author: Pope, Presiding Judge.

text:
    A96A0322.
    HILL et al. v. MOYE et al.
    (471 SE2d 910)
   Pope, Presiding Judge.

Ben Moye and James Dennard (plaintiffs) sued Michael Hill and David Hayes (defendants) to recover a debt arising from a deficiency judgment obtained on a foreclosed tract of commercial property. The trial court granted partial summary judgment to plaintiffs, finding defendants liable as a matter of law. Defendants appeal, contending the trial court should have granted their motion and discharged them from any liability to plaintiffs. We agree and reverse.

Plaintiffs and defendants are parties in the chain of title to this property, which consists of three tracts of land in Valdosta. In 1979, Vivian Jones sold the property to plaintiffs and took back a note and security deed. The note called for 25 years of installment payments. When plaintiffs sold the property to defendants in 1983, defendants gave them a note for $7,300, took the property “subject to” the security deed between plaintiffs and Jones, and “assume[d] and agree[d] to pay” the original debt to Jones. It appears defendants did pay the required installments directly to Jones. Later, Hill obtained Hayes’ interest, paid the $7,300 debt to plaintiffs, and sold the property to Benny Mitcham, with Mitcham taking “subject to” the Moye/Dennard-Jones security deed and assuming the same original debt.

In 1993, with the note in default, Jones foreclosed on the property and applied for confirmation, naming as defendants in the confirmation proceeding Moye and Dennard, the plaintiffs in this case. The trial court confirmed the sale, leaving a deficiency in an amount not clear from the record. Moye and Dennard “settled” the deficiency by paying Jones $21,000, then brought this action to recover from defendants Hill and Hayes.

Defendants’ sole contention is that because they did not receive legal notice of the confirmation action pursuant to the statute regulating deficiency judgments following foreclosure sales, OCGA § 44-14-161, plaintiffs cannot collect from them any amounts resulting from a deficiency judgment on this property. We agree. “Summary judgment is appropriate where the moving party shows he is entitled to judgment as a matter of law and there is no genuine issue of material fact. [Cit.]” Devin Lamplighter, Ltd. v. American Gen. Finance, 206 Ga. App. 747 (1), 748 (426 SE2d 645) (1992).

Pursuant to OCGA § 44-14-161, when the holder of a security deed sells the secured property and the property does not bring the amount of the debt, the creditor may seek a deficiency judgment only if the superior court confirms the property sold fairly. OCGA § 44-14-161 (a), (b). See Guthrie v. Bank South, 195 Ga. App. 123, 125 (3) (393 SE2d 60) (1990). But no confirmation is valid against a debtor who is not given at least five days legal notice of the confirmation hearing by personal service on the debtor. OCGA § 44-14-161 (c); Vlass v. Security Pacific Nat. Bank, 263 Ga. 296 (1), 298 (430 SE2d 732) (1993); Henry v. Hiwassee Land Co., 246 Ga. 87, 88-89 (269 SE2d 2) (1980). Neither Hill nor Hayes was personally served with notice of the confirmation hearing.

1. Plaintiffs Moye and Dennard characterize this action as a suit by sureties who have paid a debt against the persons primarily responsible for the debt. See OCGA § 10-7-41. But however characterized, the action pending between these parties is a deficiency action contemplated by the statute. We have defined a “deficiency judgment” as a judgment for that part of a debt secured by a mortgage not realized from a sale of the mortgaged property. Gentry v. Hibbler-Barnes Co., 113 Ga. App. 1 (2) (147 SE2d 31) (1966). Here, Jones sought from plaintiffs a deficiency judgment because the property they pledged did not bring at a foreclosure sale the amount of the debt owed. Plaintiffs now seek recovery from defendants because the same property, sold pursuant to the same deed, did not bring enough to cover the same debt. This second suit is not based on any independent, separate obligation. First Nat. Bank &c. Co. v. Kunes, 230 Ga. 888, 889 (199 SE2d 776) (1973); C. K. C., Inc. v. Free, 196 Ga. App. 280, 282-283 (2) (395 SE2d 666) (1990). Unlike the situation in Stewart Title Guaranty Co. v. Coburn, 211 Ga. App. 357, 358 (1) (439 SE2d 69) (1993), rev'd on other grounds, 264 Ga. 555 (448 SE2d 696) (1994) , the only obligation defendants owed was this note secured by the foreclosed property.

The fact that neither plaintiffs nor defendants were in possession of the property at the time of foreclosure and confirmation does not exclude this case from the purview of the deficiency statute; substance, not form, controls. See Redman Indus. v. Tower Props., 517 FSupp. 144, 149 (N.D. Ga. 1981). The purpose of the deficiency statute is to “protect the debtor from being subjected to double payment in cases where the property was purchased for a sum less than its market value.” (Punctuation omitted.) First Nat. Bank &c. Co. v. Kunes, 128 Ga. App. 565, 567 (5) (197 SE2d 446) (1973), aff’d, 230 Ga. 888, supra. Defendants, who assumed the same debt owed by plaintiffs and pledged the same property, are entitled to no less protection.

2. Defendants are “debtors” entitled to notice by personal service. “The statute, by using the word ‘debtor,’ included all who were presently subject to payment of the debt, or who might be subjected to payment thereof, if within the knowledge of the payee of the note.” Kunes, 128 Ga. App. at 568 (5). The record shows defendants assumed the indebtedness to Jones and that she accepted payments on the debt from them. “ ‘When a grantee accepts a deed, he is bound by the covenants contained therein even though the deed has not been signed by him.’ OCGA § 44-5-39. ‘(A) remote grantee who takes mortgaged real property by a deed in which he agrees to pay the debt is personally liable to the mortgagee. . . .’ [Cit.]” Carr v. Nodvin, 178 Ga. App. 228, 233 (4) (342 SE2d 698) (1986); see Somers v. Avant, 244 Ga. 460, 461, n. 2 (261 SE2d 334) (1979). Just as plaintiffs remained sureties on the debt when they sold the property to defendants, the latter two remained liable for the debt despite the sale of the property to Mitcham. Zellner v. Hall, 210 Ga. 504 (3), 505 (80 SE2d 787) (1954); see Pindar, Ga. Real Estate Law & Proc. (3rd ed.), p. 326, § 21-50. Because defendants were responsible on the underlying debt, they were “debtors” within the meaning of this Code section. Compare Commercial Exchange Bank v. Johnson, 197 Ga. App. 529, 530 (1) (398 SE2d 817) (1990), in which the surety’s liability was limited to the property itself.

Plaintiffs argue defendants were not debtors because they did not meet the definition of debtor found in OCGA § 44-14-162.1. But that section, by its own language, does not apply to § 44-14-161. See Ray v. Atkins, 205 Ga. App. 85, 88 (2) (421 SE2d 317) (1992).

Finding the deficiency statute inapplicable in this situation would create an absurd result. See Kunes, 128 Ga. App. at 567 (5). In this case, for example, because Jones never served the current owner of the property, Mitcham, with notice of the confirmation hearing, she would clearly be prohibited from obtaining a deficiency judgment against Mitcham. But under plaintiffs’ analysis, defendants, as Mitcham’s sureties, could have paid plaintiffs and then sued to recover the deficiency from Mitcham even without a judicial confirmation. In that scenario, Mitcham could lose both property and personal assets in contravention of the statute’s intent.

Decided May 14, 1996

Barham, Dover, Bennett, Miller, Sherwood & Stone, John R. Bennett, William W. Broadfoot III, for appellants.

Tillman, McTier, Coleman, Talley, Newbern & Kurrie, Thompson Kurrie, Jr., William E. Holland, for appellees.

Had plaintiffs sought to ensure any deficiency judgment against them would be enforceable against defendants, they could have moved to join them as defendants in the confirmation action and could have ensured they were properly served with notice of the confirmation hearing. Small Business Admin. v. Desai, 193 Ga. App. 852, 853 (1) (389 SE2d 372) (1989). Because they did not, they may not circumvent the statute to impose liability on defendants. The trial court erred by denying defendants’ motion for summary judgment.

Judgment reversed.

Andrews and Smith, JJ, concur.

       In fact, in this action defendants served a third-party complaint on Mitcham, but he apparently declared bankruptcy.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A96A0420.
    McRAE v. THE STATE.
    (471 SE2d 532)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of armed robbery. At trial, the victim testified that defendant approached him from behind outside a bank at about 9:00 in the morning on August 24, 1994, and grabbed a bag of money the victim was carrying. The victim explained that he struggled with defendant to keep the money, but “let it go” when he “saw a small handgun in [defendant’s] hand.” The victim testified that defendant “took off and started running” after he got the money.

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

Defendant challenges the sufficiency of the evidence, arguing that the victim’s identification testimony was not reliable. Alternatively, defendant asserts that “[t]here was no testimony presented that [his] use of a gun was what effectuated this robbery.” Defendant reasons that “the evidence in this case shows at most that [he] was guilty of robbery by force or robbery by intimidation.” These arguments are without merit.

Decided May 14, 1996.

Landrum & Eidson, Timothy L. Eidson, for appellant.

C. Paul Bowden, District Attorney, Nancy G. Grigg, Holli G. Martin, Assistant District Attorneys, for appellee.

An appellate court does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). In the case sub judice, the victim testified that he was extremely close to the assailant during the robbery; that he had ample opportunity to observe the robber before, during and after the assault and that he was positive that defendant was the assailant. This testimony, and the victim’s testimony that defendant employed a handgun to complete the theft, was sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of armed robbery in violation of OCGA § 16-8-41 (a). McCluskey v. State, 211 Ga. App. 205, 206 (2) (438 SE2d 679); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Johnson and Ruffin, JJ., concur.


text:
    A96A0440.
    FERGUSON v. THE STATE.
    (471 SE2d 528)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with a single count of armed robbery, in that, with the intent to commit theft, he “took from the person of Eric S. Wiley ... a certain motor vehicle, a 1987 Chevrolet Blazer,... by use of a handgun. . . .” The evidence adduced at his jury trial revealed that about “[t]en minutes ‘til twelve,” on the evening of April 14, 1994, the victim, Eric S. Wiley, Jr., drove his “[19]87 S-10 Blazer” to the drive-through window at the Burger King on “Highway 85 and 138, Clayton County,” in Riverdale, Georgia. As the victim “was sitting there waiting for [his] order,. . . [t]he passenger door opened up.” The victim identified defendant as “the guy that was getting in.” After defendant opened the door, “[h]e got in, [said] hey, partner, and [the victim] got out.” Defendant had an “[a]utomatic handgun[, . . . and he] just pointed it at [the victim] when he got in.” The victim “opened the driver’s door and got out, squeezed out[, . . . and then] hollered into Burger King[:] car-jack, call the police.” At this point, defendant “took off. He jumped over to the driver’s seat and took off. The truck was still in drive. . . . He proceeded west on 138.” As defendant drove off, the victim heard “[s]hots were fired.”

In ten minutes, the police arrived. The victim affirmed his description of a young man, about “[f]ive six, five seven, . . . dark complexion, [wearing] dark clothing, hat, [and] boots,” and went home. Subsequently, the victim was summoned by the police to “report to Blockbusters, behind Blockbusters.” There, the victim’s Blazer was “backed off in the woods,” near Radio Active Stereo. A suspect in custody was removed from a police car so the victim could take a look at him. The victim had no problem recognizing defendant. The victim affirmed that defendant’s face, his clothing, his build, and his voice were the same as those of the person who robbed him.

Officer M. E. Taylor, with the City of Riverdale Police Department was performing uniform patrol in a marked patrol car at 1:00 a.m. He received a “lookout from Clayton County Police Department in reference to a black Blazer, Chevrolet Blazer, that had been . . . taken in a robbery, a car-jacking.” He was traveling northbound on Highway 85 when he “observed what appeared to be a black Blazer parked in the [Radio Active Stereo] parking lot. . . .” As Officer Taylor was “watching the vehicle [he saw] nobody else in the parking lot, [and saw no] other vehicles except for this vehicle here.” In “probably less than ten seconds,” Officer Taylor turned his patrol car around, but by the time he returned to the parking lot, he saw nothing. The vehicle was gone. It appeared that “the vehicle had pulled forward, went over the curb, went through a grassy area . . . and had parked facing back . . . behind some small trees . . . which partially obscured it from the roadway. . . .” Officer Taylor surmised anyone in the Blazer would have “had to [run] into the trees because there was no time ... for them to have gotten anywhere back this way without me seeing them, . . . that there just wouldn’t have been enough time.” Officer Taylor summoned assistance and “got the area completely blocked off.” “The area was secured where nobody could have gotten into the woods or gotten out of the woods. Once we got it secured, there was no way. We [the police] had complete view of the whole area surrounded.” A canine unit was summoned because of the possibility of two armed robbery suspects. After defendant was apprehended, the officers continued searching in the woods, but no other suspects were found.

Officer Richard Hudson of the Riverdale Police Department is the certified handler of the police dog, Buster. “Buster is trained for several different tasks. Evidence search, tracking, criminal apprehension and narcotic detection work.” On the evening of April 14, 1994, Officer Hudson was “called out specifically to track down a person behind Radio Active.” Advised that the suspect was armed, Officer Hudson “got on the PA system of the police vehicle and gave several warnings that [he] was sending a police dog in the wooded area to locate whoever fled from the vehicle.” Officer Hudson had all law enforcement officers “step out of the woods and set up a perimeter around the wooded area.” When Buster was released from his leash, he “did his grid pattern, his zigzag search in the area, hop[ing] to gain the abundance of scent if somebody was laying down.” Officer Hudson saw Buster “drop his nose to the ground which . . . [indicated] that he was on a scent.” By the time Officer Hudson caught up with Buster, he heard another “officer say we’ve got him in custody.” Officer Hudson let Buster continue because “[h]e might be going after a second suspect. . . . We end[ed] up at the exact location where they had placed the Defendant in custody,” Buster “never picked his nose up indicating he stayed on the track the whole time.” Buster also located a hat on the ground near defendant. The police never recovered any gun or any second suspect.

Officer Ed Mashburn of the Riverdale Police Department was “part of the perimeter set-up.” After Officer Hudson gave his warning and sent in the police dog, a “male exited the wood lines. . . . He was in dark clothing.” This was defendant. “He was breathing heavy and sweating like he had been running.” Officer Mashburn “gave him the command to get on the ground.” After defendant was apprehended, he was turned over to Sergeant Chris Butler of the Clayton County Police Department, who “advised him of his Miranda Rights.” Sergeant Butler then “conducted a show up [sic] identification. The Defendant was exited out the vehicle and, . . . within a few seconds, he was identified as being the perpetrator of the armed robbery. . . . There was no hesitation,” on the part of the victim, in identifying defendant as the one that robbed him. As Sergeant Butler was taking a written statement from the victim, defendant “made several attempts in a brief few seconds to get the attention of the victim and have him talk to him.” In so doing, defendant stated in the presence of the victim “that he had been dropped off by a friend at that location and he denied any involvement in the armed robbery.” Defendant testified in his own defense, denying that he was the armed robber and claiming that he was in those woods at that time and place only to answer the call of nature.

The jury found defendant guilty as charged. His motion for new trial was denied, and this appeal followed. Held:

1. Defendant filed a pretrial motion to suppress any identification of him as the armed robber based on the one-man showup. After a hearing, the trial court denied this motion and that ruling is defendant’s first enumeration of error. Defendant argues that the one-on-one showup at the scene was impermissibly suggestive and, under the totality of the circumstances, created a substantial likelihood of irreparable misidentification.

“There is ‘no per se exclusionary rule applied to pre-indictment confrontations. (Cit.)’ Yancey v. State, 232 Ga. 167, 169 (205 SE2d 282) (1974). ‘Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances must be viewed to determine if there is a “likelihood of misidentification which offends against due process and ‘the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, (and) the level of certainty demonstrated by the witness at the confrontation.’ (Cit.)” (Cit.)’ Towns v. State, 136 Ga. App. 467, 468 (1) (221 SE2d 631) (1975), applying the factors enumerated in Neil v. Biggers, 409 U. S. 188 (93 [SC] 375, 34 LE2d 401) (1972).” Johnson v. State, 209 Ga. App. 632, 633 (2) (434 SE2d 169).

At the hearing on defendant’s motion to suppress identification in the case sub judice, the victim, Eric S. Wiley, Jr., testified that the robber was only “about two feet, a foot” away from him. He affirmed that the “light inside c[a]me on[,]” when defendant opened the door. The victim looked at the robber “[a]bout ten seconds.” He was able to describe a young male with a dark complexion, dressed all in black, including boots and a black or blue cap. When summoned by the police, the victim had no problem recognizing defendant. The victim recognized the features of defendant’s face, the clothes he was wearing, and defendant’s voice. The victim confirmed that he had no doubt in his mind that defendant was the man who robbed him. Sergeant Butler testified that the showup was performed at the scene where the victim’s stolen vehicle was found, within two hours of the armed robbery and less than one mile from the site where it was stolen.

“ ‘(P)rompt on-the-scene confrontations and identifications, though inherently suggestive because of the presentation of a single suspect, (nevertheless) are permissible in aiding a speedy police investigation and . . . where possible doubts as to identification need to be resolved promptly, such on-the-spot identifications promote fairness by enhancing the accuracy and reliability of identification, thereby permitting expeditious release of innocent subjects. (Cit.)’ Bennefield v. Brown, 228 Ga. 705, 706 (3) (187 SE2d 865) (1972).” Johnson v. State, 209 Ga. App. 632, 633 (2), supra. In the case sub judice, the arrest of defendant was near in time and proximity to the crime, and immediately adjacent to where the stolen vehicle was abandoned moments before Officer Taylor arrived on the scene. Defendant, the only suspect flushed out of the woods by the trained canine, was wearing all black as described by the victim and his physical appearance matched the particulars given to police by the victim. “The trial court’s determination that there was, under the totality of the circumstances, no likelihood of irreparable misidentification is supported by the evidence, is not clearly erroneous, and is therefore affirmed. See Hood v. State, 199 Ga. App. 774 (406 SE2d 120) (1991).” Johnson v. State, 209 Ga. App. 632, 633 (2), 634, supra.

2. Defendant enumerates the general grounds. He argues he was entitled to a directed verdict of acquittal because, once the fatally flawed identification testimony is eliminated, the State’s remaining circumstantial evidence is insufficient to exclude the reasonable hypothesis of his innocence, as established by uncontradicted alibi witnesses.

“ ‘On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the (defendant) 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, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Howard v. State, 261 Ga. 251, 252 (403 SE2d 204); King v. State, 213 Ga. App. 268, 269 (444 SE2d 381).’ Dolphus v. State, 218 Ga. App. 565 (462 SE2d 453). ‘ “Conflicts in the testimony of the witnesses, including the (S)tate’s witnesses, is a matter of credibility for the jury to resolve. (Cits.) As long as there is some (competent) evidence, even though contradicted, to support each fact necessary to make out the (S)tate’s case, the jury’s verdict will be upheld. (Cit.)” Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311).’ Grier v. State, 218 Ga. App. 637 (1) (463 SE2d 130). ‘The testimony of a single witness is generally sufficient to establish a fact.’ OCGA § 24-4-8.” Brewer v. State, 219 Ga. App. 16, 17 (1) (463 SE2d 906).

In the case sub judice, the victim’s in-court identification of defendant as the armed robber is direct evidence of guilt. Johnson v. State, 216 Ga. App. 858, 861 (4) (456 SE2d 251). We have held in Division 1 that the trial court did not err in failing to suppress the identification testimony. Theft of an automobile may constitute armed robbery. OCGA § 16-8-41 (a); Roberts v. State, 228 Ga. 298, 299 (2), 300 (185 SE2d 385). The evidence that defendant entered the victim’s motor vehicle with a handgun pointed at the victim and drove off in the victim’s Blazer is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury’s determination that defendant is guilty, beyond a reasonable doubt, of armed robbery as alleged in the indictment.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.

Decided May 14, 1996.

Thomas S. Barton, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.


text:
    A96A0479.
    MOONEY v. THE STATE.
    (471 SE2d 904)
   McMurray, Presiding Judge.

Defendant was tried before a jury on a multicount indictment and found guilty of two counts of obstruction of a law enforcement officer, and one count each of aggravated assault, speeding, attempting to elude, reckless driving, driving under the influence, endangering a child under 14 while driving under the influence, being an habitual violator, running a stop sign, hit-and-run, failure to yield the right-of-way, and driving with marijuana in his blood. Defendant was acquitted of one count of aggravated assault (Count 1), one count of aggravated assault upon a peace officer (Count 4) and also acquitted of one count of hit-and-run (Count 14). The trial court further directed a verdict of acquittal as to a charge of improper backing (Count 16). The evidence revealed that defendant was arrested as the sole occupant of a vehicle under the following circumstances: On the evening of October 16, 1993, Gilmer County Deputy Sheriff Jerry Max Frady was driving a marked sheriffs patrol car on Georgia Highway 52, headed toward Ellijay, when he received “radio traffic from Pickens County to be on the lookout for a late model dark green Camaro.” This green Camaro was “traveling north on Highway 515 at a high rate of speed running traffic off of the road.” Officer Ken Brooks of the East Ellijay Police Department was already in pursuit. Deputy Frady turned “up the on ramp to 515 to the northbound lane,” and spotted the Camaro in the midst of “pretty good traffic then.” As soon as Deputy Frady “got in behind him the car veered halfway off the road across the white line, at least half of his car.” Deputy Frady radioed the Camaro’s tag number into Gilmer County. He then “activated [his] lights — [his] blue lights and . . . headlights. And the Camaro pulled to the right shoulder of the road.” Deputy Frady parked behind the Camaro, exited his car, and approached the Camaro. He was wearing “blue jeans, a sheriffs department investigator shirt with . . . emblem, and a sheriffs department jacket with patches.” He wore his “badge on the right hand side of [his] belt.” The driver of the Camaro “never rolled the windows down,” nor attempted to acknowledge Deputy Frady. Instead, he remained in the car, “revving the motor. . . .” Deputy Frady started back toward his car, intending to “get on the PA. Tell him to cut the motor off and roll his window down.” Instead, the driver “spun out, crossed both lanes of northbound 515 to the left, crossed the cross section of the median — which is paved, spinning the whole way, [and] headed south on 515.” Officer Brooks of East Ellijay approached with lights and siren already activated. Officer Brooks cut across the median. “The green Camaro went by him and he took in after him.” As the Camaro approached a traffic light, “the light was red. And there was traffic sitting in both lanes of 515 South and both of the turning lanes — stopped. . . . And there was traffic crossing 515 at the red light.” Defendant, the driver of the Camaro, “slid. He locked brakes, slid, went up on the curve to the right and passed the traffic around to the right in the grass.” Traffic scattered. Deputy Frady and Officer Brooks continued their pursuit, following the Camaro at speeds “[i]n excess of a hundred and fifteen miles an hour.” If there were cars in the driver’s path, “he’d pass ‘em in the grass on the left hand side. . . . [T]hen he’d get back over in the right hand lane. And if there was a car in the right hand lane he’d pass ‘em on the grass in the right hand lane.” Three miles south of East Ellijay, defendant “slowed down to about ninety-five miles an hour. . . .” The chase was “quickly approaching the off ramp at Old 5 — running in excess of a hundred and he got nearly to the off ramp and just locked it up and slid straight down the highway. [Deputy Frady] was directly behind him and chunks of tire . . . [flew] over the top of [Deputy Frady’s] car.” The Camaro slowed enough to start “down the off ramp.” There, defendant confronted a van coming up from 515 and “a car coming south on Old 5. He went between them, in the mud, in the grass and between them and hit Old 5 going south.” By now, Deputy Frady thought he observed “two white males in the car. [He] could see two heads in the car.” As he followed the Camaro into Pickens County, Deputy Frady saw the “passenger side window [roll] down and they start throwing what appeared to be trash out the window.” Traveling “[p]lenty in excess of a hundred miles an hour,” it was all Deputy Frady could do “to stay on the road and stay with him.” Before reaching the “Y” at Talking Rock, where “Old 5 and 136 and the on ramp to 515 come together,” Deputy Frady saw a “marked unit with lights flashing. . . .” “The Camaro started to slow at the curve and slid ... in the curve and nearly c[a]me to a complete stop.” When the Camaro nearly stopped, the “passenger side door c[a]me open — completely open and a woman holding a small child in her arms turned and got her legs all of the way out of the car on the ground to exit the vehicle.” But then defendant in the Camaro “sped east — just floored it. . . . And the door was coming back and the woman got her legs back up in the car.” Defendant accelerated and “went on up 136, continued back up to a high rate of speed.” As defendant approached the stop sign at the intersection of the 136 Connector and 53, he “locked it up and slid — slid through the intersection and t-boned a white four door car in the passenger door. T-boned it hard.” Deputy Frady “pulled [his] unit in front of him to block him and notified dispatch that [the driver] was wrecked at 136 and 53. . . .” “The female and the child exited [the Camaro] on the passenger’s side . . . and went directly behind [Deputy Frady’s patrol] car.” As Deputy Frady exited his car, defendant “kicked it backwards — like attempting to go back up this highway. ... He backed up in this lane — not all the way across but. . . [nevertheless into] oncoming traffic.” “Deputy Frady attempted to back his car in front of the Camaro but defendant “sped out . . .” hitting Deputy Frady’s vehicle in “the left front corner of the front bumper.” Defendant drove “straight down Carver Mill [Road,] and [Deputy Frady] pursued.” As Deputy Frady reached the top of a hill, the “pavement ended. Where the pavement ended there was white gravel and you could see where he’d went all over the road. [Deputy Frady] continued down through there probably no more than three hundred yards and there sat the green Camaro plowed into a pine tree[,] on the driver’s side front bumper into the pine tree. . . . There was a woman standing in the yard. . . . She was pointing. ‘He went up in the field. He’s up in there.’ ” Deputy Frady saw “a guy in a white shirt run in the woods. . . . About twenty-five yards up into the woods there was a fence and the guy in the white shirt was crouched down by the fence.” As Deputy Frady entered the woods, “the guy come back at me. The Defendant in the shirt — white shirt, come back at me.” Deputy Frady “told the Defendant to stop and get on the ground. ... As soon as I said that he came up with his right hand and had an object in his right hand that I thought was a knife. I told him to stop again. As he come up I pulled the gun and shot. . . . [Defendant] went directly to his right through the woods.” Deputy Frady followed and, as he approached, “identified [himself] as Deputy Max Frady of the Gilmer County Sheriff’s Department and [told defendant that] he was under arrest. What he needed to do was lay down on the ground.” Defendant was argumentative, vituperative, and did not comply with Deputy Frady’s directive. Defendant “kept saying over and over, ‘Kill me. Kill me [d_] or I’ll kill you. Kill me you [s_o_ a b_] or I’ll kill you.’ He kept shouting that over and over. And [Deputy Frady] kept telling [defendant], Your [sic] under arrest. What you need to do is lay down on the ground. . . . [They] stood in a verbal argument there for just a minute and [Deputy Frady] approached [defendant]. [Defendant . . .] was on a uphill angle [from Deputy Frady]. Just as [Deputy Frady] approached . . . [defendant] took about three — two or three running steps and hit me right chest high with his shoulder.” As they rolled and grappled, defendant “had the leverage and just body slammed [Deputy Frady] right against a tree — backwards.” Deputy Frady saw his pistol “on the ground up above [them] which scared [him . . . because he did not know if defendant] still had the knife or what.” Determined to regain control of the situation, Deputy Frady “kicked [defendant in] the center of the chest and [defendant] done a flip backwards off the hill. . . . [Deputy Frady] started towards him. [Defendant] started right back up. We done this about three times.” Assistance finally arrived from the “State Patrol, Pickens County uniformed officer and investigator Craig,” who had to wrestle with defendant in order to subdue and handcuff him. A closed knife was found on the ground. Defendant testified in his own behalf and admitted consuming at least “[t]hree beers and — uh — probably about two good drinks off of — uh — some liquor,” before he drove that afternoon and evening.

Defendant’s motion for new trial was denied, and this appeal followed. Held:

1. Defendant enumerates the general grounds, contending the chase and arrest were illegally initiated by an officer improperly dressed, in that Deputy Frady was not in uniform as required by OCGA § 40-6-395 (a). As a result, he argues, all evidence obtained pursuant to the illegal arrest would be inadmissible.

“[N]o violation of [former] Code Ann. § 68A-904 (a) [now OCGA § 40-6-395 (a)] is shown unless the evidence demonstrates that the officer allegedly eluded was in the required uniform and that his vehicle was appropriately marked.” Phillips v. State, 162 Ga. App. 471 (2), 472 (291 SE2d 776). But the evidence in the case sub judice was that Deputy Frady was wearing a black Gilmer County investigator’s shirt with emblem under a brown Gilmer County Sheriff’s Department jacket depicted in State’s exhibits when he attempted to approach defendant’s vehicle; that his badge was displayed on his belt; that the vehicle Deputy Frady drove was appropriately marked with the proper insignia for the Gilmer County Sheriff’s Department; and that Deputy Frady employed both his flashing lights and his siren in attempting to apprehend defendant. “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. “Conflicts in the testimony of the witnesses, including the [S]tate’s witnesses, is a matter of credibility for the jury to resolve. [Cits.] As long as there is some [competent] evidence, even though contradicted, to support each fact necessary to make out the [S]tate’s case, the jury’s verdict will be upheld. [Cit.]” Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311). In the case sub judice, the evidence that Deputy Frady displayed a variety of objective indicia of his lawful authority was sufficient to authorize the jury’s determination that defendant was unlawfully attempting to elude, as alleged in Count 7 of the indictment. Lester v. State, 253 Ga. 235, 239 (5) (320 SE2d 142). The enumeration of the general grounds is without merit.

2. In his second enumeration of error, defendant contends the trial court erred in failing to grant his renewed motion for mistrial made after the trial court allegedly commented on the evidence in the presence of the jury.

During cross-examination of Deputy Frady, defendant asked whether the deputy’s own actions in chasing defendant through East Ellijay at speeds of 100 miles per hour itself jeopardized public safety. The State’s attorney interposed a relevancy objection, and the trial court observed: “I don’t think the law requires an officer to break off a chase. He’s told you the policy. The mere fact that an officer tries to stop a man that may be going down the highway — and he’s testified what happened. I don’t know of any law that requires he break off the chase.”

OCGA § 17-8-57 provides: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” In applying this Code section, it must be recognized there is a difference between evidence and proof. “ ‘Evidence tends to establish or disprove an alleged matter of fact in issue. Proof is the effect of evidence, while evidence is merely the means of making proof. A fact is not proved unless it is established.’. . . [Cit.]” Jackson v. State, 177 Ga. 264, 265 (170 SE 26). “Generally what the court says in stating to counsel the reason for denying a motion to exclude or rule out evidence is, if pertinent to the question raised by counsel, not error, although the reason given involve a statement as to certain testimony which is already in, or as to there being nothing in evidence showing that the circumstances are as the counsel claim.” Croom v. State, 90 Ga. 430, hn. 3 (17 SE 1003). “ ‘The only practicable rule is, to treat the jury as possessed of common sense, and as capable of understanding what is addressed by the judge to them and what is not. He may not express to the jury any opinion; but if in the decision of any legal question, as it arises, he must pass upon facts, the statute does not apply. It must be reasonably construed.’ [(Emphasis in original.)]” Chapman v. State, 23 Ga. App. 359, 361 (98 SE 243). In the case sub judice, we find no impermissible expression of opinion to the jury as to what has been proved by the trial court’s reference to Deputy Frady’s testimony during colloquy with counsel respecting an evidentiary ruling.

3. Defendant contends the trial court erred in admitting evidence of blood tests, showing his blood alcohol concentration to be .09 grams percent, over his objection that the implied consent warning was defective. State’s Exhibit 31 is a videotape made from the patrol car of Trooper Tim Nichols of the Georgia State Patrol. In this tape, Trooper Nichols read defendant an implied consent warning three times, each time informing defendant of his right to an additional chemical test at his own expense. Defendant complains that this warning failed to inform him that he further had the right to insist that any such additional chemical test be given by qualified persons of his own choosing.

Under the law applicable to this arrest, made on October 16, 1993, a defendant was not entitled to an implied consent warning that tracked the exact language of the implied consent statute, former OCGA § 40-5-67.1 (b) (amended, effective April 21, 1995). Howard v. Cofer, 150 Ga. App. 579 (2), 580 (258 SE2d 195). Nevertheless, to omit reference to the right of the accused to have any additional chemical test performed by qualified persons of his own choosing was a fatal flaw, under OCGA § 40-6-392 (a) (3), rendering the State-administered test results inadmissible at trial. State v. Causey, 215 Ga. App. 85 (449 SE2d 639). This continues to be the case using the legislatively prescribed warning established under existing OCGA § 40-5-67.1 (b) (2). Accordingly, we hold the trial court in the case sub judice erred in admitting, over defendant’s timely objection, the results of the State-administered test of defendant’s blood. Nevertheless, we find that error to be harmless, due to the overwhelming evidence that defendant, having engaged in a 29-mile high-speed chase which caused a wreck and endangered lives, was a less safe driver as alleged in Count 9 of the indictment, after his admitted use of alcohol. Evidence of defendant’s blood alcohol level merely corroborated other evidence, including defendant’s own statements, that he “had been drinking heavily. Therefore, it is highly probable that this [erroneously admitted] evidence did not contribute to the verdict, and [the] error in admitting it was harmless. Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).” Johnson v. State, 146 Ga. App. 835, 836 (3) (247 SE2d 513).

4. Defendant enumerates the denial of his motion for new trial on the special ground of ineffective assistance of counsel. He argues that trial counsel should have moved before trial to exclude all evidence, on the basis that his arrest was unlawful because Deputy Frady was not in proper uniform at the time he initiated the chase. Since we have already held in Division 1 that the evidence is sufficient to authorize the conclusion that Deputy Frady was properly attired, the failure of trial counsel to bring such a motion does not raise a reasonable probability that the outcome of the trial would have been different. Consequently, defendant has failed to establish one of the necessary prongs to a successful challenge to his conviction due to alleged ineffective assistance of counsel. Johnson v. State, 216 Ga. App. 858 (1), 860 (456 SE2d 251).

Judgment affirmed.

Johnson, J., concurs. Ruffin, J., concurs in the judgment only.

Decided May 14, 1996.

Richard Thurman, for appellant.

Roger G. Queen, District Attorney, for appellee.


text:
    A96A0660.
    CHESHIRE BRIDGE ENTERPRISES, INC. et al. v. THE STATE.
    (472 SE2d 6)
   Pope, Presiding Judge.

Plaintiffs Cheshire Bridge Enterprises, Inc. (d/b/a “Club Anytime”) and C. A. V. Corporation (d/b/a “Weekends at Backstreet”) operate private clubs in Atlanta. After being cited by the State for selling alcoholic beverages after 2:55 a.m. on Sunday in violation of OCGA § 3-3-20 (a), they brought this action for declaratory and injunctive relief as well as damages, arguing that the prohibition on Sunday liquor sales contained in Chapter 3 of Title 3 does not apply to private clubs. The trial court denied plaintiffs’ request for a preliminary injunction and granted the State’s motion to dismiss the complaint for failure to state a claim. Concluding that Chapter 3 of Title 3 does apply to private clubs, we affirm.

1. “[EJxcept as specifically authorized by law, no person knowingly and intentionally shall sell or offer to sell alcoholic beverages on Sunday.” OCGA § 3-3-20 (a). Atlanta is authorized to allow the sale of alcoholic beverages until 2:55 a.m., and has done so. See OCGA § 3-3-7 (d) (1); Atlanta Code § 10-209 (d) (formerly § 14-2126 (d)). But plaintiffs wish to continue their sales of alcoholic beverages throughout the morning, day, and night on Sundays.

(a) Plaintiffs first assert that because Chapter 7 of Title 3 applies specifically to the sale of distilled spirits by private clubs, the more general requirements of Chapter 3, including the prohibition on Sunday sales quoted from OCGA § 3-3-20 (a) above, do not apply. Statutes relating to the same subject matter should be read together and harmonized to the extent possible, however, and a review of the full Title 3 shows that plaintiffs’ interpretation is not a reasonable way to read and harmonize Chapters 3 and 7. Chapter 3, entitled “Regulation of Alcoholic Beverages Generally,” does just what its title indicates: in addition to restricting the sale of alcoholic beverages on Sundays, for example, it prohibits the sale of liquor which does not meet federal and state standards as to quality and purity (OCGA § 3-3-5); it restricts the sale of alcoholic beverages near churches and schools (OCGA § 3-3-21); it prohibits the sale of alcoholic beverages to already intoxicated persons (OCGA § 3-3-22); and it prohibits the sale of alcoholic beverages to underage persons (OCGA § 3-3-23). Chapter 7 addresses none of these topics. Thus, when read together, there is no contradiction between Chapters 3 and 7, and no reason they should not both apply. Indeed, if plaintiffs’ position was accepted and Chapter 3 did not apply to facilities covered by other specific chapters, there would be no law against private clubs selling impure alcohol or selling alcoholic beverages to minors; and the same would be the case for publicly owned facilities covered by Chapter 8, and passenger carriers and hotels covered by Chapter 9.

Decided May 14, 1996.

Brookins & Cook, O. Jackson Cook, for appellants.

Michael J. Bowers, Attorney General, Daniel M. Formby, Deputy Attorney General, John B. Ballard, Jr., Grace E. Lewis, Senior Assistant Attorneys General, for appellee.

We also note that in OCGA § 3-3-21, the Code section restricting the sale of alcoholic beverages near churches and schools, the legislature explicitly provided that the restrictions in that section would not apply to private clubs — a provision which would be unnecessary, of course, if Chapter 3 as a whole was not intended to apply to those clubs. See OCGA § 3-3-21 (b) (2).

(b) The prohibition against Sunday sales contains the phrase “except as specifically authorized by law,” and plaintiffs next argue that the Atlanta Code specifically authorizes them to sell alcoholic beverages after 2:55 a.m. on Sunday. They base this argument on the last sentence of the City ordinance prohibiting Sunday sales after 2:55 a.m., which states that “this subsection shall not apply to private clubs.” See Atlanta Code § 10-209 (d). Even if such an exclusion from a prohibition could be deemed a specific authorization, however, “[t]he City of Atlanta cannot by ordinance authorize an act to be done which is expressly prohibited by State statute.” Hawes, 224 Ga. at 789.

2. In light of our conclusion that private clubs cannot sell alcohol after 2:55 a.m. on Sundays, we need not address plaintiffs’ contention that the trial court should have granted their request for a preliminary injunction.

Judgment affirmed.

Andrews and Smith, JJ, concur.

        Weldon v. Bd. of Commrs. &c., 212 Ga. App. 885 (2) (443 SE2d 513) (1994); see also Hawes v. Dinkler, 224 Ga. 785, 789 (2) (164 SE2d 799) (1968).


author: McMURRAY, Presiding Judge.

text:
    A96A0664.
    SMITH v. THE STATE.
    (472 SE2d 4)
   McMURRAY, Presiding Judge.

Defendant Smith appeals his conviction of the offenses of kidnapping, armed robbery, and criminal attempt to rape. Held:

1. Defendant attempted to testify as to the victim’s accusation that another person was the perpetrator of the crimes of which he now stands convicted. The prosecuting attorney objected sufficiently to invoke the rule stated in Strickland v. State, 205 Ga. App. 473 (422 SE2d 312), that before admitting evidence of prior false accusations by a victim of a crime within the proscription of the rape shield law, the trial court must first determine outside the presence of the jury that a reasonable probability of falsity exists. Since defendant had failed to establish, or even offer to establish, the required foundation outside the presence of the jury for the testimony in question, the trial court did not err in sustaining the objection to defendant’s testimony.

2. In the second enumeration of error, defendant complains that his identification by the victim in a one-on-one showup was impermissibly suggestive. But this issue was not preserved by any motion or objection below. While the record does contain a motion to suppress evidence, we note that the factual predicate stated therein is not consistent with the evidence developed at trial and that we are not referred to any ruling or attempt to elicit a ruling thereon. Under these circumstances nothing related to this enumeration of error has been preserved for appellate review. Harrison v. State, 213 Ga. App. 366, 367 (1) (444 SE2d 613).

3. Defendant’s third enumeration of error complains of an inaccuracy in the opening statement of the prosecuting attorney. The prosecuting attorney stated an expectation that the evidence would show that the victim had identified the defendant by his voice while the testimony at trial established that this statement was not true. While such a failure by the prosecution to present the evidence anticipated is generally favorable rather than harmful to a defendant and seems most unlikely to be the source of reversible error, in this instance the issue has been waived due to the absence of any objection below. Id. While defendant would have us excuse the absence of an objection because the alleged inaccuracy of the statement of the prosecutor could not have been known at the time it was uttered, this argument does not acknowledge that any misstatement must have become apparent when the victim testified that she had not heard the defendant’s voice since the commission of the crimes. Since the requirement for timely objections means at the first practicable opportunity after the basis for objection becomes known and that opportunity having arisen during trial, the failure to object below results in a waiver as to this issue. Seabrooks v. State, 251 Ga. 564, 566 (1), 567 (308 SE2d 160).

Decided May 14, 1996.

Martin H. Eaves, for appellant.

Richard E. Currie, District Attorney, Alexander J. Markowich, Assistant District Attorney, for appellee.

4. The final enumeration of error questions the sufficiency of the evidence. That evidence, viewed in the light most favorable to sustaining the verdict of the jury, shows that the victim was waiting near a bus station to meet a bus carrying her granddaughter when, shortly after 3:30 a.m., defendant dragged her against her will to a nearby field where he threw her down, demanded money, and choked and threatened her. Defendant then threatened the victim with a pistol while he continued to demand money. The victim surrendered a sum of money and some food stamps to defendant who then removed the victim’s pants and panties before inserting his finger in her vagina. At this point, the victim collapsed and blacked out. This evidence was sufficient to authorize a rational trier of fact to conclude that defendant was guilty beyond a reasonable doubt of the offenses of which he has been convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A0689.
    ADEFENWA v. THE STATE.
    (471 SE2d 900)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with “TRAFFICKING HEROIN” for knowingly possessing “more than 28 grams of a mixture containing heroin.” The evidence adduced at his jury trial revealed that, acting on information that a certain male in a certain white Subaru would be in a Checkers parking lot in Jonesboro, Clayton County, Georgia, “with a large quantity of drugs,” Special Agent Joseph Daly of the Clayton County Police Department, assisted by Clayton County Deputy Sheriff James F. Watkins, drove a marked patrol unit to that parking lot and observed a white vehicle matching the description “backed into a parking space close to the drive-thru area.” Special Agent Daly and Deputy Watkins, each in full uniform, began to approach the white vehicle. Defendant “immediately exited the vehicle in a very hurried manner. He began juggling his hamburger and his french fries and his Coke as he attempted to get out[,] almost dropping it.” “[I]t appeared that [defendant] was trying to separate [himself] from the vehicle.” Defendant told the officers “that he was just waiting for a friend.” Defendant’s demeanor “was extremely nervous, he was fidgeting.” Although defendant consented to a search of his person for weapons or drugs, when Special Agent Daly asked for permission to search the vehicle, defendant “didn’t give ... a response at all, he wouldn’t tell [Special Agent Daly] whether [the agent] could or couldn’t search his vehicle.” Special Agent Daly asked again. Defendant’s “second response was, he said, what.would you do if I tell you, no.” “At that point it was obvious [defendant] wasn’t going to give [Special Agent Daly] an answer either way. [Special Agent Daly] asked [defendant] again to clarify whether or not he was [going to] allow [the agent] to search his vehicle, again, no response.”

In Special Agent Daly’s patrol unit was Wodan, a Belgian Malinois trained to detect narcotics by scent. When defendant refused to clarify whether he would or would not permit officers to search his vehicle, Special Agent Daly “just went to [his] vehicle and removed the canine.” Wodan alerted to the presence of drugs in the front seat of defendant’s automobile. When Wodan reached the front passenger door seam, he “crouched down. That indicates ... he smelled the odor of narcotics. . . . When he reached that door seam he immediately stopped and began to give an aggressive scratch on the door seam.” Special Agent Daly put Wodan back in his patrol unit and then “explained to [defendant] that the dog had indicated there was a presence of narcotics in his vehicle. [Special Agent Daly] asked [defendant] again would he or did he have anything to tell [him] about what was in the vehicle. At that time, [defendant] just said, no, you can’t search the vehicle.” Special Agent Daly informed defendant that, “based on everything that we’d observed, our conversation, his unusual behavior and suspicious manner and on the dog’s aggressive indication of the presence of narcotics, that I was going to search the vehicle without his consent.” Deputy Watkins “observed a Checkers bag . . . sitting in the floorboard area on the passenger side. . . .” This bag contained “a brown powdery substance [in eight plastic bags] suspected of being heroin.” Defendant was placed under custodial arrest and read his Miranda rights. Defendant “stated that he understood them and then [Special Agent Daly] took a brief statement.” Defendant identified the substance as drugs and “said he got them from a friend or acquaintance from his work and that they really didn’t belong to him, he was just selling them for that person to make extra money.” Forensic analysis showed that the brown powder, net weight 220 grams, tested positive for heroin. The strength was “45 percent pure.” There was a “cut or a substance which was added to the heroin to increase its volume and that substance was found to be phenalthalene.”

The jury found defendant guilty as charged. His motion for new trial was denied, and this appeal followed. Held:

1. Defendant first enumerates the overruling of his motion to suppress. That motion urged “Defendant’s automobile was searched illegally while defendant was being held in illegal custody, said search was being conducted without a warrant or probable cause.” After a hearing, the trial court determined from the bench that the officers had a right to approach defendant “with or without articulable suspicion.” The trial court concluded that “defendant was not detained or arrested . . . until after the contraband was [discovered and] removed from the vehicle. . . .” The trial court further concluded that, subsequent to the alert by the drug dog, “the police officers had probable cause to search the vehicle without a warrant given the exigent circumstances and the nature of it being a vehicle, et cetera.” On appeal, defendant argues that the officers did not have probable cause to arrest. We disagree.

When Wodan, the trained Belgian Malinois, alerted to the presence of narcotics in defendant’s car, “the officer[s] then had probable cause to believe that contraband was contained somewhere therein. ‘A sniffing dog may provide probable cause for the issuance of a search warrant, (cits.) or when exigent circumstances are present, justify a search without a warrant. (Cits.)’ State v. Morrow, 625 P2d 898, 901 (1) (Ariz. 1981). Once [Special Agent Daly] had probable cause to believe that contraband was contained somewhere in [defendant’s] automobile, he was authorized to conduct a [warrant-less] search of its contents. . . . [Cit.] [In the case sub judice, the] trial court did not err in denying [defendant’s] motion to suppress.” Boggs v. State, 194 Ga. App. 264 (390 SE2d 423). See also Roundtree v. State, 213 Ga. App. 793 (446 SE2d 204); Donner v. State, 191 Ga. App. 58, 60 (380 SE2d 732).

2. The trial court did not abuse its discretion in refusing to grant a continuance of the suppression hearing in order to await the arrival of two defense witnesses, purportedly under subpoena, where defendant failed to make the required showing of availability and materiality under OCGA § 17-8-25. “ ‘Each of the requirements set forth in OCGA § 17-8-25 must be met before an appellate court may review the exercise of the trial court’s discretion in denying a motion for continuance based upon the absence of a witness.’ . . . Garrett v. State, 202 Ga. App. 463 (414 SE2d 693).” Grant v. State, 212 Ga. App. 565 (1) (442 SE2d 898).

3. Defendant’s final two enumerations contend the trial court erred in overruling his motion for new trial on the special ground of ineffective assistance of counsel. He complains that trial counsel was ineffective “by not being prepared for the Motion for Funds to Hire an Expert Witness who was necessary in order to properly attack the use of the canine [and further by] not objecting to the jury array, which had a clear underrepresentation of [members of defendant’s race].”

“When inadequate representation is alleged, the critical factual inquiry ordinarily relates to whether the defendant had a defense that was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; and whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy. Generally, the burden is on the defendant claiming ineffective [assistance] of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Citations and punctuation omitted; emphasis in original.) Johnson v. State, 214 Ga. App. 77 (1) (447 SE2d 74).

(a) With respect to trial counsel’s alleged failure, over a five-month period, to prepare for defendant’s motion for funds to hire an expert witness to challenge the reliability of the canine alert, we assume — but do not hold — that such a failure to prepare and to use wisely such time and resources as were already available fell below that objectively reasonable standard of diligent preparation that members of the bar in good standing are presumed to render. The question becomes whether defendant has met his burden of persuasion to show that, but for this omission, there is a reasonable probability that the result of the proceeding would have been differr ent. We conclude he has not.

“A conviction will not be reversed on the basis of ineffective assistance of counsel unless ‘ “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” ’ Carter v. State, 176 Ga. App. 632, 633 (337 SE2d 413) (1985), quoting from Strickland v. Washington, 466 U. S. 668, 669 (104 SC 2052, 80 LE2d 674) (1984). See United States v. Cronic, 466 U. S. 648 (104 SC 2039, 80 LE2d 657) (1984).” Cofield v. State, 216 Ga. App. 623, 627 (5) (455 SE2d 342). In the case sub judice, a successful challenge to defendant’s conviction would require a two-step showing: (1) that the trial court would have granted a properly prepared motion for funds to hire an expert witness, and (2) that this expert would have revealed some glaring flaw in Special Agent Daly’s interpretation of Wodan’s aggressive alert to the door of defendant’s car, such that the motion to suppress would have been granted as well. As it was, at the suppression hearing, trial counsel challenged the assumption that Wodan’s alert meant the dog smelled narcotics by posing the plausible alternative that he responded to the odor of food, such as hot hamburgers from Checkers, in defendant’s vehicle. It is noteworthy that defendant and appellate counsel have not shown just how material such an expert’s aid would have been or raised a reasonable probability that the expert’s evidence would have changed the result. Given the overwhelming evidence of defendant’s guilt of trafficking in cocaine, “there is not a reasonable probability that, but for his counsel’s [alleged] errors, the jury would have had a reasonable doubt regarding his guilt.” Black v. State, 264 Ga. 550 (1), 552 (448 SE2d 357). Defendant has failed to show that the trial cannot be relied upon to have produced a just result. Consequently, the trial court was authorized to conclude that trial counsel’s failure to challenge the reliability of the trained canine’s alert by means of an expert witness did not prejudice defendant.

(b) The array from which defendant’s petit jury was selected contained only two members of defendant’s race, one of whom was “struck for cause by [the] court because he had a previous conviction for habitual violator.” After the trial court had the State’s attorney explain her peremptory strike to remove that other venireman of defendant’s race, trial counsel withdrew his challenge under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69). In response to a direct inquiry by the trial court, trial counsel had no objection “to the makeup of the jury list in this case.” Defendant contends that trial counsel was ineffective for not challenging the array. Judging from the venire in this case alone, defendant argues that “[o]bviously the method used to select the array in question was inadequate to obtain a relative cross-section of the community from which it was drawn.”

In determining what constitutes ineffective assistance of counsel, a critical distinction is made between inadequate preparation on the one hand, and unwise choices of trial tactics and strategy on the other hand. Hudson v. State, 250 Ga. 479, 485 (8), 486 (299 SE2d 531). “There is a strong presumption that trial counsel’s performance ‘falls within the wide range of reasonable professional assistance’ and that any challenged action ‘ “might be considered sound trial strategy.” ’ [Strickland v. Washington, 466 U. S. 668, supra] at 689 (quoting Michel v. Louisiana, 350 U. S. 91, 101 (76 SC 158, 100 LE 83) (1955)).” Earnest v. State, 262 Ga. 494, 496 (5) (422 SE2d 188).

We find no unprofessional lapse in the case sub judice from trial counsel’s deliberate choice not to pursue a challenge to his array. “[T]here is no constitutional guarantee, that grand or petit juries, impaneled in a particular case, will constitute a representative cross section of the entire community. . . . See Campbell v. State, 240 Ga. 352, 356 (5) (240 SE2d 828).” Smith v. State, 151 Ga. App. 697, 699 (4) (261 SE2d 439). The mere fact that a jury panel contains no members of a defendant’s race will not, standing alone, support a challenge to the array and warrant the granting of a motion for new trial. Hudson v. State, 185 Ga. App. 508 (1) (364 SE2d 635). Rather, the proper “inquiry concerns the procedures for compiling the jury lists and not the actual composition of the grand or traverse jury in a particular case. [Cits.]” (Emphasis supplied.) Patterson v. Balkcom, 245 Ga. 563, 564 (1), 565 (266 SE2d 179). There is no competent evidence of systematic exclusion or underrepresentation of prospective jurors of defendant’s race. See Campbell v. State, 240 Ga. 352, 355 (2), supra; Truitt v. State, 212 Ga. App. 286 (441 SE2d 800). Consequently, trial counsel’s “tactical decision not to challenge the traverse jury array resulted in [no] denial of [defendant’s] Sixth and Fourteenth Amendment right to effective assistance of counsel. Hudson v. State, 250 Ga. 479 (8)[, supra]. We find no merit in this enumeration.” Godfrey v. Francis, 251 Ga. 652, 653 (1), 654 (308 SE2d 806).

Decided May 14, 1996.

Patricia A. Buttaro, for appellant.

Robert E. Keller, District Attorney, Deborah N. Marón, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, J, concurs. Ruffin, J., concurs in the judgment only.


author: Judge Harold R. Banke.

text:
    A96A0108.
    CENTRAL OHIO GRAPHICS, INC. v. ALCO CAPITAL RESOURCE, INC.
    (472 SE2d 2)
   Judge Harold R. Banke.

Aleo Capital Resource Inc. (“Aleo”) sued Central Ohio Graphics, Inc. (“Central”) for breach of an agreement to lease a copy machine. Central appeals the denial of its motion to dismiss for lack of personal jurisdiction and the entry of default judgment allowing Aleo to recover $92,010 in principal, plus $1,315.86 in interest and $9,226 in attorney fees.

This case arose after Central, an Ohio corporation, entered into an agreement to lease two copiers from Aleo. The agreement contained a broad forum selection clause which stated that “Aleo Capital has the option of pursuing any action under this agreement in any court of competent jurisdiction and the customer [Central] consents to jurisdiction in the state of our choice.” O’Brien Business Equipment, Inc. (“O’Brien”) was listed as the “dealer” on the lease agreement. Both O’Brien and Aleo are Aleo Standard Companies. On the same day Central entered into the lease agreement, it entered into a service agreement with O’Brien in Columbus, Ohio.

Several months later, Central unilaterally terminated the lease agreement at issue after repeated difficulties with one of the copiers. Aleo then brought this action in Bibb County State Court. Hours later, Central sued both Aleo and O’Brien in an Ohio state court. Aleo successfully moved to dismiss the Ohio action, arguing that the forum selection clause was enforceable. The Ohio court’s decision was reversed and remanded on appeal for a determination of whether enforcement of the forum selection clause was unjust or unreasonable. Central Ohio Graphics v. O’Brien Business Equip., _ Ohio App. 3d_(No. 95 APE08-1016, decided March 28, 1996).

In the Georgia case, Central moved to dismiss for lack of personal jurisdiction, arguing that (1) it lacked minimum contacts with Georgia and (2) the forum selection clause was too broad and vague to satisfy the requisites of due process. The trial court denied the motion and, on the same day, granted Alco’s motion for default judgment, which asserted that Central failed to timely answer the complaint, and entered default judgment against Central. The court awarded the amount of damages and attorney fees sought in the complaint because Central failed to respond to Adco’s requests for admission which asked Central to admit that the balance sued for was due and accurate. OCGA § 9-11-36 (a) (2); see Atlanta Cas. Co. v. Goodwin, 205 Ga. App. 421, 422 (422 SE2d 76) (1992). The record, however, provided no factual support for the amounts claimed. Held:

Generally, contractual clauses providing advance consent to the jurisdiction of a court which would not otherwise have personal jurisdiction are valid and enforceable in this State. Brown v. United States Fidelity &c., 208 Ga. App. 834, 835 (2) (432 SE2d 256) (1993). Although we have enforced many forum selection clauses pursuant to this rule, including those designating more than one possible forum, never have we confronted one so broad and nonspecific. See, e.g., Lightsey v. Nalley Equip. Leasing, Ltd., 209 Ga. App. 73, 74 (1) (432 SE2d 673) (1993).

Notwithstanding the general rule, the clause at issue is unenforceable for several reasons. Here, the forum selection clause provides no intimation of the forum contemplated. Compare Apparel Resources Intl., Ltd. v. Amersig Southeast, 215 Ga. App. 483, 484 (1) (451 SE2d 113) (1994). In so doing, the clause fails to reflect a meeting of the minds sufficient to show the parties reached an agreement on the forum. See Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assn., 250 Ga. 391, 395 (297 SE2d 733) (1982). Moreover, its lack of specificity impugns a fundamental purpose of such clauses: to eliminate uncertainties by agreeing in advance on a forum acceptable to both parties. The Bremen v. Zapata Off-Shore Co., 407 U. S. 1, 13 (92 SC 1907, 32 LE2d 513) (1972) (admiralty case). The forum selection clause as written would permit Aleo to bring this action in any state in the country. This is unreasonable. Because the forum selection clause at issue is overbroad and so lacking in specificity that it fails to provide any indicia of the parties’ intent, enforcing it would be unreasonable and unjust. Id. at 15. We find the trial court erred in denying Central’s motion to dismiss.

Decided May 2, 1996

Reconsideration denied May 15, 1996

Harmon, Smith, Bridges & Wilbanks, Archer D. Smith III, for appellant.

Andrew R. Bickwit, for appellee.

Judgment reversed.

McMurray, P. J, and Johnson, J., concur.


author: Johnson, Judge.

text:
    A96A0346.
    GREEN v. THE STATE.
    (472 SE2d 1)
   Johnson, Judge.

Isaac Green appeals from his rape conviction and the denial of his motion for new trial. He contends that he was denied his sixth amendment right of confrontation when the trial court did not permit him to cross-examine the victim concerning her past sexual activities with other males. Green argues that he should have been allowed to ask the victim, who was 13 years old when the alleged attack occurred, whether she was sexually active at the time, so that he could establish that she had a motive for falsely accusing him of rape: that is, because she was afraid she was pregnant and did not want her parents to know she was having consensual sex, she told them she had been raped.

The Georgia Rape Shield Statute, OCGA § 24-2-3, prohibits the admission of evidence relating to the past sexual behavior of the complaining witness, except where that behavior directly involved the participation of the accused and the evidence at issue supports an inference that the accused could have reasonably believed that the witness consented to the conduct complained of in the prosecution. Green correctly conceded at trial that the evidence he sought to introduce did not fall within the exception to the statute. See OCGA § 24-2-3 (b). He argues, however, that the victim’s rights under the statute must yield to his constitutional right to confront witnesses against him. Green’s argument is without merit.

“The right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” (Citations and punctuation omitted.) Harris v. State, 257 Ga. 666 (1) (362 SE2d 211) (1987). “An important state interest that the right of confrontation must accommodate is an interest that furthers the truth-finding process. Thé Georgia Rape Shield Statute . . . assists the truth-seeking process by preventing the jury from becoming inflamed or impassioned and deciding the case on irrelevant and prejudicial evidence.” (Citations and punctuation omitted.) Id. at (1) (a).

Green’s contention that the evidence should have been admitted contravenes not only the letter of the Rape Shield Statute, but the spirit of it as well. The evidence Green sought to introduce is precisely the type of irrelevant, prejudicial evidence the statute is intended to exclude. Obviously, evidence that the 13-year-old victim had engaged in sexual activity with other males might inflame or impassion the jury. As for relevance, the evidence Green sought to introduce would have done little, if anything, to support his theory that the witness made false accusations in order to explain a pregnancy. The victim’s boyfriend .testified that he and the victim had been dating for over two years and that they had a child who was ten months old in May 1995, the time of the trial in this case. Contrary to defense counsel’s closing argument, the victim could not have been pregnant with this child at the time she reported the rape in November 1992. Green has not argued that she was pregnant with any other child at the time the assault was reported. Thus, more evidence that the young victim was sexually active would not have contributed materially to the issue of the guilt or innocence of the accused in this case, but most likely would have reflected on the witness’ character. See Veal v. State, 191 Ga. App. 445, 447 (4) (382 SE2d 131) (1989). “Thorough cross-examination is a principal means of ascertaining the truth, but a witness has a ‘right . . . to be examined only as to relevant matter and to be protected from improper questions. . . .’ OCGA § 24-9-62.” Harris, supra at 668 (1) (b). The evidence was properly excluded. See Snyder v. State, 201 Ga. App. 66, 67 (5) (410 SE2d 173) (1991); see also Kilgore v. State, 195 Ga. App. 884 (1) (395 SE2d 337) (1990). We point out that to allow the introduction of evidence of a witness’ past sexual behavior for the purpose of showing that she may have been pregnant at the time the allegations were made and may have therefore made up the charges in an effort to justify or explain the pregnancy, would be to permit defendants to circumvent the Rape Shield Statute and thwart the intent of the legislature in enacting the statute. We cannot allow such a result.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

Decided May 1, 1996

Reconsideration denied May 15, 1996

King, King & Jones, David H. Jones, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Patsy Y. Porter, Assistant District Attorneys, for appellee.


author: Beasley, Chief Judge.

text:
    A96A0075.
    FUNDERBURK v. THE STATE.
    (471 SE2d 535)
   Beasley, Chief Judge.

Funderburk was convicted on charges of driving while under the influence of alcohol to the extent that it was less safe for him to drive, OCGA § 40-6-391 (a) (1), and driving after he was declared a habitual violator and notified that his driver’s license had been revoked, OCGA § 40-5-58 (c).

Arcade City Police Officer Miller stopped Funderburk after he made an unsafe turn and forced another vehicle to leave the road. As Miller approached the car, he noted a strong smell of alcohol. Investigation of Funderburk’s expired license revealed that he was classified as a habitual violator whose license had been revoked. He failed field sobriety tests and was placed under arrest.

1. Funderburk contends the court improperly allowed the State to introduce hearsay testimony that impugned his character. At the scene, he requested that his neighbor, who was a member of the city council and chair of the police committee, be permitted to come and retrieve the car. Miller called the councilman, who arrived shortly and prevailed upon Miller and his superior to give Funderburk “a deal.” No chemical test was administered, although Funderburk had at first agreed to take one, and Funderburk was cited for making an improper left turn. OCGA § 40-6-120 (a) (2). Six months later he was indicted on charges of habitual violator and DUI to the extent that it was less safe for him to drive.

Funderburk moved in limine to exclude as hearsay any testimony concerning the council member’s appearance or his conversations at the scene. The court ruled that any such evidence was not relevant to the charge of DUI. It granted the motion but noted that if the failure to give a chemical test became an issue, such testimony would be admissible. After Funderburk stated that he intended to ask Miller if a test was administered, the court specifically warned: “In which case, I’m going to allow the testimony.” The court denied Funderburk’s request for a continuing objection if the matter came up and stated that the matter should be addressed as needed. The court granted Funderburk’s request that the State be required to approach the bench if it thought “the door had been opened” on the matter.

The State did not address the councilman’s appearance or actions during Miller’s direct testimony. When Funderburk first asked whether a test had been performed, the State approached the bench and an unrecorded conference was held. On redirect, the State asked Miller about the councilman’s request and Miller testified that the reason there was no chemical test was the councilman’s intervention. At no time did Funderburk object to this testimony.

Assuming but not deciding that Funderburk sufficiently preserved this issue for appellate review, there was no error. The court’s order on the motion in limine was followed, at least in regard to the State’s action; the State did not ask about the councilman’s appearance on direct examination, and after Funderburk asked whether a chemical test had been administered, the State immediately approached the bench.

Nor was the testimony inadmissible. Funderburk was charged with violating OCGA § 40-6-391 (a) (1), not with subsection (a) (4), driving while having a blood alcohol concentration greater than 0.10 grams. As the court noted, the lack of a chemical test had no relevance until the defense injected the issue. The question became, “why not?” Under OCGA § 24-3-2, conversations occurring in the course of a legal investigation that explain conduct are not hearsay and are admissible as original evidence. Having made the absence of a test relevant, Funderburk cannot assert that testimony explaining Miller’s failure to give a chemical test was inadmissible. Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982); Chunn v. State, 210 Ga. App. 209 (1) (435 SE2d 728) (1993); Hale v. State, 214 Ga. App. 899, 901-902 (2) (449 SE2d 520) (1994). He has no right to deliberately create a mistaken inference that the test was not given because his condition did not warrant it.

2. He also contends the State failed to prove that he was notified of his status as a habitual violator, an element of the offense of driving while a habitual violator. This attacks the sufficiency of the evidence to support the conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Scott v. State, 216 Ga. App. 692, 693 (1) (455 SE2d 609) (1995). The evidence is viewed with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict. Jackson v. Virginia, supra; Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986).

The law requires that the Department of Public Safety notify a habitual violator of that status and of the revocation of his driver’s license, by certified mail with return receipt requested. OCGA § 40-5-58 (b). Two exhibits were in evidence: 1) a letter of notification; 2) a certified mail return receipt. The only objection Funderburk raised when these documents were tendered was that the notification indicated the exact nature of his prior offenses, and the court ordered the offenses redacted. He now argues there was no evidence the certified mail receipt corresponded to the letter and it only shows he was sent “an unknown article by an unknown agency on an unknown date.”

Decided May 15, 1996.

Whitmer & Law, George H. Law III, for appellant.

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

This new ground is too late. McBride v. State, 213 Ga. App. 857, 858 (3) (c) (446 SE2d 193) (1994). Moreover, the certified mail receipt shows not only his signature but his name and address as it appears on the letter, the same license number that appears on the letter, and the same date of preparation that appears on the letter. It, like the letter, was certified by the Department of Public Safety’s custodian of records, not by someone at “an unknown agency,” and was admissible as primary evidence. OCGA §§ 24-5-20, 24-7-20; Hunter v. Hardnett, 199 Ga. App. 443 (1) (405 SE2d 286) (1991). The documents were sufficient to allow a rational trier of fact to find beyond a reasonable doubt that Funderburk had been notified of his status and the revocation of his driver’s license.

3. Finally, Funderburk contends the court erred in not charging the jury on relevant portions of OCGA § 40-5-55, but he did not submit a written request to charge or object to the charge after it was given. This enumeration thus presents nothing for review. Reagin v. State, 218 Ga. App. 733, 735 (2) (463 SE2d 39) (1995).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A96A0453.
    McGAHA v. THE STATE.
    (471 SE2d 533)
   Beasley, Chief Judge.

McGaha was convicted on charges of pandering (OCGA § 16-6-12), public indecency (OCGA § 16-6-8 (b)), burglary (OCGA § 16-7-1 (a)), and theft by taking (OCGA § 16-8-2). In his sole enumeration, he contends the court erred in sustaining the State’s objection to admission of his Exhibit 1, a certified copy of his plea and sentence in a previous, unconnected case.

The indictment in the instant case alleged that the pandering and public indecency were on May 11, 1994, and that the burglary and theft by taking were on May 19, 1994. Evidence showed the burglary and theft were committed on May 19. The exhibit contained a section titled “Special Conditions of Probation” which document carried the handwritten notation: “Credit for time served since May 17, 1994.”

As to relevancy, counsel stated, “I want the jury to consider the time served,” but he also stated Tm not offering it to show that he was in jail or out of jail.” He declined the court’s offer to allow the document with the “time served” notation redacted. The court noted that keeping track of dates of incarceration is not a court function and not in the knowledge of either the judge signing the plea or the clerk recording it, so the accuracy was not assured. McGaha did not pursue the court’s suggestion that he secure a proper document from the sheriff’s office showing dates of incarceration.

He contends the document was admissible as a public record under OCGA § 24-7-20, which pertains to the authentication of records: “The certificate or attestation of any public officer . . . shall give sufficient validity or authenticity to any copy or transcript of any record ... in his respective office, or pertaining thereto, to admit the same in evidence.” However, it does not provide that such a record will automatically be admissible, only that authenticity is established.

Statutes merely pertaining to evidentiary authentication of documents do not remove hearsay considerations. Comparable to OCGA § 24-7-20 is OCGA § 24-7-8, which addresses the authentication of medical records; it “does not eliminate the rule against hearsay or create a new one.” Giles v. Taylor, 166 Ga. App. 563 (1) (305 SE2d 154) (1983). Accord Moody v. State, 244 Ga. 247, 249 (4) (260 SE2d 11) (1979); Dennis v. Adcock, 138 Ga. App. 425, 427-428 (1) (226 SE2d 292) (1976). As OCGA § 24-7-20 does not address hearsay concerns, it does not require the admission of hearsay merely because the hearsay has been recorded in the court record. See Weksler v. Weksler, 173 Ga. App. 250, 251 (325 SE2d 874) (1985). Regardless of authentication, “the facts stated in [public] documents must have been within the personal knowledge and observation of the recording official or his subordinates.” United Waste, Ltd. v. Fulton County, 184 Ga. App. 694, 695 (1) (362 SE2d 476) (1987). While the subscribing judge or clerk would have personal knowledge of the sentence itself, McGaha does not even suggest that they had personal knowledge of his dates of incarceration.

Had the document been admitted, it would have allowed the inference that McGaha was incarcerated on May 19. But it was not a reliable source of the truth of that assertion, and instead constituted inadmissible hearsay in this regard. OCGA § 24-3-1; see Williams v. Memorial Med. &c., 218 Ga. App. 107, 109 (3) (460 SE2d 558) (1995). The court did not err in rejecting it.

Decided May 15, 1996.

Harry M. Moseley, for appellant.

Garry T. Moss, District Attorney, Kimberly K. Frye, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J, and Blackburn, J., concur.


text:
    A96A0283.
    FIRST UNION NATIONAL BANK OF GEORGIA et al. v. COLLINS.
    (471 SE2d 892)
   Pope, Presiding Judge.

First Union and seven other banks brought this declaratory judgment action against Marcus Collins, as commissioner of the Department of Revenue, to determine the legality of certain service charges the banks levied in 1992 and 1993 against “dormant” instruments on which the banks were directly liable. The parties stipulate these instruments are “official” bank checks, including cashiers’ and certified checks, dividend and interest checks, escrow checks, money orders, and drafts. The checks at issue became “dormant” when the payees did not present them for payment within two years from the date they were issued. Ga. Comp. R. & Regs. 80-1-8-.01 (1) (c). After a designated number of years, the funds represented by these unpresented checks escheated to the State pursuant to the Disposition of Unclaimed Property Act, OCGA § 44-12-190 et seq. (hereinafter “UPA”). See OCGA §§ 44-12-195; 44-12-196. The Revenue Department administers the UPA and claims the banks improperly withheld from the $5.1 million in abandoned funds some $540,000 in service charges. Those service charges represented, at most, $60 per instrument, charged at $5 per month for a maximum of 12 months after the instrument became dormant.

The parties’ arguments center around banking statutes and regulations and provisions of the UPA through which we must sift. In summary, the banks contend they assessed these service charges pursuant to OCGA § 7-1-358, which allows banks to impose reasonable service charges on dormant accounts. They rely on a regulation the Department of Banking & Finance issued in 1984, pursuant to this statute, that defines “dormant accounts” to include “[clertified and [ojfficial checks” which have not been presented for payment within two years of their date of issue. Ga. Comp. R. & Regs. 80-1-8-.01 (l). Subsection (2) of that same regulation allows banks to impose a service charge up to $5 per month for the first 12 months in which an account is dormant. Because the relevant portion of the UPA requires banks to remit abandoned funds “less any lawful charges,” OCGA § 44-12-193, the banks allege the Revenue Department is not entitled to receive those amounts.

The Department argues, and the trial court concluded, that the banking statute and regulation at issue allow service charges only for dormant deposit accounts. The trial court also read OCGA §§ 7-1-372 and 11-3-104 to mean that banks could impose no service charges against the funds which the checks represented.

We reject the trial court’s holding that OCGA § 7-1-358 and Reg. 80-1-8-.01 allow assessment of service charges only against dormant deposit accounts. The statute does not define “dormant account” but does allow banks to assess service charges against dormant accounts “[i]n accordance with and subject to the limitations” of banking regulations. And the regulation defines unpresented certified and official checks more than two years old to be “dormant accounts.” Reg. 80-1-8-.01 (1) (C).

In construing the statutes and regulations in issue, our goal is to determine the intent of the legislature. Dept. of Transp. v. Brown, 218 Ga. App. 178, 180 (2) (460 SE2d 812) (1995). The rules of statutory construction, which are also applicable to regulations, show the trial court’s construction does not comport with the legislature’s goal. Schwartz v. Black, 200 Ga. App. 735, 736 (409 SE2d 681) (1991).

Although subsection two of the regulation does discuss service charges on “deposit accounts,” that reference does not dominate the regulation; it must be construed in light of the entire regulation. Keith v. Johnson, 211 Ga. App. 678, 680 (1) (440 SE2d 230) (1994). Furthermore, statutes and regulations relating to the same subject matter must be construed together and harmonized to ascertain their legislative or administrative intent. Fayette County Bd. of Tax Assessors v. Ga. Utilities Co., 186 Ga. App. 723, 726 (2) (368 SE2d 326) (1988). In this case, another banking regulation requires banks to keep records of “deposits” and segregate those records into categories including “official checks.” Ga. Comp. R. & Regs. 80-1-3-.01 (1) (e). A related banking statute, OCGA § 7-1-4 (17), defines a “depositor” as anyone who “shall deposit money or items for the payment of money in any financial institution,” including “[o]wners of certified or cashiers’ checks.” Thus, the reference in this regulation to service charges on “deposit accounts” does not plainly exclude service charges on official checks. Construing that phrase in light of its use in other statutes and regulations, segregated funds represented by official checks could be considered a “deposit account.” The regulation itself defines a dormant official check as a dormant account. This reading of the regulation reasonably equates dormant deposit accounts with dormant official checks for purposes of service charges. As the parties agree, the banks incur costs in keeping records on and reporting to the Department on both types of dormant accounts.

The history of the UPA further supports the conclusion that the legislature did not intend to prevent banks from deducting service charges on dormant direct-liability instruments. The 1990 version of the UPA represented the legislature’s enactment of the Uniform Unclaimed Property Act promulgated in 1981 by the National Conference of Commissioners on Uniform State Laws. See 8B Uniform Laws Annotated 567 (West 1993) (hereinafter “ULA”). Section 4 of the Uniform Act, applicable to money orders and travelers’ checks, was enacted as OCGA § 44-12-195. Section 5 of the Uniform Act, applicable to certified checks and drafts, was enacted as OCGA § 44-12-196. Sections 4 and 5 of the Uniform Act contained provisions prohibiting banks and other holders from deducting “any charge imposed by reason of the failure to present the instrument for payment unless there is a valid and enforceable written contract between the holder of the instrument pursuant to which the holder may impose a charge, and the holder regularly imposes such charges and does not regularly reverse or otherwise cancel them.” 8B ULA at 605. Our legislature deleted those provisions when it made the Uniform Act state law, and in so doing showed its intent that those provisions not be the law of this state.

Finally, in 1995 the legislature amended OCGA §§ 44-12-196 and 7-1-372 to specifically allow banks to deduct up to 12 months of service charges on dormant official checks. Ga. L. 1995, p. 1368. “If it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of a former statute, this will amount to a legislative declaration of its meaning, and will govern the construction of the first statute.” (Citations and punctuation omitted.) Forrester v. Interstate Hosiery Mills, 194 Ga. 863, 866 (23 SE2d 78) (1942); see Bd. of Trustees, Policemen’s Pension Fund &c. v. Christy, 246 Ga. 553, 555 (1) (272 SE2d 288) (1980). The legislature’s act followed quickly on the heels of a 1994 Attorney General’s Opinion stating that §§ 44-12-196 and 7-1-372 did not allow the service charges at issue. 1994 Op. Atty. Gen. No. 94-18. “The General Assembly apparently [did not approve] of this interpretation of legislative intent for it [has acted] to amend these [sections].” Clarkson Power Flow v. Thompson, 244 Ga. 300 (260 SE2d 9) (1979); see Thompson v. Eastern Air Lines, 200 Ga. 216 (3) (39 SE2d 225) (1946). At the same time it amended these provisions, it made no change to OCGA § 11-3-104, showing the inapplicability of that Code section to the question at hand.

Based on the language of the statutes and regulations involved, and on the intent of the legislature as evidenced by its actions, the service charges imposed on the dormant instruments in issue were “lawful charges” under OCGA § 44-12-193. The banks properly withheld these charges from the Department of Revenue, and the trial court erred in holding otherwise.

Judgment reversed.

Andrews and Blackburn, JJ, concur. Smith, J., disqualified.

On Motion for Reconsideration.

The Department of Revenue argues that Ga. Comp. R. & Reg. 80-1-8-.01 (2) allows assessment of service charges only where a contractual agreement exists between the owner of the dormant account and the bank. We take this opportunity to note that certified checks, cashiers’ checks, and money orders are contracts between the issuing bank and their owners because they represent the banks’ unconditional obligations to pay. See Dolanson Co. v. C & S Nat. Bank, 242 Ga. 681, 683 (1) (b) (251 SE2d 274) (1978); Fulton Nat. Bank v. Delco Corp., 128 Ga. App. 16, 18 (1) (195 SE2d 455) (1973). Thus, a charge of $5 per month on each instrument was proper because the “other evidence of the financial institution’s contractual obligation relative to a deposit account [did] not make provision for a maintenance or service charge on a dormant account. . . .”

Decided April 11, 1996

Reconsideration denied May 16, 1996

Chilivis, Cochran, Larkins & Bever, Nickolas P. Chilivis, John K. Larkins, Jr., Thomas D. Bever, for appellants.

Michael J. Bowers, Attorney General, Ray O. Lerer, Senior Assistant Attorney General, W. Wright Banks, Jr., Assistant Attorney General, for appellee.

Motion for reconsideration denied.

       Wachovia Bank of Georgia, N.A., Trust Company Bank, Trust Company of Georgia, N.A., Trust Company Bank of Northwest Georgia, N.A., Trust Company Bank of Augusta, N.A., Trust Company Bank of Columbus, N.A., and Trust Company Bank of Middle Georgia, N.A.

       That statute reads in full: “In accordance with and subject to the limitation of such regulations as the department [of banking & finance] may prescribe, a bank may, from time to time, charge a dormant account a reasonable service charge.”

       The relevant part of that regulation reads: “(1) Dormant accounts are hereby defined as follows: . . . (c) Certified and Official checks shall be deemed to be dormant when they have not been presented for payment within two (2) years of their date of issue, or if the issuing financial institution has not had correspondence with the registered owner of the check for a period of two (2) years immediately preceding the determination of dormancy.”

       That subsection reads in full: “(2) Where the signature card or other evidence of the financial institution’s contractual obligation relative to a deposit account does not make provision for maintenance or service charge on a dormant account as heretofore described, such a charge may be assessed in an amount not to exceed $5.00 per month. Service charges or maintenance charges assessed pursuant to contractual authority governing the account shall not exceed the greater of $5.00 per month or the per month service charge which the financial institution otherwise assesses against active accounts. No service charge or maintenance charge may be assessed for the dormancy period beyond the first twelve months. Dormant account service charge or maintenance charge may be charged against the account at any time prior to escheat of the account balance under the provisions of the Disposition of Unclaimed Properties Act so long as the total service charge or maintenance charge does not exceed the amount which could have been assessed during the first twelve months of dormancy pursuant to the governing contract between the parties or this regulation.”

       At the time these service charges were made, that statute read: “A commercial bank shall pay all checks drawn on it at par and shall make no charge for the payment of such checks; however, it may deduct a reasonable collection charge covering its actual expenses from the remittance for any check forwarded to it for collection and remittance as a special collection item.”

       That statute requires drafts and checks to “[c]ontain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation, or power given by the maker or drawer except as authorized by this article. . . OCGA § 11-3-104 (1) (b).

       The new statutes, however, do not explicitly condone service charges on dormant money orders. Cf. OCGA §§ 44-12-195; 44-12-196 (1995).