from the jury’s consideration. Upon inquiry from the court, the State chose to withdraw the exhibits so that they did not go to the jury room. Thereafter, Clemons renewed his motion for mistrial, which was again denied by the trial court. The trial court offered to provide an instruction to the jury that “evidence of some civil proceeding was introduced but it’s not going out with them because it’s not admissible.” Defense counsel asked the court to instruct the jury that “the issue of the entire civil litigation is not to be considered,” instead. The State did not agree, so no instruction about the civil exhibits was given.

Clemons is barred from claiming the trial court erred in admitting the forfeiture pleadings. “No motion for mistrial was made at the time of objection. A motion for mistrial not made at the time the testimony objected to is given is not timely and will be considered as waived because of the delay in making it.” (Punctuation omitted.) Nel v. State.

Furthermore, “[i]n order to raise on appeal contentions concerning admissibility of evidence the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver. All evidence is admitted as a matter of course unless a valid ground of objection is interposed.” Caldwell v. State. Clemons, in his original motion, raised only a relevancy objection and did not claim that admission of the forfeiture pleadings violated his right against self-incrimination. To do so more than two days later is not timely.

Assuming that Clemons had made his objection timely, the trial court has a wide discretion in determining what evidence is relevant and material. Mosier v. State. In Chester v. State, this Court upheld, over an objection for relevancy, the admission into evidence of a civil forfeiture complaint and answer for the purpose of proving ownership of the house in which a large sum of money was seized. This Court held, “[w]e have found no case holding that it is error to admit civil pleadings in a criminal action especially when the subject matter of that civil action is the same as was the case here.” Id. at 14. Furthermore, Clemons was not compelled to sacrifice his Fifth Amendment right to answer the forfeiture petition since he could have sought a stay by asserting that right under the forfeiture statute. See Jett v. State of Ga. (Beasley, J., concurring specially). Hence, this is not an instance in which a defendant is compelled to sacrifice one constitutional right for another, as was disapproved in Simmons v. United States and Culpepper v. State. In those two cases, the defendant was required to acknowledge ownership in property in order to have standing to seek a motion to suppress the evidence, and then those motion pleadings were used to prove guilt of the crime at trial. To admit the motion pleadings would have compelled the defendant to choose between his right under the Fourth Amendment of freedom from unreasonable searches versus his Fifth Amendment right against self-incrimination.

Moreover, similar to the circumstances in Chester, supra, the court found that the forfeiture pleadings were cumulative of other evidence of ownership by the defendant. In the present case, the deed to Clemons’s house and the bill of sale of his BMW were also admitted into evidence as proof of ownership. As to the items seized inside the house, “[i]n the absence of any circumstances to the contrary, a presumption arises from proof of ownership and control of premises, an automobile, or other property that the owner is in control and possession of contraband found therein.” (Punctuation omitted.) Owens v. State.

For the reasons stated above, we find no reversible error in the trial court’s ruling on this issue.

4. Clemons argues that it was error for the trial court to fail to declare a mistrial when the jury heard portions of a co-defendant’s videotaped statement that referred to criminal events which occurred prior to May 5, 2000.

Upon Clemons’s motion in limine, the State agreed to restrict any testimony from Ortuno, a co-defendant, about bringing drugs to Clemons’s house on occasions other than May 5, 2000. As the State’s witness, the co-defendant testified that he had delivered cocaine to the Marbut Farm Trail location, that he had been there before, had not seen Clemons before, but that Clemons arrived at the house on May 5, 2000, while the co-defendant was there. Thereafter, he provided testimony that conflicted with his previous statement to the police concerning Clemons. The detective who interviewed the co-defendant testified as to the inconsistencies between Ortuno’s testimony at trial and his videotaped statement on the day of his arrest. Thereafter, the videotape was admitted into evidence over Clemons’s objection that it might contain evidence of other drug transactions although it was not played. During deliberations, the jury asked to hear the tape of the co-defendant’s interview. The following portion of the tape which is in contention was translated by an interpreter to the jury, since the original interview was conducted in Spanish.

Detective: Okay. We want to know a little bit more how many times — all right. You already told us that you were carrying about two or three — okay. How many times have you gone to this place?
Co-defendant: One time and another time with Ramon.
Detective: When you went with Ramon, do you know how much you took? Do you know how much you took? Okay. Have you been to other places to take packages?
Co-defendant: No.
Detective: When you went with him, how much did he pay you to take the package?
Co-defendant: About $700.
Detective: And this time a thousand dollars and you carried — ... This time you took three kilos?

After the last question, the prosecutor, outside the presence of the jury, stated that he had instructed all witnesses including the interpreters not to mention transactions prior to May 5, 2000. The prosecutor suggested the trial court strike the above portion, which the jury had heard, and give curative instructions. Clemons moved for a mistrial based on the fact that the tape refers to prior criminal activity. The trial court denied this motion and Clemons’s request for a reading of the co-defendant’s full testimony and gave no curative instruction. The court then instructed the prosecutor to stop the tape if it looked like there was even “the vaguest possibility of going back into” the earlier testimony, and the remainder of the tape was played without any other references to other drug transactions.

It is generally within the discretion of the trial judge to determine whether to grant a mistrial based on improper character evidence. “ ‘In reviewing the trial court’s decision, an appellate court may consider the nature of the statement, the other evidence in the case, and the court’s and counsel’s action in dealing with the impropriety.’ ” Smith v. State. “A trial court’s discretion in granting or refusing to grant a mistrial should not be disturbed unless a mistrial is essential to the preservation of the right to a fair trial.” Gardner v. State.

The trial court did not abuse its discretion in this case for a number of reasons. First, due to the somewhat random nature of the questioning, the offending portion of Ortuno’s interview is manifestly unintelligible. Second, even if the jury could decipher the roundabout questions and answers, the relevant excerpt does not specifically refer to any previous drug activity by Clemons. Third, even if we were to assume that introduction of this excerpt was erroneous, the error was harmless due to the overwhelming evidence of Clemons’s guilt. See, e.g., Weems v. State.

Decided August 20, 2002

Daniel B. Kane, for appellant.

Kelvin Clemons, pro se.

J. Tom Morgan, District Attorney, Robert M. Coker, Benjamin M. First, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson, P. J, and Miller, J., concur.

        Bradley v. State, 252 Ga. App. 293 (556 SE2d 201) (2001).

        Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983).

        State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984).

        Davis v. State, 214 Ga. App. 36 (447 SE2d 68) (1994).

        Stanford v. State, 251 Ga. App. 87 (553 SE2d 622) (2001).

        Eaton v. State, 210 Ga. App. 273 (1) (435 SE2d 756) (1993).

        Robertson v. State, 236 Ga. App. 68, 69-70 (510 SE2d 914) (1999).

        Hockman v. State, 226 Ga. App. 521, 523 (1) (487 SE2d 102) (1997).

        Brown v. State, 244 Ga. App. 440, 442 (1) (535 SE2d 785) (2000).

        Edgerton v. State, 237 Ga. App. 786, 788 (516 SE2d 830) (1999).

        Sanders v. State, 252 Ga. App. 609, 612 (1) (556 SE2d 505) (2001).

        Georgia v. McCollum, 505 U. S. 42, 59 (112 SC 2348, 120 LE2d 33) (1992).

        Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996).

        Malone v. State, 225 Ga. App. 315, 318 (1) (484 SE2d 6) (1997).

        Barnes v. State, 269 Ga. 345, 349 (6) (496 SE2d 674) (1998).

        Daniels v. State, 238 Ga. App. 511, 514-515 (1) (b) (519 SE2d 269) (1999).

        Blair v. State, 267 Ga. 166, 167 (2) (476 SE2d 263) (1996).

        Williams v. State, 253 Ga. App. 458, 466 (8) (559 SE2d 516) (2002).

        Jackson v. State, 265 Ga. 897, 899 (2) (463 SE2d 699) (1995).

        McKenzie v. State, 227 Ga. App. 778, 779 (1) (490 SE2d 522) (1997).

       Nothing in the record indicates that Clemons took any action to stay the civil action until the criminal case was resolved.

        Nel v. State, 252 Ga. App. 761, 763 (3) (557 SE2d 44) (2001).

        Caldwell v. State, 247 Ga. App. 191, 198 (3) (542 SE2d 564) (2000).

        Mosier v. State, 218 Ga. App. 586 (1), 589 (3) (462 SE2d 643) (1995).

        Chester v. State, 162 Ga. App. 10, 13 (7) (290 SE2d 117) (1982).

       OCGA § 16-13-49 (w) provides: “For good cause shown, the court may stay civil forfeiture proceedings during the criminal trial resulting from a related indictment or information alleging a violation of this article.”

        Jett v. State of Ga., 230 Ga. App. 655, 658 (498 SE2d 274) (1998).

        Simmons v. United States, 390 U. S. 377 (88 SC 967, 19 LE2d 1247) (1968).

        Culpepper v. State, 132 Ga. App. 733 (209 SE2d 18) (1974).

        Owens v. State, 202 Ga. App. 785, 786 (2) (415 SE2d 704) (1992).

        Smith v. State, 235 Ga. App. 134, 138 (3) (508 SE2d 490) (1998).

        Gardner v. State, 273 Ga. 809, 812 (5) (546 SE2d 490) (2001).

        Weems v. State, 269 Ga. 577, 579 (3) (501 SE2d 806) (1998).


text:
    A02A1424.
    ODISTER v. LEACH et al.
    (570 SE2d 391)
   MlKELL, Judge.

Dewitt Odister filed a negligence action against Ernest R. Leach and Romayne R. Leach to recover damages for injuries he sustained while cutting a tree limb on the Leaches’ property. The trial court granted summary judgment to the Leaches, holding that the undisputed evidence demonstrated that Odister assumed the risk of his injuries. We agree and affirm.

Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. On appeal from the trial court’s ruling, our review is de novo, and we construe the evidence and all reasonable inferences and conclusions that may be drawn from it in the light most favorable to the nonmovant.

So viewed, the evidence shows the following. The Leaches bought three homes in Toccoa and Lawrenceville, planning to repair and resell them. On the morning of August 29, 1998, Mr. Leach was outside of one of his Toccoa homes, working in the yard. Odister was walking down the street looking for work. He approached Leach, who agreed to let Odister pick up trash in the backyard. Odister worked for several hours.

Late in the afternoon, Leach asked Odister if he would be able to remove a large oak tree limb that was hanging over the roof of the house. Odister, who had worked for a landscape construction company for ten years in the 1960s, told Leach that he knew how to operate a chain saw. According to his deposition, Odister also told Leach that he was capable of cutting the limb while on the ladder, even though his prior experience cutting limbs did not necessitate climbing a ladder. Leach deposed that he wanted to throw a rope over the limb to pull it away from the house. Odister secured the rope around the limb. He then climbed the ladder, started the chain saw, and began cutting the limb. Leach was on the ground, holding both ends of the rope. Leach testified that he thought the limb would fall straight down. Instead, once Odister cut through it, the end of the limb that had been attached to the tree flew upward over the ladder and struck Odister in the chest, knocking him to the ground. He fractured his clavicle, a vertebra, and a rib.

Odister claimed in an affidavit that he did not know that Leach would be pulling the rope as Odister was cutting the limb. However, in his deposition, Odister testified that he was aware that two large kudzu vines were hanging from the limb’s branches; that the vines, which bound the limb to another limb, would likely suspend the limb over the house; that force would have to be exerted on the limb in order to separate it from the kudzu vines and from the other limb; and that the purpose of the rope was to exert the necessary force. Moreover, Odister admitted that he saw Leach pulling the rope before Odister finished cutting the limb. Odister testified that when he saw Leach pulling the rope, “the other end was going towards Mr. Leach, but the vine was still holding it, and by the time I put my eyes back on the saw, I had cut all the way through. . . . And then before I could get anything, the limb had kicked up.” Finally, in his interrogatory responses, Odister averred that “Leach grabbed both ends of the rope and was pulling it as [Odister] climbed up the tree and cut the limb while standing on the ladder.” We find Odister’s testimony inconsistent at best concerning his knowledge of whether Leach was pulling the rope while Odister cut the limb. As no reasonable explanation has been offered for the inconsistency, we will apply the rule set forth in Prophecy Corp. v. Charles Rossignol, Inc. and construe the contradictory portion of his testimony against him.

The general rule is that “[a]n owner or occupier of land has a duty to exercise ordinary care to keep his premises safe for such persons, including workers who have been hired to work on the premises, as may lawfully come on the premises at the owner’s expressed or implied invitation. OCGA § 51-3-1.” However, an exception applies to cases involving employees hired to do work which may be considered dangerous.

The general rule of law, that it is the duty of the master to exercise ordinary care and diligence in providing a reasonably safe place of work for his servants, does not apply to a case where the very work for which the servant is employed is of such a nature that its progress is constantly changing the conditions as regards an .increase or diminution of safety. The hazards thus arising as the work proceeds must be regarded as being the ordinary dangers of the employment, . and the servant necessarily assumes them. Thus, where the injured servant was hired for the express purpose of assisting in the repair, demolition, or alteration of some instrumentality, and the unsafe conditions from which the injury resulted arose from or were incidental to the work undertaken by him, the above-stated general rule is not applicable.

The plaintiff in the above-cited case was injured while cutting down a rotten post on a bridge over a railroad track. A fellow employee of the railroad was cutting another post nearby, and it fell on the plaintiff. This Court held that by not waiting for the other employee to finish, the plaintiff failed to exercise ordinary care for his own safety.

Similarly, in Howell v. Farmers Peanut Market &c., the plaintiff was injured while removing and replacing the motor from the top of a grain elevator. The motor was caught in an opening in the roof, and the employee shouted for others to stop the hoisting of the motor so he could reposition it. When the motor was raised again, it fell and struck him. We held that the plaintiff could not blame the owner of the premises for his failure to inspect the motor while repositioning it.

The principles utilized to resolve the foregoing cases apply equally in the case at bar. Like the plaintiff in Howell, Odister’s “injury was received from a danger that would ordinarily and naturally exist in doing the work which he was employed to perform.” Odister told Leach that he had experience using a chain saw and would be able to cut the tree limb. He has only himself to blame for failing to communicate to Leach that he lacked experience cutting tree limbs while standing on a ladder. Given his past work experience utilizing a chain saw to cut tree limbs and the absence of evidence that Leach had any such experience, Odister cannot claim that Leach had superior knowledge of the dangers associated with the task. “The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property.” From his vantage point on the ladder, Odister had the opportunity to observe the kudzu vines wrapped around the. limb and to assess any danger posed by Leach’s actions. We hold that he assumed the risk of his injuries.

Decided August 20, 2002.

Willie J. Woodruff, Jr., for appellant.

Hawkins & Parnell, William H. Major III, for appellees.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

       OCGA § 9-11-56 (c).

        Dyer v. Honea, 252 Ga. App. 735, 736 (1) (557 SE2d 20) (2001).

       256 Ga. 27, 28 (1) (343 SE2d 680) (1986). See Carey v. W. R. Grace & Co., 221 Ga. App. 728, 729 (2) (472 SE2d 524) (1996).

        Howell v. Farmers Peanut Market &c., 212 Ga. App. 610, 611 (1) (442 SE2d 904) (1994).

       (Citation, omitted.) Louisville &c. R. Co. v. Dunn, 21 Ga. App. 379 (94 SE 661) (1917).

       Id. at 381.

       Id. at 382-383 (2, 3).

       Supra.

       Id. at 610.

       Id. at 611 (2).

       (Punctuation omitted.) Id.

       (Citation, punctuation and emphasis omitted.) Byrd v. Rivenbark, 183 Ga. App. 564, 565 (359 SE2d 433) (1987).


author: Ruffin, Judge.

text:
    A02A1175.
    CAMERO v. THE STATE.
    (570 SE2d 405)
   Ruffin, Judge.

A jury found Santos Camero guilty of felony theft by taking: Camero appeals his conviction, challenging the sufficiency of the evidence, the trial court’s admission of similar transaction evidence, its failure to suppress his statement to police, and the court’s ruling concerning a comment made by the prosecutor during closing argument. For reasons that follow, we affirm.

1. Viewed in a light most favorable to the jury’s verdict, the evidence showed that Camero’s conviction stemmed from a drug deal in which he was supposed to sell 500 Ecstasy pills. The deal was set up by an individual named Terry Miller. On several prior occasions, Miller had bought Ecstasy from Camero both for personal use and resale. In this instance Miller was arranging for the purchase of 500 pills for five friends who were coming to Georgia from North Carolina.

When Miller’s friends arrived in Georgia at around midnight, he brought them to an apartment complex where they met with Camero. They agreed on a price of $6,500 for the 500 pills. Because Camero needed to get the Ecstasy from another location, the North Carolina group advanced him $3,200 and agreed to pay him the balance after he produced the pills and they determined that they were real.

Two individuals from the North Carolina group, James Donovan and Cedric Watkins, accompanied by Miller, followed Camero to another apartment complex where Camero was supposed to obtain the drugs. Camero drove into the complex, and Donovan, Watkins, and Miller waited outside in another car. Approximately 20 minutes later, Miller saw Camero leaving the complex in a Montero driven by Camero’s girlfriend, Jessica Pittman. As Pittman sped away, Donovan, Watkins, and Miller followed. A high speed chase ensued, during which Donovan produced a gun and threatened to kill Miller. When both cars stopped at the same red light, Miller shouted to Camero, “they are going to kill me.” Pittman then pulled her Montero behind a stopped police car, and Watkins abandoned the chase. Pittman told the police officer that Miller had been kidnapped, and she and Camero were escorted to the police station where they gave statements to officers.

Meanwhile, at approximately 1:30 a.m., after abandoning the chase, Donovan, Watkins, and Miller met up with the rest of the North Carolina group. The group members told Miller to call somebody and get their money or they were going to kill him. They eventually took Miller to a hotel room, where he spent the evening calling his mother to arrange for the money to be delivered to a local Western Union office at 8:30 that morning. As Miller and two of the North Carolina group were leaving the hotel to pick up the money, they were met by law enforcement officers who arrested the entire group. Among the items police recovered from the hotel room where the group was staying was $600 in counterfeit currency.

While investigating the incident later that morning, Officer David Aguilar interviewed Camero. According to Aguilar, Camero admitted that he “licked” the North Carolina buyers — he never had any pills to sell them and merely intended to steal their money. Camero claimed that the money he took was counterfeit. However, a member of the North Carolina group, Mathew Burns, testified that he contributed $1,000 of his own money to purchase the drugs, that it was real money, and that he never got it back. In addition, Miller testified that he saw Donovan hand money to Camero.

Camero asserts that the evidence is insufficient to support his conviction for felony theft by taking because it did not show that he took more than $500. Camero argues that, notwithstanding Burns’ testimony that he contributed $1,000 in real currency toward the purchase money, there was no evidence that this $1,000 was part of the money that Donovan handed to him. Camero similarly argues that, although Miller testified that he saw Donovan hand Camero a “wad of money” that he thought was $3,200, Miller never counted the money, and he thus could not be sure of the amount. In Camero’s mind, these circumstances, in addition to evidence that the money found in the hotel room was counterfeit, all rendered the evidence against him insufficient to prove that he took more than $500.

Camero’s argument ignores the appellate standard of review and the evidence of his guilt.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant . . . no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. ... As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

For the jury to find that Camero committed felony theft by taking, there must have been evidence that he unlawfully took or appropriated more than $500 in property from another person and that he intended to deprive the person of that property. Viewed in favor of the jury’s verdict, the testimony of Burns and Miller established that Camero took more than $500 in money. Burns’ testimony also proved that he contributed $1,000 of the stolen money. And Camero’s own statement to Officer Aguilar showed that Camero acknowledged taking the money and that he intended to keep it. Accordingly, the evidence was sufficient under the Jackson standard.

2. In four enumerations of error, Camero asserts that the trial court erred in admitting evidence of the prior drug transactions between himself and Miller. The record shows, however, that Camero waived these assertions. Although Camero objected to this evidence at the pretrial hearing conducted under Uniform Superior Court Rule 31.3, he was required to also object when the State presented the evidence at trial. Because Camero failed to object at trial,.he has not preserved the asserted issues for appeal.

3. Camero also waived review of his assertion that the trial court erred in failing to grant a new trial based on a purportedly improper comment made by the prosecutor during his closing argument. The transcript shows that, during closing argument, the assistant district attorney stated: “Mr. Camero not only sells drugs, which was not contradicted in any fashion, only by counsel, and, again, that is not evidence. T. J. Miller said he sells drugs.” Camero’s counsel interjected, “Judge, he never gave a time. He didn’t even give a date.” On appeal, Camero contends that the prosecutor’s statement inappropriately commented on his failure to present evidence.

“Tn order to preserve an objection upon a specific ground for appeal, the objection must be made at trial upon that specific ground. Objecting on specific grounds waives the grounds not asserted.’ ” Because Camero did not raise his appellate argument he asserts at trial, he waived the argument for appeal.

4. Finally, Camero asserts that the trial court erred in admitting his custodial statement that he took the money because the statement was not freely and voluntarily made. We disagree.

Prior to trial, the court conducted a lengthy Jackson-Denno hearing to determine whether the statement was freely and voluntarily made. The evidence showed that Camero arrived at the police station at approximately 4:00 a.m. Officer Dallas Stidd, who initially interviewed Camero concerning the reported kidnapping, testified that when Camero first came to the police station, he was not under arrest, but was considered a witness because “he made the outcry that his friend had been kidnapped.” According to Stidd, after speaking with Camero, the officers “wanted him to hang around to try and help with any leads that might come up on where his friend might be.” Camero testified that, while at the police station, he did not sleep, but was “lounging at a table” and had “laid down on the carpet.”

Later that morning, after the North Carolina group was arrested, Officer Aguilar was called in to take over the investigation. Aguilar interviewed Camero, who was now suspected of participating in a drug deal, at approximately 1:00 or 1:30 p.m. Both Aguilar and Stidd testified that, before the interview, Aguilar informed Camero of his Miranda rights and that Camero appeared to understand such rights. The officers’ testimony also reveals that Camero was coherent, spoke clearly, and did not seem to be under the influence of any substances, and that no threats or promises were made to him. Although Camero agreed to talk with Aguilar and made the statement at issue here, he later asserted his right to an attorney, and the questioning ceased.

Decided August 21, 2002.

Lawrence Lewis, for appellant.

Daniel J. Porter, District Attorney, Donald P. Geary, Assistant District Attorney, for appellee.

Based on this evidence, the trial judge found that “the statement was freely and voluntarily given after a knowing and intelligent waiver of [Camero’s] rights,” and ruled it admissible at trial. Camero asserts that the court erred because the evidence showed that he was suffering from a lack of sleep and food. On appeal, however, we review the trial court’s factual findings under a clearly erroneous standard. Here, the trial court’s findings are supported by the testimony of both Aguilar and Stidd. Accordingly, the findings are not clearly erroneous and will be upheld.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       See Swanger v. State, 251 Ga. App. 182 (554 SE2d 207) (2001).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Swanger, supra.

       See OCGA §§ 16-8-2; 16-8-12 (a) (1).

       See Young v. State, 269 Ga. 478, 479 (3) (499 SE2d 60) (1998); Foster v. State, 254 Ga. App. 255, 256-257 (3) (562 SE2d 191) (2002).

       See Young, supra; Foster, supra.

        Clark v. State, 248 Ga. App. 88, 91 (3) (545 SE2d 637) (2001).

       See id.

       See Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       See Hill v. State, 250 Ga. App. 897, 905 (4) (553 SE2d 289) (2001).

       See id.


text:
    A02A1241.
    WILSON v. THE STATE.
    (570 SE2d 416)
   Ruffin, Judge.

A jury found Terrion Wilson guilty of armed robbery. Wilson appeals, challenging the sufficiency of the evidence and asserting that he received ineffective assistance of counsel. For reasons that follow, we affirm.

1. Viewed in favor of the jury’s verdict, the evidence shows that, when the robbery occurred, the victim, R. C. Green, was driving home from his job at Tift County High School. Green testified:

I was coming home and right on the corner . . . where I turn to go down to my house I slowed down real slow and my door came open. And I recognized Terrion [Wilson] who scuffled with me and pulled me out of the truck. He cut me on my hand with a knife. . . . And after I got out of the truck he snatched my pocketbook out and ran across the railroad. That’s the last time I saw him.

According to Green, although he did not know Wilson’s name when the robbery occurred, he recognized Wilson’s face. Green lived down the street from Wilson’s mother and frequently saw Wilson walking down the street.

When Green first reported the robbery, he gave a statement to Captain Brannen of the Tift County Sheriff’s Department. Green evidently told Brannen that “he did not know who robbed him.” At trial, however, Green disputed making this statement. The statement also reflected that Green described the robber as tall and heavy with a mustache. Again, however, Green denied providing that description of his assailant. According to Green, he told Brannen that he did not know the robber’s name but recognized the face, and he described the assailant as having a heavy beard.

The day after the robbery, a student approached Green at school and said, “I heard you got robbed last night. . . . [0]ld Terrion robbed you, didn’t he?” According to Green, this was when he learned the robber’s name. Later that day, Wilson went to Green’s home and told Green that he was not the robber.

The next day, Green went to the magistrate’s court to swear out a warrant for Wilson’s arrest. The magistrate referred Green to the Tift County Sheriff’s Department. Although it was Brannen’s case, he was off duty that day, and another investigator, Ray Merritt, prepared a photo array containing Wilson’s photograph. Merritt testified that he showed the array to Green and that Green quickly identified Wilson as the person who robbed him. At trial, Green again positively identified Wilson as the robber. Wilson did not testify or present any witnesses in his defense.

On appeal, Wilson asserts that the evidence was insufficient because Green’s trial testimony “was rife with contradiction and inconsistency.” Specifically, Wilson points to Green’s testimony that he recognized Wilson’s face when he was robbed, and he knew where Wilson and Wilson’s mother lived, yet he initially told Captain Bran-nen that he did not know who robbed him. Such inconsistencies, however, do not render the evidence insufficient. This is because,

[o]n appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and [Wilson] no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

The jury obviously resolved the inconsistencies in Green’s testimony, and the resulting credibility issues, in favor of finding Wilson guilty. We are not authorized to revisit such issues on appeal, and the evidence presented, though inconsistent, is sufficient to meet the Jackson standard.

2. Wilson also asserts that the trial court erred in denying his motion for new trial on the ground that he received ineffective assistance from his trial counsel. We disagree.

For Wilson to prevail on this claim, he “must show that trial counsel performed deficiently and that the result of the trial would have been different but for the deficiency.” Furthermore, “[t]here 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.” We will affirm the trial court’s decision that Wilson was afforded effective assistance unless that determination is clearly erroneous.

(a) Wilson first argues that counsel was ineffective because he failed to call an alibi witness at trial. The record shows that the trial court conducted two evidentiary hearings on Wilson’s motion for new trial. At the first hearing, Wilson was represented by new appellate counsel. Wilson’s trial attorney, Kenneth Hilyer, testified at the first hearing, but was never asked about his decision to not present an alibi witness. Wilson also testified at the first hearing, and he, too, never mentioned an alibi witness or Hilyer’s failure to call the witness.

At the second hearing, held over ten months later, Wilson was represented by yet another attorney. At this hearing, Wilson testified for the first time that, at the time of the robbery, he was at a pool hall with his cousin, Jimmy Alexander, who also testified and corroborated Wilson’s story. According to Wilson, he told Hilyer about his alibi, but Hilyer responded that he “wouldn’t need [any] witnesses.”

In contrast, Hilyer testified at the second hearing that he did not recall Wilson mentioning the name of an alibi witness. Specifically, Hilyer stated that he recalled asking Wilson if there was anyone who could corroborate the alibi, and Wilson “didn’t advise [him] of any witnesses.” Hilyer further stated that he discussed trial strategy with Wilson and that if he had “known of an alibi witness, [he] certainly would have . . . explored that.” Finally, Investigator Merritt testified at the hearing that Wilson gave a custodial statement in which he denied committing the robbery; Wilson never mentioned an alibi or an alibi witness to Merritt.

In light of this conflicting testimony, the trial court did not clearly err in denying Wilson’s claim on this ground. The court was faced with a credibility determination, and its resolution of that issue was not clearly erroneous.

(b) Wilson also asserts that trial counsel was ineffective because he failed to call Captain Brannen to impeach Green’s trial testimony that conflicted with his witness statement. At the second new trial hearing, Brannen stated that he wrote Green’s witness statement and that he read each sentence back to Green to ensure that it was accurate. Wilson claims that Brannen’s testimony would have impeached Green’s trial testimony that he knew who robbed him and the conflicting description he gave of the robber. However, the transcript shows that Hilyer extensively cross-examined Green about these inconsistencies at trial. Indeed, at the new trial hearing, Wilson’s second appellate counsel remarked that he “thought [Hilyer] did a very good cross-examination of Mr. Green.” Hilyer testified that he did not call Brannen as an impeachment witness because after Green’s cross-examination testimony, “[he] didn’t feel the need to. The point, [he] felt, had been made.”

The decision of which witnesses to call is a matter of trial strategy that we will generally not interfere with on appeal. In this case, Hilyer’s testimony reveals that he discussed trial strategy with Wilson and decided not to call Brannen because he believed he had already successfully impeached Green’s trial testimony. “This is the essence of a tactical decision and does not amount to ineffective assistance of counsel.”

Decided August 21, 2002.

Robert D. Bryan, for appellánt.

C. Paul Bowden, District Attorney, for appellee.

(c) Finally, Wilson contends that counsel was ineffective because he failed to object to evidence of Wilson’s prior convictions for recidivist purposes at sentencing. Wilson argues that counsel should have objected because the convictions arose from guilty pleas and the State failed to establish that he entered the pleas freely and voluntarily.

It is undisputed that the State timely notified Wilson of its intent to use the prior convictions at sentencing. Trial counsel testified that he discussed the pleas with Wilson, and Wilson gave no indication of a problem with any of the convictions. According to counsel, he did not object to the court’s admission of the convictions because he did not see any legal basis to support an objection. Although there is no evidence that the pleas were knowing and voluntary, copies of the pleas show that Wilson was represented by counsel, and Wilson “cites to no evidence in his appellate brief that indicates that the pleas were anything other than knowing and voluntary.” Thus, Wilson has not shown that he was prejudiced by counsel's failure to object, and this contention is without merit.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       Wilson was also indicted for aggravated assault, but the trial court granted him a directed verdict on this charge.

       See Swanger v. State, 251 Ga. App. 182 (554 SE2d 207) (2001).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Swanger, supra.

       See id.

       (Punctuation omitted.) Phillips v. State, 233 Ga. App. 557 (504 SE2d 762) (1998).

       (Punctuation omitted.) Beck v. State, 250 Ga. App. 654, 662 (8) (551 SE2d 68) (2001).

       See id. at 661-662.

       It appears that, after Wilson was appointed different appellate counsel, the court granted his motion to present additional claims and evidence concerning his claim of ineffective assistance of counsel.

        See Beck, supra. Compare Richardson v. State, 189 Ga. App. 113 (375 SE2d 59) (1988) (trial counsel did not testify at new trial hearing, and undisputed evidence showed that defendant told counsel about alibi witnesses).

       See Phillips, supra at 559.

        Lewis v. State, 249 Ga. App. 812, 817 (5) (c) (549 SE2d 732) (2001) (tactical decision not to challenge victim on omission from his statement to police). See also Williams v. State, 247 Ga. App. 99, 101 (2) (543 SE2d 408) (2000) (failure to call witnesses to bolster impeachment of victim concerning her initial statements about charged offenses).

        Wynn v. State, 228 Ga. App. 124, 128 (3) (a) (491 SE2d 149) (1997).

       See id.


author: Andrews, Presiding Judge.

text:
    A02A1433.
    THE STATE v. AYERS.
    (570 SE2d 603)
   Andrews, Presiding Judge.

The State appeals from the trial court’s order granting Maranda Ayers’s motion in limine to suppress evidence gathered after Ayers was stopped at a roadblock. The trial court found that the roadblock’s purpose was general law enforcement, which is constitutionally impermissible. We agree and affirm.

When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that a substantial basis existed for the decision. Evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous. Further, because the trial court is the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them.

Hayes v. State, 249 Ga. App. 857, 863 (5) (549 SE2d 813) (2001).

At the hearing on Ayers’s motion to suppress, the officer who set up the roadblock testified as follows: “The license safety checkpoint allows us to check mass quantities of vehicles at one location so that — and we enforce all of the laws of the state of Georgia and the county ordinances.” Defense counsel asked: “What I wanted to focus on is, is what you’re saying is that the means of enforcing the law is setting up the license checkpoint; but the purpose of the roadblock is general law enforcement?” The officer answered: “Absolutely. There’s no — there are no specific reasons that we stop and check. We check everything, license, insurance. We walk around behind and check the tag. Of course, we talk to the people.”

At another point, the officer testified:

Answer: I don’t know what you mean by setting the purpose of it. The purpose is to enforce the laws.
Question: General law enforcement?
Answer: Every law. It doesn’t matter. . . .
Question: And the primary purpose of this checkpoint was not just licenses?
Answer: That’s correct.
Question: It was general law enforcement?
Answer: It was — yes. Enforce all the laws of the state of Georgia. . . .
Question: The primary purpose of this roadblock though, if I understand —.
Answer: To enforce the laws of the state of Georgia. . . .
Question: You did not pick out any particular primary purpose other than general law enforcement?
Answer: Nope.

In light of the officer’s testimony as set out above, we conclude that there was sufficient evidence to support the trial court’s finding that the purpose of the roadblock was general law enforcement.

The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Chandler v. Miller, 520 U. S. 305, 308 [(117 SC 1295, 137 LE2d 513)] (1997). While such suspicion is not an “irreducible” component of reasonableness, [United States v.] Martinez-Fuerte, 428 U. S. [543,] 561 [(96 SC 3074, 49 LE2d 1116) (1976)], we have recognized only limited circumstances in which the usual rule does not apply. For example, we have upheld certain regimes of suspicionless searches where the program was designed to serve “special needs, beyond the normal need for law enforcement.”

Decided August 21, 2002.

Gerald N. Blaney, Jr., Solicitor-General, Emilien O. Loiselle, Jr., Jeffrey P. Kwiatkowski, Assistant Solicitors-General, for appellant.

Chestney-Hawkins Law Firm, Michael M. Hawkins, for appellee.

City of Indianapolis v. Edmond, 531 U. S. 32, 37 (II) (121 SC 447, 148 LE2d 333) (2000).

In Edmond, the Supreme Court discusses instances in which it has upheld or approved roadblocks for certain purposes, among which are: checkpoints designed to intercept illegal aliens, sobriety checkpoints to remove drunk drivers from the road, checkpoints to verify driver’s licenses and vehicle registrations, and emergency checkpoints to prevent an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route. Edmond, 531 U. S. at 37, 44. But, Edmond goes on to state: “We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion.” Id. at 41 (III).

Wrigley v. State, 248 Ga. App. 387 (546 SE2d 794) (2001), cited by the State, is not to the contrary. As this Court explained in Baker v. State, 252 Ga. App. 695, 700 (1) (556 SE2d 892) (2001), “Wrigley comports with Edmond because the error asserted was an allegedly improper purpose for the roadblock, detecting general criminal wrongdoing. [Nevertheless, w]e upheld the validity of the roadblock because the record revealed that its primary purpose was to check driver’s licenses and insurance cards.” Id.

In the case at bar, there was sufficient evidence, as discussed above, to support the trial court’s findings that the officers’ primary purpose in setting up the roadblock was general law enforcement. Because general law enforcement is not a valid primary purpose, the roadblock violated the Fourth Amendment. Accordingly, the trial court correctly granted Ayers’s motion to dismiss.

Judgment affirmed.

Phipps and Mikell, JJ, concur.