text:
    A93A1895.
    OXFORD v. UPSON COUNTY HOSPITAL, INC. et al.
    (438 SE2d 171)
   Blackburn, Judge.

Carolyn Oxford appeals the trial court’s denial of her motion for new trial following a defendant’s verdict in a jury trial. On appeal, Oxford asserts that the trial court’s jury charge on the issues of causation, failure to exercise ordinary care, and comparative negligence were in error. Oxford’s physician diagnosed Oxford with gastroenteritis and mild dehydration and, thereafter, he checked her into the Upson County Hospital, Inc. (Upson). While a patient at Upson, Oxford fell and struck her head in the bathroom of her hospital room. Oxford then sued Upson and her nurses for medical malpractice.

The evidence presented at trial revealed that Oxford told her nurse that she needed to go to the bathroom. At that time, nothing on Oxford’s chart indicated that she was unable to get out of bed, or that she had been dizzy or lightheaded. Furthermore, Oxford did not tell her nurse that she was dizzy or lightheaded. The nurse assisted Oxford, who had an IV inserted in her left arm, to Oxford’s private bathroom, where the nurse stood by closely. While sitting on the commode, Oxford fainted, striking her head on the wall of the bathroom.

Two expert nurses testified regarding the issue of professional negligence, one on behalf of Oxford and one on behalf of the defendants. Both experts testified that it is the patient’s responsibility to instruct the nurses as to the symptoms being experienced by the patient, such as lightheadedness. Although there was evidence that her personal physician was aware Oxford had experienced dizziness and lightheadedness prior to her admission to Upson, it was uncontroverted that he did not inform anyone at Upson of these symptoms prior to her fall.

In Carreker v. Harper, 196 Ga. App. 658, 659 (396 SE2d 587) (1990), we determined that a charge on comparative negligence was appropriate when the defendant, in a medical malpractice case, contended that the “plaintiff failed to disclose fully all information relevant to her condition at the time [the defendant] examined her and to exercise ordinary care for her own safety by seeking additional medical care when her condition did not improve and subsequently worsened.” The defendant physician diagnosed plaintiff with viral gastroenteritis when in fact she had appendicitis. Id. at 658. The dissent in Carreker focused on the plaintiff’s inability to diagnose herself. However, the case sub judice does not require that Oxford diagnose herself, but that she inform the professionals of her symptoms so that they could exercise their professional judgment.

Decided November 19, 1993.

Newton & Howell, John T. Newton, Jr., for appellant.

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Daniel J. Huff, for appellees.

“When there is any evidence, however slight, upon a particular issue, it is not error for the court to charge the law in relation to that issue. [Cit.] ” (Punctuation omitted.) Hicks v. Doe, 206 Ga. App. 596, 598 (426 SE2d 174) (1992). Viewing the evidence in support of the verdict, we find that sufficient evidence existed for the charges issued by the trial court. Century 21 Mary Carr &c. v. Jones, 204 Ga. App. 96, 97 (418 SE2d 435) (1992).

Judgment affirmed.

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

       Oxford enumerated that the trial court’s charge on contributory negligence was in error; however, the trial court did not charge on contributory negligence and the charge complained of dealt with causation.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A93A2061.
    BAILEY v. CHASE THIRD CENTURY LEASING COMPANY, INC.
    (438 SE2d 172)
   Birdsong, Presiding Judge.

Gregory T. Bailey appeals the grant of summary judgment to Chase Third Century Leasing Company, Inc., in Chase’s suit against Bailey “individually and d/b/a Viva International, Inc.” for debt on two office equipment leases, including computers and furniture. Summary judgment was granted to Chase against Bailey after the trial court denied Bailey’s motion to withdraw admissions which resulted from his untimely answer denying those requests for admission. See OCGA § 9-11-36 (a) (2).

Bailey contends the trial court erroneously denied his motion to withdraw admissions on grounds that Bailey is an attorney and should have known the consequences of failure to answer requests for admission. However, although the trial court found those facts significant, the trial court also found “[Bailey] has not demonstrated that the merits of the action would be subserved by allowing the withdrawal of the responses.”

The admissions which Bailey sought to withdraw are that Viva International, Inc. is a Georgia corporation; that the two leases provide Bailey’s business address as Viva International’s address; that the equipment was delivered to Bailey’s address; that Bailey corresponded with Chase regarding payments due under the leases and submitted partial payments; that Viva is Bailey’s trade name, agent or alter ego; that Bailey does business under the name “Viva”; that Bailey and Viva owe Chase certain sums for payments, late fees, attorney fees and interest; that Bailey ratified Viva’s acts in entering the second lease; that Bailey has possession of the equipment leased; and that Chase owns the equipment which Bailey converted to his own use.

Bailey’s name does not appear in either lease document. The two leases were executed by “A. W. Satterfield” for Viva International, Inc., at an Atlanta office address; the record as cited to us does not resolve the identity of this individual or his connection to Bailey or to Viva. In his answer to the lawsuit, Bailey denied that he executed either lease, denied doing business as Viva International, denied that he leased the equipment from Chase, and denied that any equipment in his possession belongs to Chase. In his affidavit in support of his motion to withdraw admissions, Bailey says he did not, individually or for Viva, enter any lease with Chase; that not all of the items listed were delivered by or obtained from Chase; that he does not do business as Viva nor is it his trade name, agent or alter ego; that he has some of the items leased by Viva in his possession and tried to arrange with Chase to pay “for the items that I have retained pursuant to the leases”; that most of the items were purchased by Bailey or his firm prior to execution of the leases by Viva; and that he was current with payments for all items he tried to assume under the leases. Held:

1. OCGA § 9-11-36 (b) provides that the court may permit withdrawal (1) when the presentation of the merits of the action will be subserved thereby and (2) the party who obtained the admission fails to satisfy the court that withdrawal will prejudice him in maintaining his action or defense on the merits. See Cielock v. Munn, 244 Ga. 810 (262 SE2d 114). Preservation of the merits of the case is subserved by withdrawal of the admissions. In the face of Bailey’s sworn affidavit and other evidence, these admissions create more questions than answers. Admissions created by the failure of a timely denial do not automatically entitle a party to summary judgment because they do not necessarily resolve disputes created by sworn testimony. They do not stand on higher footing than other evidence and do not negate all other evidence in the case.

Secondly, Chase has not shown how withdrawal of the admissions will prejudice it in maintaining its actions on the merits. See Alexander v. H. S. I. Mgmt., 155 Ga. App. 116 (270 SE2d 325). Merely being deprived of judgment or being forced to go to trial is not such prejudice as will prevent withdrawal of admissions. Moore Ventures Ltd. Partnership v. Stack, 153 Ga. App. 215 (264 SE2d 725).If matters “admitted” are in fact false, and if Bailey, having contradicted his admissions by sworn affidavit and other admissible evidence, can demonstrate the falseness of the admissions as he says he can do, the merits of the case are preserved by withdrawal of the admissions. Chase has no right to a judgment based on false “admissions” effected merely because appellant was late in answering the requests for admission, for such false admissions do not subserve the merits.

Chase contends Bailey may get his admissions withdrawn only if he proves that either the admissions can be refuted by admissible evidence having a modicum of credibility or the admissions are incredible on their face, and the denial is not offered solely for purposes of delay. Whitemarsh Contractors v. Wells, 249 Ga. 194 (288 SE2d 198); Intersouth Prop. v. Contractor Exchange, 199 Ga. App. 726 (405 SE2d 764). Bailey’s sworn affidavit and his other evidence are not per se incredible. They raise issues of fact whether he does business as Viva and what equipment was actually leased to, delivered to and not paid for by Bailey. Since the leases do not bear his name, it does not serve the merits of the case to ignore his sworn affidavits in preference for admissions effected only by the technicality of a tardy pleading. The denial of Bailey’s motion to withdraw the admission was error, and the summary judgment based on the admissions was error.

2. Moreover, there are material issues of fact as to what equipment was actually leased and delivered to Viva and whether Bailey assumed an obligation to pay for some of it or had paid for some of it. Self-contradictory evidence of a respondent on motion for summary judgment is construed against him unless it is reasonably explained. Gentile v. Miller, Stevenson &c., 257 Ga. 583 (361 SE2d 383); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). If the admissions, as Bailey contends,, are in fact untrue, the only “reasonable explanation” for the “facts” (and contradictions) created by them is simply that Bailey neglected to answer the requests for admissions on time. It therefore cannot be said those “facts” cannot be reasonably explained. The leases on their face show they were not executed by Bailey. Adjudging the evidence in favor of the respondent on motion for summary judgment (see Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474)), we conclude there are issues of material fact raised by Bailey’s sworn affidavit and other evidence, as to whether he is Viva and whether all the equipment listed was delivered and is in his possession or control.

Decided November 19, 1993.

Giddens, Davidson & Mitchell, Earl A. Davidson, for appellant.

Bisbee, Rickertsen & Herzog, Diane V. Roggen, William A. Dupre IV, Brad A. Baldwin, for appellee.

Therefore, even assuming the trial court correctly denied Bailey’s request to withdraw admissions, these admissions do not alone entitle Chase to summary judgment.

Judgment reversed.

Pope, C. J., and Andrews, J., concur.


author: Johnson, Judge.

text:
    A93A2089.
    ROD’S AUTO FINANCE, INC. et al. v. THE FINANCE COMPANY.
    (438 SE2d 175)
   Johnson, Judge.

The Finance Company (TFC), pursuant to identical written contracts, purchased accounts receivable from Rod’s Auto Finance, Inc. and Universal Quality Motors, Inc., two used car dealerships. Relying on a provision in the contracts, TFC demanded that Rod’s and Universal repurchase several accounts after the debtors defaulted on their loans. Rod’s and Universal repurchased all but ten of the delinquent accounts. Rod’s and Universal then filed a declaratory judgment action seeking a determination that pursuant to the contracts they are not required to repurchase the ten remaining delinquent accounts and they are entitled to a refund from TFC for the accounts they have already repurchased. TFC filed a counterclaim for breach of contract due to the refusal of Rod’s and Universal to repurchase the ten delinquent accounts. The trial court granted summary judgment in favor of TFC as to both the main claim and the counterclaim. Rod’s and Universal filed this joint appeal.

1. Rod’s and Universal challenge the trial court’s finding that they are not entitled to any refund of voluntary payments they made to repurchase some of the delinquent accounts. This challenge is wholly without merit as the uncontradicted material evidence in the record reveals that Rod’s and Universal made the repurchases voluntarily, with knowledge of all the pertinent facts, and without any fraud or deception by TFC. OCGA § 13-1-13. “[T]he party seeking recovery must prove that the payment was not voluntarily made because certain material facts were not known at the time of payment or a valid reason existed for failure to determine the truth. [Cit.]” Ins. Co. of North America v. Kyla, Inc., 193 Ga. App. 555, 556 (388 SE2d 530) (1989). Rod’s and Universal have made no such showing. The trial court therefore correctly granted summary judgment against Rod’s and Universal on their claim seeking a refund from TFC on the accounts they voluntarily repurchased.

2. Rod’s and Universal, relying on section 17 of the contracts, claim that they are not required to repurchase the ten remaining delinquent accounts because all the accounts were sold to TFC “without recourse.” Section 17 provides, “If assigned ‘without recourse,’ the Seller [Rod’s and Universal] does not guarantee to the Purchaser [TFC] that any [debtor] shall make the payments due and payable in accordance with his or her [account]; however, regardless of whether [accounts] are assigned pursuant hereto ‘with recourse’ or ‘without recourse,’ nothing in this section 17 is intended or shall be interpreted so as to excuse or modify any of Seller’s obligations to repurchase [accounts] pursuant to subsection 11.4, above.” Subsection 11.4 (b) provides, “In the event that any [debtor] . . . does not promptly commence making timely payments to the Purchaser, Seller shall, upon Purchaser’s demand, promptly repurchase such [debtor’s account] from Purchaser.”

“Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. Such a contract is the only evidence of what the parties intended and understood by it. No construction is required or even permissible when the language employed by the parties in the contract is plain, unambiguous and capable of only one reasonable interpretation.” (Citations and punctuation omitted.) Paige v. Jurgensen, 204 Ga. App. 524, 525 (1) (419 SE2d 722) (1992). Here, the parties plainly intended that TFC could demand repurchase of an account if the debtor did not promptly commence making timely payments due after the closing date of the contracts; the parties did not, however, provide that TFC could make such a demand if the debtor failed to continue making timely payments after a prompt start. In fact, section 17 of the contracts, read together with subsection 11.4 (b), clearly shows that the parties did not intend for Rod’s and Universal to guarantee timely continued payments by a debtor who had promptly begun making payments.

The trial court did not expressly find, and we cannot determine from the record, the dates that each of the ten debtors were required to begin making their first payments after the contracts’ closing date and whether any of those debtors timely made their first payment. We therefore remand the case to the trial court for an evidentiary hearing on those issues. If there is no genuine issue of material fact that a debtor failed to timely make his or her first payment due after the closing date, TFC is entitled to summary judgment on its claim that the seller of that account must repurchase it. If, on the other hand, there is no genuine issue of material fact that a debtor timely made his or her first payment due after the closing date, TFC is not entitled to summary judgment on its demand that the seller repurchase that account. Either party may file a notice of appeal from the trial court’s ruling made on remand.

Decided November 19, 1993.

Milton N. Bronson, Paul T. Wright, for appellants.

Pursley, Howell, Lowery & Meeks, John R. Lowery, Bryan A. Vroon, for appellee.

Judgment affirmed in part; case remanded with direction.

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


text:
    A93A2205.
    SUMMEROUR v. THE STATE.
    (438 SE2d 176)
   Johnson, Judge.

Torey Summerour appeals from his conviction of possession of cocaine with intent to distribute.

1. Summerour contends that the trial court erred in allowing a deputy to testify about the contents of a missing letter that Summer-our allegedly wrote and sent to his co-defendant. The deputy testified that the co-defendant allowed him to read the letter, in which Summerour asked the co-defendant to admit to the instant drug charge in exchange for money. Summerour correctly notes that the deputy’s testimony was hearsay. However, so long as the letter itself was authenticated and the deputy’s testimony was the best evidence of the letter’s contents, such evidence was admissible as an incriminating statement by Summerour. “[A] voluntary incriminating statement or confession by a criminal defendant is admissible as an exception to the hearsay rule. [Cit.]” Allison v. State, 179 Ga. App. 303, 309 (4) (346 SE2d 380) (1986), rev’d on other grounds at 256 Ga. 851 (353 SE2d 805) (1987).

The State sufficiently authenticated the letter as having been executed by Summerour. “Proof of handwriting may be resorted to in the absence of direct evidence of execution. In such case, any witness who shall swear that he knows or would recognize the handwriting shall be competent to testify as to his belief. The source of his knowledge shall be a question for investigation and shall go entirely to the credit and weight of his evidence.” OCGA § 24-7-6. “A nonexpert witness may identify the handwriting of a particular individual (as he would identify the individual himself), provided he knows the handwriting or is so familiar with it that he would recognize it.” (Citations and punctuation omitted.) Quick v. State, 256 Ga. 780, 783 (4) (353 SE2d 497) (1987). In the present case, the deputy swore that through his work at the jail he is familiar with Summerour’s handwriting and he described several distinguishing characteristics of that handwriting. The State introduced a document containing Summerour’s signature, which, according to the deputy, demonstrated the handwriting characteristics he had described. The deputy testified that the handwriting in the letter sent to the co-defendant was similar to Summer-our’s writing. The trial court correctly ruled that it was for the jury to determine the weight to be given this evidence of the authenticity of the letter.

Moreover, the trial court properly allowed the deputy to testify about the contents of the missing letter. The best evidence rule requires the original of a writing to be produced when the writing is introduced to establish its contents. OCGA § 24-5-4 (a); Shivers v. State, 188 Ga. App. 744, 745 (2) (374 SE2d 233) (1988). However, “OCGA § 24-5-4 (a) makes the best evidence rule inapplicable whenever the absence of the original writing is satisfactorily accounted for. OCGA § 24-5-21 provides that if a paper shall have been lost or destroyed, proof of the fact to the court shall admit secondary evidence. The question of diligence is one for the sound discretion of the court. This rule applies both to secondary documentary evidence and to parol testimony.” (Citations and punctuation omitted; emphasis in original.) McGee v. State, 260 Ga. 178, 179 (3) (b) (391 SE2d 400) (1990). Here, the State satisfactorily accounted for the absence of the letter through the co-defendant, who testified that he discarded the letter after showing it to the deputy. Because the letter was destroyed, the trial court did not abuse its discretion in allowing the deputy’s secondary parol evidence of the letter’s contents.

2. Summerour complains that the court erred in allowing the deputy to testify because his name was not on the witness list provided by the State pursuant to OCGA § 17-7-110. “The purpose of OCGA § 17-7-110 is to afford the defendant a reasonable opportunity to interview witnesses before trial so as to avoid being surprised by testimony at trial. This court and the Court of Appeals have held that the testimony of a witness whose name was not supplied to the defendant does not have to be excluded if other means of protecting the defendant and effectuating the intent of the statute can be found. And, in instances when the trial court has allowed the defendant an opportunity to interview unlisted witnesses, it has been held that the purpose of the statute has been satisfied, and that the' trial court properly allowed the witnesses to testify.” (Citations and punctuation omitted.) White v. State, 253 Ga. 106, 109-110 (3) (317 SE2d 196) (1984). Here, the court gave Summerour the opportunity to interview the deputy during the trial’s overnight recess. Summerour did in fact interview the deputy at that time and thereafter told the court that the deputy “was most cooperative and forthright.” Under these circumstances, the purpose of OCGA § 17-7-110 has been satisfied and the trial court properly allowed the deputy to testify.

Decided November 19, 1993.

Joseph J. Drolet, for appellant.

Thomas J. Charron, District Attorney, William M. Clark, Debra H. Bernes, Assistant District Attorneys, for appellee.

3. Summerour contends that the court erred in admitting his prior conviction for sale of cocaine as similar transaction evidence because the prior and instant offenses are not sufficiently similar. This contention is without merit. The record shows that in both instances, which occurred within half a mile and a year of each other, Summer-our possessed several pieces of “crack” cocaine that were individually packaged in small plastic bags. This evidence was similar enough to show Summerour’s course of conduct and scheme or plan to engage in the business of distributing cocaine. Collins v. State, 205 Ga. App. 341, 343-344 (2) (422 SE2d 56) (1992). The trial court did not err in admitting the similar transaction evidence. Everhart v. State, 209 Ga. App. 82, 83 (1) (432 SE2d 670) (1993).

Judgment affirmed.

McMurray, P. J., concurs. Blackburn, J., concurs in judgment only.


text:
    A93A2254.
    ROGERS v. THE STATE.
    (438 SE2d 140)
   Johnson, Judge.

Cameron Rogers appeals from his conviction of armed robbery.

1. Rogers contends that the trial court erred in denying his motion for a mistrial after a police officer testified about a statement made by Rogers’ co-defendant. The officer testified, “After we got the suspect from under the house, they was asking him about the gun. He claimed he throwed the gun in the woods.” Rogers argues that the court erred in denying his motion for a mistrial because the statement was not provided to him before trial as required by OCGA § 17-7-210 and the court failed to hold a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), to determine the voluntariness of the statement. Rogers’ reliance on OCGA § 17-7-210 and Jackson v. Denno is misplaced because those authorities expressly apply only to a defendant’s own statement. Here, Rogers did not make the statement in question; rather, it was made by Rogers’ co-defendant. The authorities cited by Rogers are applicable to the co-defendant’s challenge to the admission into evidence of his own statement, but they are inapplicable to Rogers’ challenge to its admissibility. Rogers has no standing to assert and rely on his co-defendant’s rights.

Rogers further objects that the court erred in denying his motion for a mistrial because under OCGA § 24-3-52 the confession of a conspirator is admissible only against himself and because the prosecutor should have instructed the police officer not to testify about the inadmissible statement. Pretermitting the fact that the prosecutor did not know about the statement prior to the officer’s testimony, these further objections were not raised in the trial court and therefore cannot be raised for the first time on appeal. Dupree v. State, 206 Ga. App. 4 (1) (a) (424 SE2d 316) (1992); Johnson v. State, 204 Ga. App. 277 (1) (419 SE2d 118) (1992).

Moreover, after the officer testified about the co-defendant’s statement, the trial court instructed the jury to disregard and give no consideration to any prior references to the co-defendant. “Where a witness voluntarily injects into the trial improper and prejudicial matters, whether a mistrial must be granted or whether the effect can be corrected by instructions to the jury is a matter within the discretion of the trial court. The trial court’s ruling will not be disturbed on appeal absent an abuse of discretion, which does not exist if the curative instructions given can serve to prevent the alleged harmful testimony from having any prejudicial impact.” (Citations and punctuation omitted.) Freeman v. State, 205 Ga. App. 328, 329 (422 SE2d 229) (1992). In the instant case, the trial court did not abuse its discretion in denying Rogers’ motion for a mistrial because its cautionary instruction was sufficient to prevent the testimony from having any prejudicial impact. Mathis v. State, 204 Ga. App. 896, 898-899 (3) (420 SE2d 788) (1992); Lee v. State, 204 Ga. App. 283 (2) (418 SE2d 809) (1992).

2. Rogers’ complaint that the court erred in failing to give his requested jury charges concerning robbery, force, intent and taking is completely without merit. “The failure of the trial court to charge in the exact language requested is not reversible error where the charge given substantially covered the same legal principles.” (Citations and punctuation omitted.) Kennedy v. State, 205 Ga. App. 152, 156 (5) (b), (d) (421 SE2d 560) (1992). Here, the court’s instructions on armed robbery, robbery, theft by taking and intent fully and accurately covered the same legal principles contained in Rogers’ requested charges. The court therefore did not err in refusing to charge in the exact language requested. Rogers’ further objections to the charges actually given were not properly preserved for appellate review. Craig v. State, 205 Ga. App. 856 (1) (424 SE2d 902) (1992).

3. Rogers enumerates that the trial court erred in admitting into evidence the written statement he gave to the police. The only cognizable assertion Rogers makes in support of this enumeration is that the court’s alleged error in admitting into evidence the statement of his co-defendant somehow led to the erroneous admission of his own statement. Rogers does not further explain this specious assertion and cites no relevant authority in support of it. This enumeration of error is therefore deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2).

Decided November 19, 1993.

Ronnie J. Lane, for appellant.

J. Brown Moseley, District Attorney, for appellee.

Even if the enumeration were not abandoned, it is wholly without merit as Rogers’ statement clearly was admissible. The undisputed evidence shows that Rogers was fully informed of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), and signed a form waiving those rights before making the written statement. In addition, Rogers and his attorney both signed a form stipulating that a hearing under Jackson v. Denno, supra, was unnecessary because Rogers gave the statement freely, voluntarily and after having been fully advised of all his rights. The trial court committed no error in allowing the statement into evidence. See generally Moore v. State, 207 Ga. App. 802 (430 SE2d 115) (1993).

Judgment affirmed.

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


author: Blackburn, Judge.

text:
    A93A2292.
    WAIRE v. THE STATE.
    (438 SE2d 142)
   Blackburn, Judge.

This appeal is from the trial court’s denial of Waire’s motion to withdraw her guilty plea.

Waire was arrested on a charge of fraudulent attempt to obtain a refund in violation of OCGA § 16-9-56. Four days after her arrest and incarceration, Waire entered a plea of not guilty. The trial court appointed the public defender to represent Waire. Waire’s counsel testified that he attempted to arrange a plea, but that Waire was unresponsive and that she kept saying her husband would take care of it while she looked around the courtroom. Seven days thereafter, during a mass arraignment, Waire changed her plea from not guilty to guilty, without further consultation with her counsel.

During the mass arraignment, the trial court informed an unspecified number of defendants that they had the right to not incriminate themselves, that by a plea of guilty they relinquish that right, that they had a right to a jury trial, the right to confront their accuser, the right to present witnesses and offer evidence on their own behalf, that the State had the burden to prove their guilt beyond a reasonable doubt, that they were presumed innocent until proven guilty, and the maximum punishment they faced. The trial court further stated “[a]ny of you who have not talked to an attorney, if you want to talk to an attorney I’ll make sure you get that opportunity.” Thereafter, the trial court asked Waire directly if she had responded to the questions asked regarding her rights. She responded that she had and that there was nothing she wanted to tell the court. The trial court then sentenced Waire on her guilty plea.

“Wavier of counsel and the voluntary, intelligent entry of guilty pleas, cannot be presumed from a silent record. . . . It is the responsibility of the trial judge, when the accused is without counsel, to clearly determine whether there has been a proper waiver.” (Citations and punctuation omitted.) Washington v. City of Atlanta, 201 Ga. App. 876 (412 SE2d 624) (1991). The State contends that the trial court met its burden when, in the context of the mass arraignment, it informed Waire and the other defendants of their rights. “In Turner v. State, 162 Ga. App. 806 (1) (293 SE2d 67) (1982), however, we held that ‘it is difficult to imagine a mass arraignment procedure which could satisfy the trial court’s burden.’ Here, as in Turner, supra at 806-807 (1), ‘we find there was no examination by the court of the circumstances of this defendant’s waiver of counsel. The court’s burden ... is to investigate these circumstances personally with particular regard and attention to the nature of the crimes charged and the possible penalties. . . .’” Washington, supra at 876. The trial judge who appointed a public defender to Waire heard her guilty plea outside the presence of the public defender, without any inquiry regarding her relinquishment of her right to counsel. Therefore, the trial court’s acceptance of Waire’s guilty plea is reversed. Id.

An appellate court reviewing a guilty plea must “determine whether (1) the defendant freely and voluntarily entered his guilty plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea.” Scurry v. State, 194 Ga. App. 165, 166 (390 SE2d 255) (1990) citing Goodman v. Davis, 249 Ga. 11, 13 (287 SE2d 26) (1982). The State has the burden of establishing that the guilty plea was intelligently and voluntarily entered. Scurry, supra at 166.

The evidence presented during Waire’s hearing on her motion to withdraw her guilty plea, established that Waire was taking several medications for psychological problems. During Waire’s testimony, it took her several minutes of questioning before she could remember the name of the state in which the hearing was being held. It is clear that neither Waire’s waiver of counsel nor entry of a guilty plea was voluntarily and intelligently entered.

Decided November 19, 1993.

James N. Finkelstein, for appellant.

Larry B. Mims, Solicitor, for appellee.

Judgment reversed.

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


text:
    A93A2344.
    THE STATE v. GIVENS.
    (438 SE2d 387)
   Birdsong, Presiding Judge.

Pursuant to OCGA § 5-7-1 (1), the State appeals the order of the superior court dismissing the indictment against Carroll C. Givens. The indictment contained only one count accusing appellee Givens, on the date averred of unlawfully operating a vessel in Baker County, to-wit: in an area designated as a no boating zone.

Appellee/defendant Givens filed a motion to dismiss the indictment on the ground that the Department of Natural Resources is without authority to regulate boating on the creek in question, as this area has been deemed private property by the Commissioner of the Department of Natural Resources. The parties stipulated that the “Commissioner of the Georgia Department of Natural Resources, issued an administrative order, which declared the Ichauwaynochaway Creek to be a non-navigable stream. The [administrative] order cites OCGA § 44-8-3, which states ‘the owner of a non-navigable stream [is entitled to] the same exclusive possession of the stream as he has of [any] other parts of [his] land.’ The [administrative] order then notes [the provisions of] OCGA § 52-7-26 [currently OCGA § 57-7-25 (f)] . . . and [then] declares ‘that portion of Ichauwaynochaway Creek in Baker County, Georgia [the portion here in issue in this case] to be a BOAT KEEP-OUT ZONE. . . . Wardens . . . subsequently erected ‘no boating’ markers along the banks of the creek designated in the administrative order. . . . The defendant was arrested . . . and charged with ‘operating vessel in zoned no boat allowed area’ [pursuant to the provisions of the administrative order designating that area of the creek to be a ‘BOAT KEEP OUT ZONE,’ regulated by the department]. The defendant was arrested within the area referenced in the administrative order.”

In its order dismissing the indictment, the trial court concluded: “The stream involved is a ‘creek,’ is nonnavigable and the owner . . ; is entitled to the exclusive possession of the stream. The stream in question is not ‘waters of this state’ as defined in OCGA § 52-7-3 (26). The ‘department’ has no authority to regulate boating on said creek; consequently, the commissioner’s order is null and void, and defendant’s motion to dismiss is hereby granted.” Held:

It is the substance and function of a motion and not its nomenclature that controls. State v. Allen, 192 Ga. App. 730, 734 (386 SE2d 394). The substance and function of this motion is that of a demurrer. See generally Ga. Crim. Trial Prac., §§ 14-19, 14-20 (1992 ed.). However, the demurrer in this case is a speaking demurrer, as it attempts to add facts not otherwise apparent on the face of the indictment by means of stipulation. “ ‘A speaking demurrer is one which alleges some new matter, not disclosed by the pleading (indictment) against which the demurrer is aimed and not judicially known or legally presumed to be true. Such a demurrer presents no question for decision, and should never be sustained.’ ” (Citations omitted.) Walters v. State, 90 Ga. App. 360, 365 (83 SE2d 48). Speaking demurrers present no legal authority for quashing an indictment. Id. Speaking demurrers are void. Ga. Crim. Trial Prac., supra at p. 381, § 14-20. “A demurrer may properly attack only defects which appear on the face of the indictment and a demurrer which seeks to add facts not so apparent but supply extrinsic matters must fail as a speaking demurrer.” State v. Holmes, 142 Ga. App. 847, 848 (237 SE2d 406). Here the procedure used was “in effect an attempt to convert the hearing on the demurrer into what, in civil practice, would be termed a motion for summary judgment.” Id. at 849. There is “no authority for such practice.” Id. Ignoring the purported stipulation of fact in our consideration of this appeal, in accordance with the appellate procedure employed in Holmes, supra at 849, we find that the indictment was sufficient on its face to withstand both a general or a special demurrer. Hence it was error for the trial court to sustain the demurrer by dismissing the indictment. Compare Holmes, supra; Walters, supra.

We make no intimation as to whether the facts adduced would take this case beyond that conduct prohibited by OCGA § 52-7-20 (f). Neither do we intimate whether the area of the creek, at issue, was or was not public waters within the meaning of OCGA § 52-7-25 (f); moreover, whether adjacent landowners owned the bed of that portion of the creek at issue and, thus, could control the surface of the waters to the exclusion of the general public (compare Lanier v. Ocean Pond Fishing Club, 253 Ga. 549, 550 (322 SE2d 494)) appears to involve a foundation issue regarding legal title to the stream bed. See generally Ga. Const. 1983, Art. VI, Sec. VI, Par. III (1); Parker v. Durham, 258 Ga. 140 (365 SE2d 411).

Judgment reversed.

Pope, C. J., and Andrews, J., concur.

Decided November 19, 1993.

J. Brown Moseley, District Attorney, for appellant.

Dorough & Sizemore, Kermit S. Dorough, Jr., for appellee.


text:
    A93A2346.
    MAXWELL v. THE STATE.
    (438 SE2d 389)
   Blackburn, Judge.

Harvey Wilburn Maxwell was convicted by a jury of a violation of the Georgia Controlled Substances Act for his possession of cocaine. Maxwell appeals the trial court’s denial of his motion to suppress the evidence.

On appeal, Maxwell first argues that the search of his person exceeded the scope allowed under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). In the absence of consent, we would agree. However, the State contended and the trial court agreed that Maxwell consented to the search of his person. “Consent searches are valid but where the State relies upon consent, it has the burden to demonstrate from all the circumstances that the consent was voluntary and not the result of duress or coercion, express or implied. If it appears that a valid consent was given to search, such consent eliminates the need for either probable cause or a search warrant. In determining whether a search and seizure was reasonable, an appellate court can consider all relevant evidence of record, wherever located, including that adduced at a suppression hearing before trial and that adduced during trial. [Cit.] Moreover, the trial court’s decision, express and implied, as to credibility and disputed questions of fact at a suppression hearing must be accepted on appeal unless clearly erroneous. [Cits.]” Garcia v. State, 207 Ga. App. 653, 654 (428 SE2d 666) (1993).

On January 4, 1992, at approximately 12:30 a.m., two members of the Cobb County Sheriff’s Department observed Maxwell standing on a street corner attempting to flag down cars. Prior to stopping, the officers passed Maxwell three or four times in their marked sheriff’s car. Although the officers testified that it was a known drug area, they did not witness any drug transactions involving Maxwell. At the hearing on Maxwell’s motion to suppress, Officer Anderson testified that he and his partner approached Maxwell and that he asked Maxwell “what he was doing.” Maxwell responded that he was just standing on the corner. Officer Anderson then asked Maxwell if he had any drugs or weapons on him. When Maxwell responded that he did not, Officer Anderson asked if he could check. Maxwell agreed. Officer Anderson then searched Maxwell and discovered a cellophane bag containing small ziplock baggies which contained a substance resembling crack cocaine. Upon chemical analysis, only a trace of cocaine was discovered in the substance seized from the ziplock baggies. At trial, Officer Tankersley testified that Maxwell gave consent for the search of his person. Maxwell did not present any evidence at the motion to suppress hearing or at trial.

Decided November 19, 1993.

Dudley & Wright, Charles K. Wright, Jr., for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

In order to determine whether Maxwell’s consent was given voluntarily, we must examine “the totality of the circumstances, including the age of the accused, his education and intelligence, the length of detention, whether he was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of these factors. [Cits.]” (Punctuation omitted.) State v. Jackson, 201 Ga. App. 810, 815 (412 SE2d 593) (1991). This examination assists in our determination as to “whether a reasonable person would feel free to decline the officers’ request to search or otherwise terminate the encounter. [Cit.]” (Punctuation omitted.) Id. at 814.

In the present case, the evidence revealed that Maxwell was 29 years old at the time of his arrest and that he had previous felony convictions. The length of the inquiry made of Maxwell was very short; he was asked only two questions before he agreed to consent to be searched. Furthermore, there was no evidence that Maxwell was treated harshly or threatened in any way. Therefore, the only evidence shows that Maxwell voluntarily consented to be searched.

Judgment affirmed.

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


text:
    A93A2355.
    PROCTOR SQUARE, LTD. v. PROCTOR SQUARE APARTMENTS.
    (438 SE2d 144)
   Birdsong, Presiding Judge.

Proctor Square, Ltd., appeals the grant of summary judgment to Proctor Square Apartments, Ltd.

Appellee sold an apartment complex to appellant and retained a security deed. Appellant filed bankruptcy, and appellee foreclosed, selling the property to itself. Appellee then filed suit against appellant to get $14,427.50 which had been held by the apartment management company but was paid by cashier’s check to the attorneys for appellant and appellee.

On appeal, appellant debtor points out that appellee’s lawsuit is entitled “Complaint On Promissory Note” and that the complaint states the foreclosure sale to itself garnered an amount less than appellant owed. Appellant contends appellee cannot get a deficiency because appellee did not get judicial confirmation of the foreclosure sale (OCGA § 44-14-161), and that the contract of the parties provides that appellee would not sue or otherwise seek legal recourse against appellant for any deficiency or other claims after foreclosure. Held:

There is no magic in the nomenclature of a pleading; it is construed to serve the best interests of justice and judged by its substance rather than by its name. Chan v. W-East Trading Corp., 199 Ga. App. 76, 77 (403 SE2d 840). Appellee’s complaint sets forth the history of the case, including the fact that the foreclosure brought less than was owed, but the complaint does not seek a deficiency; it seeks money which it says was rental income in which it had a security interest. Appellant argues nothing to show it is entitled to the money. Appellant simply argues that the law prohibits appellee from seeking a deficiency when appellee did not get confirmation of the sale, and that the parties’ agreement prohibits appellee from filing suit for any other claims.

We are certain this is not a suit for deficiency. It appears that the parties are so fixed that according to appellee, they agreed to let the management company convert the $14,427.50 to a cashier’s check made out jointly to the parties so that the management company would be spared the expense of interpleader while appellant and appellee fight it out. However, the check is not made to the parties, but is made to “Dock H. Davis and Robert F. Woodland,” who are the attorneys for the parties.

This suit was thus one which appellant agreed appellee could bring, by agreeing to let the management company pay the disputed funds to appellant’s and appellee’s attorneys jointly. Appellant is therefore estopped to claim that this is a suit for deficiency or for any other claim which is prohibited by law or by the original agreement of the parties, and is estopped to claim that appellee in any way waived this claim or that appellee is estopped to claim this money.

Appellant shows no actual entitlement to the money. Ownership of the property is now in appellee by foreclosure and sale, and there appears no genuine dispute that the money represents rental income in which it had a security interest and to which appellant has no actual right.. No genuine issue of material fact remains for a jury, so the trial court’s judgment is correct. OCGA § 9-11-56 (c).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.

Decided November 19, 1993.

Robert F. Woodland, Jr., for appellant.

Dock H. Davis, for appellee.


text:
    A93A2483.
    BELL et al. v. FORSTER.
    (438 SE2d 145)
   Blackburn, Judge.

The appellee, Scott J. Forster, was one of two attorneys who represented Arthur Bell in an action filed in the Superior Court of Gordon County by Quality Mat, Inc. and Robert Arafe, individually and as sole stockholder of Quality Mat, Inc., against Bell. A counterclaim was apparently filed in this matter although there is no record of same before us.

Appellant Yetta Bell, the mother of Arthur Bell, subsequently intervened in the action. After a jury trial, judgment was entered in favor of the Bells against Quality Mat, Inc. and Robert Arafe in the amount of $225,000 on September 15, 1992. The total judgment plus 12 percent interest was ultimately received by appellants.

Appellants dispute the fees of appellee Forster and those of attorney Benton, although the dispute with Benton is not involved in this appeal.

While there was no written fee agreement between appellants and Forster at the time he was retained, Forster’s undisputed testimony shows that he was to be paid $75 per hour for his services in this case, plus expenses. Forster testified that he had received $3,800 in fee payments from appellants as of September 21, 1992. At that time he forwarded a bill to appellants for attorney fees of $18,450 (246 hours @ $75 per hour) plus expenses of $1,137.50, less $3,800, for an account balance of $15,787.50.

Appellants disputed Forster’s September 21, 1992 bill. The parties then entered into a written fee settlement agreement whereby Forster would receive 15 percent of sums collected by him toward the judgment, which agreement is quoted during the hearing, but is not a part of the record before us.

Forster thereafter collected the sum of $18,701.07 from a single account of the judgment debtor and received the sum of $2,805.16 therefrom as attorney fees. Additionally, it is undisputed that in February 1993, Forster intercepted and turned over to the sheriff, checks payable to the judgment debtor from its customers totaling $83,143.

In order to satisfy the judgment and to obtain release of the checks intercepted by Forster, the judgment debtor paid the sum of $208,575.79 into the registry of the court and paid the additional sums of $5,621.72 in interest and $18,728.47 on the principal judgment amount directly to appellants on February 26, 1993. The trial court withheld $15,000 of the sums paid into court until a hearing could be had on the attorney fees liens filed pursuant to OCGA § 15-19-14.

On May 6, 1993, appellants’ new counsel requested a continuance of the hearing on the attorney fees dispute, which the court granted until May 20, 1993, with an admonition that the matter would be heard at that time. On May 20, 1993, yet another attorney appeared on behalf of appellants who did not appear, testify or introduce evidence at the hearing.

At the conclusion of the hearing, the transcript reflects that the trial court awarded Forster the sum of 15 percent of $83,143 ($12,471.45), noting that said award was less than that to which appellee would have been entitled under a quantum meruit theory.

1. The Bells initially argue that the trial court erred in granting Forster attorney fees based on quantum meruit. However, contrary to the Bells’ contention, the trial court did not award fees to Forster based upon a quantum meruit theory of recovery; rather, the fees were awarded pursuant to the terms of the contingency fee settlement agreement of the parties. Moreover, the transcript does not show that this issue was raised below, and “[i]t is well-settled that enumerations of error which raise questions for the first time on appeal present nothing for decision.” (Citation and punctuation omitted.) Peters v. State, 206 Ga. App. 143, 145 (2) (424 SE2d 372) (1992). Accordingly, the Bells’ first enumeration of error presents nothing for appellate review.

2. Appellants’ failure to testify or to present any evidence and their failure to include in the record the subject bills or fee agreement in this matter, leaves no basis for concluding that the trial court erred in any way in this matter. The burden is on the party alleging error to show it affirmatively by the record. Moye v. State, 127 Ga. App. 338 (193 SE2d 562) (1972).

We also reject the Bells’ argument that the trial court erred in failing to hold as a matter of law that the accounts receivable of Quality Mat, Inc. were not collected. Contrary to the Bells’ contentions, Forster was not required to successfully negotiate the checks before he became entitled to attorney fees. The lien attached to all of the proceeds of the accounts receivable recovered through Forster’s efforts to secure satisfaction of the judgment. The sums paid into court by the judgment debtor were paid in part to obtain the release of the checks intercepted by Forster. Inasmuch as the contingency which was a condition precedent to Forster’s entitlement to the fees had been complied with, the trial court did not err in finding that Forster was entitled to attorney fees based upon 15 percent of the corporation’s accounts receivable that he collected ($83,143). Boddy Enterprises v. City of Atlanta, 171 Ga. App. 551, 553 (320 SE2d 374) (1984); see also Burnette v. Bradley, 190 Ga. App. 427 (1) (379 SE2d 225) (1989). Accordingly, this enumeration is also without merit.

Decided November 19, 1993.

Grant, Konvalinka, & Grubbs, John R. Anderson, Carole Y. Lynch, for appellants.

Scott J. Forster, pro se.

Judgment affirmed.

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


text:
    A93A2565.
    PARKER v. WYNN.
    (438 SE2d 147)
   Blackburn, Judge.

On March 8, 1991, the appellant, Christopher Parker, by next friend brought this action against the Harris County School District and James Wynn, alleging that Wynn’s negligent supervision of a high school classroom resulted in a permanent injury to Parker’s right eye. The trial court eventually granted summary judgment for the school district and Wynn on the basis of sovereign or official immunity, and Parker appeals from that grant of summary judgment for Wynn.

It appears from the record that Wynn was a teacher in charge of a senior physical education class at Harris County High School. On November 18, 1987, written examinations were being administered to senior and freshmen physical education classes in the school gym. As the students reported to the gym, Wynn stood at the doorway instructing them not to change clothing. When the tardy bell rang, Wynn went to his office to retrieve his roll book and the test papers. While he did so, one of the senior students threw pecans at a group of freshmen students, striking Parker’s right eye.

Although the action in this case was filed after the 1991 amendment of Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983, the cause of action accrued prior to the effective date of that amendment. Accordingly, the 1991 amendment of that constitutional provision regarding sovereign immunity is inapplicable here, and sovereign immunity could still be waived to the extent of any liability insurance provided. Curtis v. Bd. of Regents &c. of Ga., 262 Ga. 226 (416 SE2d 510) (1992); Thigpen v. McDuffie County Bd. of Ed., 255 Ga. 59 (335 SE2d 112) (1985).

In moving for summary judgment, the school district established that it had not purchased liability insurance, and for that reason had not waived its sovereign immunity. Wynn, however, was insured under a private liability insurance policy issued to the Professional Association of Georgia Educators. It is undisputed that his alleged negligent supervision of his class constituted a discretionary act performed in the exercise of his official capacity as teacher, involving no wilfulness, malice, or corruption, for which he would enjoy immunity in the absence of a waiver. See Sisson v. Douglas County School District, 181 Ga. App. 77 (351 SE2d 272) (1986). The sole issue in this appeal thus is whether Wynn’s private liability insurance resulted in a waiver of that immunity otherwise available to him. We conclude that it did not.

Prior to the 1991 amendment of Art. I, Sec. II, Par. IX of the Georgia Constitution, the defense of sovereign immunity was waived for tort claims against the State or its departments and agencies to the extent of any liability insurance coverage provided for such claims. However, nothing in that former constitutional provision authorized an individual to waive sovereign immunity for either the State or himself by purchasing private liability insurance covering his acts.

“Immunity from suit is a basic attribute of sovereignty. The sovereignty of the State is supreme, and to maintain that sovereignty the supremacy must also be maintained. . . .” (Citation and punctuation omitted; emphasis supplied.) Sikes v. Candler County, 247 Ga. 115, 117 (274 SE2d 464) (1981). The immunity is vested in the sovereign, and assertion or waiver of that defense is the original prerogative of the sovereign, and not the individual. See, e.g., Martin v. Ga. Dept. of Public Safety, 257 Ga. 300 (357 SE2d 569) (1987) and Swofford v. Cooper, 184 Ga. App. 50 (360 SE2d 624) (1987), where the immunity defense was unavailable to State officials employed by departments of the State which had waived immunity by purchasing liability insurance.

“No action can be ‘maintained against officials of the State in their official capacity without the consent of the State, for it is, in effect, a suit against the State. (Cits.)’ McCoy v. Sanders, 113 Ga. App. 565, 570 (148 SE2d 902) (1966).” Holloway v. Dougherty County School System, 157 Ga. App. 251, 253 (277 SE2d 251) (1981). In the instant case, there being no waiver of immunity by the school district, this action against Wynn in his official capacity as agent of that entity is likewise barred by official immunity.

Parker contends that shielding Wynn with official immunity obviates his need for any private insurance and thus serves no purpose other than providing a windfall for the private insurance carrier in this case. However, notwithstanding the immunity he enjoys for claims based on his discretionary acts performed in the exercise of his official duties, Wynn remains subject to suit individually for his acts done with wilfulness, malice, or corruption, or for his negligent performance of purely ministerial functions. Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980). Inasmuch as Wynn’s private insurance protects him from that exposure, finding Wynn immune in this case does not bestow a windfall upon the private insurer.

Decided November 19, 1993.

Agnew, Schlam & Bennett, G. Michael Agnew, for appellant.

Lewis, Taylor & Lee, John M. Taylor, Jeffrey M. Todd, for appelleé.

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A92A1017.
    MUNSON v. THE STATE.
    (438 SE2d 123)
   Andrews, Judge.

In Munson v. State, 206 Ga. App. 76 (424 SE2d 290) (1992), we affirmed Munson’s conviction for growing marijuana in violation of the Georgia Controlled Substances Act and, based upon the good faith exception to the exclusionary rule, rejected his argument that the trial court erred by failing to grant his motion to suppress. Subsequent to our decision, the Georgia Supreme Court decided in Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992), that the good faith exception to the exclusionary rule was not applicable as a matter of state law in Georgia, and remanded this case for our reconsideration. Our task now is to determine whether the warrant used to search Mun-son’s residence was supported by probable cause. The facts necessary to this determination are the following.

At the hearing on the motion to suppress, Henry County Officer Scott Perry testified that he presented only the information in the affidavit to the magistrate issuing the warrant. The affidavit at issue stated: “Within the past (24) twenty-four hours, prior to date and time of this affidavit, your Affiant was contacted by a Confidential and Reliable Informant. Said source stated to your affiant that he/she was told by an unwitting [third party source of information] that said third party had been at 451 Old Hudson Bridge Road within the past (7) seven days and observed marijuana being grown at said residence. Said unwitting further stated to Confidential Informant that he/she had been in residence before and observed marijuana and other controlled substances being used and sold at 451 Old Hudson Bridge Road. Said third party did not know that the Confidential Informant would contact the Sheriff’s Department and give them the information. Said Confidential Informant was also told by unwitting that Alvin Munson works for the Clayton County Water Authority and Alvin Munson has marijuana growing in Clayton County on property that is owned by Clayton County Water Authority.”

Officer Perry then swore that he had conducted an independent investigation in which he confirmed Munson’s address, that Munson owned a car, worked for Clayton County Water Authority and that he had been arrested before. Further, the affiant swore that he contacted the Clayton County Narcotic Task Force which investigated and found marijuana growing on the Clayton County Water Authority property. The affidavit concluded with a description of the location of the property.

At the hearing on the motion to suppress, Officer Perry testified that the confidential informant had never previously provided him with information, but that a Clayton County narcotics detective had informed him that based on information from this informant, four previous arrests for marijuana and cocaine possession had been made. Officer Perry further testified that due to a mistake on his part this information was omitted from the affidavit and was not provided to the magistrate. See Gary, supra at 577. Officer Perry testified that neither he nor the confidential informant knew the name of the “unwitting” who related the information to the informant.

“In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we employ the ‘totality of the circumstances’ analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by this court in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984). . . . Under that analysis, ‘(t)he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud(ing)’ that probable cause existed. (Cit.)” Gary, supra at 577. “An informant’s veracity, reliability, and basis of knowledge are ‘highly relevant in determining the value of his report’ and while these elements are not ‘entirely separate and independent elements to be rigidly exacted in every case,’ they are ‘closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.’ Illinois v. Gates, supra at 230.” State v. Brown, 186 Ga. App. 155, 157 (2) (366 SE2d 816) (1988); see also State v. White, 196 Ga. App. 685 (396 SE2d 601) (1990).

The “totality of the circumstances” analysis applies also in situations in which there are two informers. “As in the case at bar, these rules governing the evaluation of information from the primary unnamed informant govern also evaluation of information from the secondary sources.” (Citations and punctuation omitted.) State v. Hockman, 171 Ga. App. 504, 505 (320 SE2d 241) (1984); see generally State v. Fincher, 161 Ga. App. 556, 557 (288 SE2d 643) (1982).

Here, Munson argues that the magistrate did not have a substantial basis for concluding that probable cause existed since the affidavit does not support the reliability of either informant and the information contained therein was equivalent to a rumor. We disagree. The “totality of the circumstances” approach from Illinois v. Gates, supra, replaced the “two-pronged test” from Aguilar v. Texas, 378 U. S. 108 (84 SC 1509, 12 LE2d 723) (1964), and Spinelli v. United States, 393 U. S. 410 (89 SC 584, 21 LE2d 637) (1969), which required a showing of 1) the informant’s reliability and 2) the source of the informer’s information. See State v. Stephens, supra at 182. That two-pronged test was rejected as “hypertechnical and divorced from the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” (Citations and punctuation omitted.) Curry v. State, 255 Ga. 215, 217 (1) (336 SE2d 762) (1985). Thus, although information regarding the reliability of the informant is highly relevant to the totality of the circumstances determination, the absence of significant information regarding reliability is not necessarily fatal to an affidavit. Indeed, “[c]orroboration of the information given by an informant may provide a substantial basis for finding probable cause, despite deficiencies in the showing of the informant’s veracity, reliability, or basis of knowledge. Curry v. State, [supra]; Mincey v. State, 180 Ga. App. 898 (350 SE2d 852) (1986).” Butler v. State, 192 Ga. App. 710, 712 (1) (386 SE2d 371) (1989).

In the instant case, the fact that the only indication in the affidavit of the reliability of either source was the affiant’s conclusory statement that the confidential informer was “reliable” does not end our consideration. This deficiency was corrected by the corroboration of the information which provided a substantial basis for finding probable cause. The independent investigation Officer Perry undertook established that Munson lived where the “unwitting” said he did and confirmed that Munson was employed by the Clayton County Water Authority. His investigation confirmed that marijuana was growing at Munson’s workplace, Clayton County Water Authority property. Finally, Officer Perry learned that Munson had been arrested previously. The corroboration of the information given by the “unwitting” provided the probable cause to believe that contraband was located on Munson’s property. Compare State v. White, 196 Ga. App. 685 (396 SE2d 601) (1990).

Decided November 3, 1993

Reconsideration denied November 22, 1993

Edea M. Caldwell, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.

“A grudging or negative attitude by reviewing courts toward warrants, is inconsistent both with the desire to encourage use of the warrant process by police officers and with the recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case. A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant. . . . Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” (Citations and punctuation omitted.) Mincey, supra at 900; see also Adams v. State, 201 Ga. App. 12, 14 (2) (410 SE2d 139) (1991). Accordingly, the trial court correctly denied the motion to suppress.

Judgment affirmed.

Birdsong, P. J., and Beasley, P. J., concur.

       Although we make no determination here regarding whether the “unwitting’s” ignorance that the confidential informer would communicate this information to the police indicates reliability, we note that this factor has been considered as an indicator of reliability. See State v. Hockman, supra at 505.


text:
    A93A1154.
    WASHINGTON v. GEORGIA FIREMEN’S PENSION FUND et al.
    (438 SE2d 118)
   Andrews, Judge.

Joel Lee Washington was employed full time as a firefighter from 1979 until he was injured in an accident in the course of his employment on February 25, 1991. He applied for disability retirement benefits pursuant to OCGA § 47-7-1 et seq. He was examined by a doctor who verified that he was physically disabled, but who also concluded that Washington’s disability was partially the result of mental problems.

On April 29, 1992, the Board of Trustees of the Georgia Firemen’s Pension Fund denied Washington’s claim under OCGA § 47-7-102 (d), based on the fact that his disability stemmed in part from mental, psychological or emotional causes. Pursuant to that denial, on June 26, 1992, Washington filed a complaint in the Fulton County Superior Court against the Georgia Firemen’s Pension Fund and the Board of Trustees of Georgia Firemen’s Pension Fund, and John C. Kilpatrick, Jr., as secretary/treasurer. The complaint sought benefits Washington claimed he was due under OCGA § 47-7-1 et seq. Defendants filed a motion for summary judgment, arguing that OCGA § 47-7-102 (d) (4) precluded his disability retirement benefits since his disability resulted from, or was partially attributable to a mental, emotional or psychological illness or condition. The trial court granted the motion, concluding that there was no indication that the Board of Trustees abused its discretion in denying the benefits.

Washington then filed an application for discretionary appeal in this court, which we granted.

1. In his first enumeration of error, Washington claims that the superior court applied an incorrect standard in reviewing the Board of Trustees’ decision. He contends that OCGA § 47-7-1 et seq., provides no standard of review which would authorize the superior court’s limited inquiry and that the superior court should have conducted a de novo hearing as to his claim for benefits.

OCGA § 47-7-23 delineates the powers and duties of the Board of Trustees of the Georgia Firemen’s Pension Fund and provides that the board shall rule upon all applications. If an applicant is dissatisfied with the board’s determination, OCGA § 47-7-124 (b) provides the only guidance for further action: “[n]o action shall be brought contesting any determination of the board with respect to . . . eligibility for retirement or disability benefits, the amount of retirement or disability benefits payable, or the termination or suspension of retirement or disability benefits after the expiration of 60 days from the date on which written notice of the final determination of the board is mailed by first-class mail to the last known address of the fireman . . . and no court shall have jurisdiction of any action brought after the expiration of such period. The written notice provided for in this subsection shall contain notice of the limitation established by this subsection.”

Washington argues that this section grants an implied right to appeal by establishing a statute of limitation. Furthermore, he argues that OCGA § 5-3-29 provides that in any case where not otherwise provided by law, an appeal to the superior court is a de novo investigation and that the superior court was obligated to conduct such a de novo review here. Alternatively, he argues that the decision of the Board of Trustees involved a question of law and, as such, required a de novo review.

Appellees argue that the internal operating regulations of the board provide for an appeal. These regulations are not in the record before us, and we are unable to take judicial notice of them. See generally Oliver v. City of Macon, 241 Ga. 306 (245 SE2d 280) (1978). Further, appellees contend that, contrary to Washington’s contentions, OCGA § 47-7-124 does not provide a process for appeal, but that the proper remedy under that section is an action for mandamus. For our purposes here, it is not necessary to resolve this question, since the narrow question before us is the applicable standard of review and that standard is the same regardless of whether the suit is a mandamus action or a judicial review of the board’s decision. The applicable standard is that the “trial court must affirm the Board’s decision unless the Board acted arbitrarily, capriciously, and unreasonably.” Carnes v. Charlock Investments, 258 Ga. 771, 772 (1), n. 1 (373 SE2d 742) (1988).

Although the Board of Trustees may not be an administrative agency subject to the Administrative Procedures Act, see Op. Atty. Gen. U74-72, the superior court employed the proper standard for reviewing this administrative body’s decision. See generally OCGA § 50-13-19 (h) (6) (specifying that in reviewing an administrative decision the trial court may not substitute its judgment for the board’s on questions of fact, but may reverse if the administrative decision is arbitrary or capricious). When a factual dispute has been resolved by an administrative body which is statutorily vested with the responsibility to decide that dispute, the superior court is limited to determining whether there has been an abuse of discretion. See Russell v. Odom, 154 Ga. App. 547 (269 SE2d 27) (1980).

This standard of review is consistent with that provided for in OCGA § 47-17-1, with respect to the Peace Officers’ Annuity and Benefit Fund. OCGA § 47-17-81 (p) provides that the review by the superior court “shall be conducted by the court without a jury and shall be confined to the record. The court shall not substitute its judgment for that of the board as to the weight of the evidence on questions of fact. The court may affirm the decision of the board or remand the case for further proceedings. The court may reverse the decision of the board if substantial rights of the petitioner have been prejudiced because the findings, inferences, conclusions, or decisions of the board, are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the board; (3) Made upon unlawful procedure; (4) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (5) Arbitrary or capricious.”

Denied November 2, 1993

Reconsideration denied November 22, 1993

Davidson & Strain, John M. Strain, for appellant.

Michael J. Bowers, Attorney General, Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, for appellees.

In this case, there was no error in the trial court’s failure to conduct a de novo hearing.

2. In two more enumerations of error, Washington claims that the superior court erred in granting summary judgment to appellees and that the court erred in failing to consider the fact that Washington is totally physically disabled and incapable of performing his work-related tasks, regardless of any emotional or psychological disabilities. The court found that Washington was physically disabled, and that his disability stemmed, in part, from mental, emotional, or psychological conditions. OCGA § 47-7-102 (d) (4) provides that: “[n]o benefit shall be payable under this Code section for any disability which results from or is attributable to: [m]ental, emotional, or psychological illness or condition.”

There was various medical evidence that Washington’s disability was partially caused by mental problems. One doctor’s opinion was that Washington’s “problem is lumbosacral pain and depression and anxiety.” Using the standard of review set forth above, we find no abuse of the superior court’s discretion in its affirmance of the board’s denial of benefits pursuant to OCGA § 47-7-102 (d).

Judgment affirmed.

Pope, C. J., and Johnson, J., concur. Birdsong, P. J., disqualified.

       In Pulliam v. Ga. Firemen’s Pension Fund, 262 Ga. 411 (1) (419 SE2d 918) (1992), our Supreme Court determined that the applicant for pension benefits had no property right in the benefits, since the statute regarding such benefits incorporated legislative changes applicable to the pensions. Thus, the extraordinary remedy of mandamus was appropriate, see City of Macon v. Herrington, 198 Ga. 576 (32 SE2d 517) (1944), since an action for damages for breach of contract would not be appropriate. Compare City Council of Augusta v. Mulcay, 112 Ga. App. 817, 820 (1) (146 SE2d 354) (1965). See also Barnett v. Fulton County, 255 Ga. 419 (339 SE2d 236) (1986) (writ of mandamus was proper against members of the pension plan boards for Fulton County employees under OCGA § 42-8-43.1); Swann v. Bd. of Trustees &c. Benefit System, 257 Ga. 450 (360 SE2d 395) (1987); see generally Allison v. Domain, 158 Ga. App. 542 (281 SE2d 299) (1981).


text:
    A93A1495.
    JORDAN v. THE STATE.
    (438 SE2d 371)
   Andrews, Judge.

Jordan, convicted of two counts of solicitation to commit murder and two counts of attempt to commit the murders of her husband and her lover’s wife, appeals the judgment entered on the jury’s verdict.

Viewed in favor of the verdict, the evidence was that Jordan and her husband, Bert, had been married 14 years and had two children. He was an insurance adjuster and she sold Tupperware and had become a manager in the organization. Through her Tupperware activities, Jordan met Bill and Shirley Tucker. Shirley sold Tupperware and Bill attended conventions with her and the Jordans. Several years prior to the current incident, Bill and Jordan had engaged in an affair which had been discovered by Bert Jordan. He confronted them and Jordan assured Bert that it would not happen again. Bert believed that Jordan had ceased having contact with Bill, although he knew she continued to work with Shirley.

Bert entertained neighbors and friends with a July 4th party in 1990, sometime after discovering the affair. Unknown to him, Jordan had invited both Shirley and Bill Tucker. At this point, Bert became concerned that the affair had rekindled. He placed a tape machine on the telephone in his home office, a phone to which Jordan had access. In monitoring this tape, Bert overheard a conversation between Darla Ridenbaugh and Jordan in which Jordan was discussing overdosing Bert on his heart medication by grinding up some of his pills and placing them in his food. Bert contacted the police.

Ridenbaugh and Jordan had first discussed Jordan’s desire that Bert go away in a face-to-face meeting at Ridenbaugh’s home. After this conversation, Ridenbaugh was concerned about Jordan’s intentions and called her husband at his job to see what she should do. He suggested calling Bert and advising him of this threat or calling Jordan on the telephone to see if she had been serious in her threat. When Ridenbaugh called, Jordan answered the phone and the call taped by Bert occurred. After this call, Ridenbaugh was waiting for her husband’s next break on his job so she could call him again. At this point, she was arrested by officers who had obtained a warrant for her arrest as a result of Bert’s contact with police. After agreeing to cooperate with the investigation, Ridenbaugh called Jordan from the sheriff’s department on July 17, pretending to be at her home. She asked Jordan if she could talk “privately” and Jordan advised Bert was not home. Ridenbaugh told Jordan that she was going to Florida, her home state, the next day and knew a high school classmate who could “take care of your problem,” referring to Bert. Jordan then asked “What about Shirley [Tucker]?” Told this was an option, Jordan said they both could not die at once and that, since Bert had double indemnity insurance coverage, he had to die at work. Jordan called Ridenbaugh’s home on Wednesday morning July 18 and, when she did not pick up the phone, left this message on the answering machine: “I’m getting ready to leave the house and . . . wanted to leave a message. In regards to your trip to Florida, yes for both, and I’ll talk to you about it later.”

As a result of this conversation, GBI agent Foster went undercover as “Bobby,” Ridenbaugh’s friend. A beeper number was given to Ridenbaugh, who provided it to Jordan. On July 18, 1990, Foster was beeped by Jordan around 8:00 p.m. Upon calling the number displayed, Foster spoke to Jordan, advised he was the friend from Florida, and was calling about the “construction job.” Arrangements were made to meet sometime the next day. Later, Ridenbaugh called Jordan with the time and place of the meeting and told her to bring a picture of Bert and Shirley as well as a description of vehicles driven by Bert.

Foster, wearing a recording device, met at Shoney’s on Wednesday, July 19, 1990, with Jordan and Ridenbaugh. Bert’s work habits and location were discussed, along with the fact that insurance coverage doubled if he died while working. Also, Foster demanded $500 for his time in discussing the matter and the timing of the two killings was discussed. Jordan admitted that she had ground up some of Bert’s heart medication, but said she had not done anything with it. Jordan and Foster also discussed Shirley’s situation and that she would be alone in her home after school started and her grandchildren, whom she kept, returned to school. They agreed that the first hit would cost $1,500, with $500 paid upfront and $1,000 the day Foster killed Bert, plus a portion of the insurance proceeds. A second $1,000 would be due when Shirley was killed. Jordan was to get the $500, a .38 handgun, and a box of shells for Foster.

Jordan told Foster she wanted him to wait until after August 16 to pursue Bert because Bert was taking their two children to Florida while she went to the Tupperware convention and she wanted the children to have good memories of this time with their father after he was gone.

On Thursday, July 19, 1990, Jordan got money from her Tupperware account and $200 from her son’s savings account. She was the only signatory on this account, although Bert made the deposits into it.

Jordan went to a pawn shop recommended by Ridenbaugh. There, she advised the clerk that her husband had been robbed and she was going on a trip to Florida and he wanted her to have a handgun to take with her. She purchased a .38 handgun and a box of shells.

On Friday, July 20, 1990, Jordan met Foster at Shoney’s and gave him the gun, the ammunition, and $500. Foster said “I kill your husband the 21st [of August].” Jordan concurred. Shirley was to be killed three or four months later.

After the initial conversation with Ridenbaugh, all meetings and phone conversations were on audio tape and some were videotaped by the police with the permission of Foster and Ridenbaugh.

1. The first two enumerations allege error in the denial of Jordan’s motion to suppress evidence derivative of an illegal wiretap and the court’s reliance on the inevitable discovery rule to allow the remaining tapes into evidence. They will be considered together.

Jordan’s motion was premised on Bert Jordan’s violation of OCGA § 16-11-62 which prohibits any person in a clandestine manner from overhearing or recording a private conversation. The motion sought the suppression of these original recordings made by Bert Jordan of Ridenbaugh and Jordan’s initial telephone conversation. The court granted this portion of the motion and these tapes were not introduced, played, or referred to during the trial.

The motion further alleged that, “absent a showing that the aforementioned electronic surveillance was conducted pursuant to the Omnibus Crime Control and Safe Streets Act (Title III) of 1968 [18 USCA § 2510 et seq.] as well as . . . §§ 16-11-63 through 16-11-69 any reliance on said illegal activity and consequential investigation based on the fruits of said illegal activity would be in violation of the Fourth and Fourteenth Amendments of the United States Constitution, Protection of Illegal Search and Seizure. ...” Jordan urged suppression of all evidence compiled during the undercover investigation as “fruit of the poisonous tree.”

The trial court concluded, based on the testimony of Darla Ridenbaugh, that she had already formed the intent to contact the authorities before she was arrested and agreed to cooperate. Therefore, the conversation illegally taped by Mr. Jordan would have inevitably come to the attention of the authorities through a legal source, Ridenbaugh.

(a) First, the differences in the federal and state wiretap statutes must be acknowledged. 18 USCA § 2515 states that “[w]henever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, . . . before any court, ... of the United States, a State, ... if the disclosure of that information would be in violation of this chapter.” (Emphasis supplied.)

OCGA § 16-11-67, the comparable Georgia provision, states that “[n]o evidence obtained in any manner which violates any of the provisions of this part shall be admissible in any court of this state except to prove violations of this part.” No “derivative” language appears in this provision.

Both federal and state provisions provide that, before any law enforcement officer may intercept communications, the statutory steps requiring preliminary judicial approval of such interception must be strictly followed. 18 USCA §§ 2510 through 2520; OCGA §§ 16-11-60 through 16-11-69; Evans v. State, 252 Ga. 312, 315 (1) (314 SE2d 421) (1984). When a state or federal agent has improperly procured a wiretap order, or there has been any failure to precisely comply with the requirements for sealing and handling the tapes, the taped evidence is inadmissible, regardless of the good faith of the government agents. E.g., King v. State, 262 Ga. 147, 148 (414 SE2d 206) (1992), citing United States v. Rios, 495 U. S. 257 (110 SC 1845, 109 LE2d 224) (1990).

Even under the federal provisions, if an improper wiretap is initiated by a private individual without the preknowledge and acquiescence of law enforcement authorities, this will not preclude use by the government of the knowledge obtained thereby. Cf. United States v. Manning, 542 F2d 685, 686 (6th Cir. 1976); United States v. Clegg, 509 F2d 605, 609 (3), (4) (5th Cir. 1975).

(b) Since, as acknowledged by the parties and the trial court in his order, there was no compliance by Bert Jordan with either the state or federal statutes regarding wiretapping, the inquiry remaining is whether the “fruit of the poisonous tree” doctrine, although not specifically included in the verbiage of OCGA § 16-11-67, nonetheless applies to exclude the remaining tapes and testimony by Ridenbaugh and the undercover agent which were made in compliance with OCGA § 16-11-66.

Jordan’s reliance in this regard on United States v. Vest, 813 F2d 477 (1st Cir. 1987) and Ransom v. Ransom, 253 Ga. 656 (324 SE2d 437) (1985) is not persuasive.

Ransom was a divorce case in which the husband had taped the wife’s phone conversations with a third party without her knowledge in violation of OCGA § 16-11-62 (4). These tapes were not allowed to be used for any purpose at the divorce trial, including impeachment. Likewise, here, no use at all was allowed to be made of the tape illegally made by Bert Jordan. Also, in Vest, a secret tape was made by one co-conspirator in a face-to-face conversation with his police officer co-conspirator regarding payment of a bribe. The trial court granted Vest’s motion to suppress the tape in his subsequent perjury trial and the government appealed.

The First Circuit refused to allow use of illegally taped material which had been obtained by private parties without complicity of government agents. As pointed out above, 18 USCA § 2515 includes the additional “no evidence derived therefrom” language. The First Circuit did not accept the argument of the United States based on the “private source” exception to the exclusionary rule, discussed infra.

(c) As acknowledged in the wording of her motion to suppress, the genesis of the “poisonous tree” concept is a violation of the Fourth Amendment.

“Turning from the Fourth Amendment to the separate consideration of the exclusionary rule, that rule never applies in the absence of a Fourth Amendment violation, and sometimes does not apply when such violation occurs. [Cit.] The application of the exclusionary rule has never been sanctioned by the [federal] Supreme Court in any context other than a Fourth Amendment violation by law enforcement officers. . . .” (Footnote supplied.) State v. Young, 234 Ga. 488, 489 (1) (216 SE2d 586) (1975); Jackson v. State, 208 Ga. App. 391, 394 (430 SE2d 781) (1993); State v. Almand, 196 Ga. App. 40, 41 (395 SE2d 609) (1990); see United States v. Ford, 765 F2d 1088, 1089 (1) (11th Cir. 1985).

“Searches and seizures by private individuals, even if unreasonable, are not prohibited by the Fourth Amendment, absent a showing that the private individual acted as an instrument or agent of the government. [Cits.]” Britt v. State, 186 Ga. App. 418, 420 (3) (367 SE2d 298) (1988) (search of unclaimed luggage by airline agent pursuant to airline policy in presence of police officer, evidence admissible). E.g., Loden v. State, 199 Ga. App. 683, 687 (1) (406 SE2d 103) (1991) (detention and search of customer by K-Mart loss prevention agent); Anderson v. State, 193 Ga. App. 6, 7 (2) (387 SE2d 148) (1989) (opening of package containing drugs by Federal Express agent); State v. Lovig, 189 Ga. App. 436 (376 SE2d 229) (1988) (opening of apartment by resident manager for entry by cable repairman tracing illegal splice).

There having been no illegal conduct by state agents involved in Bert Jordan’s initial taping, the “fruit of the poisonous tree” doctrine is not applicable to this situation. So holding does not deprive Jordan of the protection of OCGA § 16-11-62 et seq., since filing a complaint against Bert Jordan for the illegal taping is still an option available to her.

(d) Since there was no state participation in the initial taping, the “inevitable discovery rule” relied upon by the trial court is also not applicable. Barnett v. State, 204 Ga. App. 491, 494 (1) (420 SE2d 43) (1992).

A ruling of the court below which is right for any reason will be affirmed and the denial of Jordan’s motion to suppress is affirmed. Dorminy v. Dorminy, 242 Ga. 326 (249 SE2d 49) (1978).

2. Jordan’s third enumeration claims error in the denial of her motion for mistrial based on the state’s failure to disclose exculpatory material.

Jordan did file a pretrial Brady motion seeking exculpatory material and the trial court conducted an in-camera review of the file of the district attorney. The court concluded that the only material arguably covered was a summary of Jordan’s statement made shortly after her arrest and this was provided to Jordan pre-trial.

During the cross-examination of Agent McCravy at trial, Jordan’s counsel asked for and was allowed to review the notes from which the agent was testifying. At that time, counsel became aware that there was a tape recording of the officers’ interview with Ridenbaugh after her arrest. The tape was produced and played for Jordan outside the jury’s presence and Jordan made a motion for mistrial, contending that Ridenbaugh’s expression of disbelief that Jordan was serious about killing Bert was exculpatory and had not been provided.

Pretermitting the issue of whether another’s subjective belief as to the intent of the accused is “exculpatory,” Brady is not violated when the evidence is made available during the trial, as occurred here. Dennis v. State, 263 Ga. 257, 259 (5) (430 SE2d 742) (1993); Moulder v. State, 207 Ga. App. 335, 337 (5) (427 SE2d 793) (1993). Thereafter, there was no error in the denial of the motion for mistrial on this basis.

3. In her fourth enumeration, Jordan contends that the trial court’s recharge on entrapment violated OCGA § 17-8-57.

Defendant’s Request to Charge No. 28 dealt with entrapment, OCGA § 16-3-25. During the initial charge to the jury, the court, with the acquiescence of the defense, gave the charge on entrapment contained in Vol. II, Suggested Pattern Jury Instructions, Criminal Cases, pp. 37-38. As the jury was retiring to deliberate, one juror requested a copy of the definition of entrapment and “what entrapment is not.” At that juncture, no response was made to the inquiry. After the jury had begun deliberations, the court received a note from the foreperson, the juror who initially asked the question, which stated: “We request a copy of the definition of entrapment including what is not entrapment. This would be very helpful to our deliberations.”

Defense counsel initially concurred in the court’s decision to orally recharge the standard entrapment charge, but disagreed with the court’s addition to that charge of the following: “Entrapment is the seduction or improper inducement to commit a crime and not the testing by trap, trickiness or deceit of one suspected. The discovery of the crime and procurement of evidence by deception are not prohibited. A trap may be set.”

Decided November 1, 1993

Reconsideration denied November 22, 1993

Drew Findling, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

The objection made was that “Your Honor through this charge takes sides. You’re telling the jury this is a case of undue persuasion as [the district attorney] told you. ... I mean the court is no longer unbiased.”

“It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. [Cits.]” Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982). So considering the charge, it fully and accurately informed the jury of the elements of the defense of entrapment.

Responding to an inquiry from the jury with an accurate legal statement, which the quoted language was, see Thomas v. State, 134 Ga. App. 18, 22 (2) (213 SE2d 129) (1975); Sutton v. State, 59 Ga. App. 198, 199 (200 SE 225) (1938), is not a violation of OCGA § 17-8-57. There was no error.

4. The remaining enumeration is without merit, no such motion for directed verdict having been made.

Judgment affirmed.

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

       Bert Jordan already owned a number of guns, which were kept at their home.

       Not every failure of government agents to comply with the statutory provisions of Title III, other than those dealing with obtaining the court order and intercepting oral communications, will make the material obtained suppressible. United States v. Donovan, 429 U. S. 413, 432 (III) (97 SC 658, 50 LE2d 652) (1977).

       Recordings made with the consent of one of the parties to the conversations are not violative of the Georgia statute. Mitchell v. State, 239 Ga. 3 (1) (235 SE2d 509) (1977); Sheppard v. Reid, 198 Ga. App. 703 (402 SE2d 793) (1991).

        Vest is merely persuasive authority since rulings of trial and intermediate federal courts are not binding on the trial court or this court. Head v. State, 253 Ga. 429, 430 (1) (322 SE2d 228) (1984); Felker v. State, 252 Ga. 351, 361 (1b) (314 SE2d 621) (1984).

       The “fruit of the poisonous tree doctrine” is an extension of the exclusionary rule. Wong Sun v. United States, 371 U. S. 471 (83 SC 407, 9 LE2d 441) (1963).

         Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).


text:
    A93A2233.
    KONG et al. v. SHEARSON LEHMAN HUTTON MORTGAGE CORPORATION.
    (438 SE2d 132)
   Blackburn, Judge.

The appellants, Chun and Michelle Kong, appeal from the trial court’s confirmation of the judicially ordered resales of four town-homes foreclosed upon pursuant to the power of sales contained in four separate deeds to secure debt acquired by the appellee, Shearson Lehman Hutton Mortgage Corporation (Shearson), formerly Shearson Lehman Mortgage Corporation. The sole issue presented in this appeal is whether, in confirming the resales, the trial court erred as a matter of law in its construction of OCGA § 44-14-161 (b).

Sandra Frady, the original mortgagor, purchased four substantially identical townhomes in Rockdale County on September 27, 1985, executing security notes in the amount of $52,938 and deeds to secure the indebtedness on each of the properties in favor of the original mortgagee, Nationwide Lending Group, Inc. Frady subsequently transferred her interest in the properties to her former husband, Charles Frady, on May 1, 1989, pursuant to a property settlement agreement in their divorce action. On May 2, 1989, the Kongs acquired the townhomes through a transfer from Charles Frady. Thereafter, payments were not made pursuant to the terms of the security notes, and the notes were declared in default. After notice and advertisement, Shearson conducted nonjudicial foreclosure sales of the properties on June 4, 1991. As the sole bidder, Shearson purchased each of the properties for $41,500, and since that time, has been in possession of the townhomes.

On July 1, 1991, Shearson reported the nonjudicial foreclosure sales to the Superior Court of Rockdale County pursuant to OCGA § 44-14-161 (a), and petitioned the court for confirmation of the sales. The Kongs responded to the petition, opposing confirmation based upon the alleged failure of the foreclosure sales to produce the true market value of the properties. During the consolidated evidentiary hearing of October 2, 1992, on the confirmation of the sales, Shearson’s expert opined that the properties were each sold at the true market value of $41,500. The expert testimony presented by the Kongs showed that the true market value of each of the properties at the time of the June 4, 1991 sales was $52,500. At the conclusion of the confirmation hearing, the trial court verbally set aside the original sales and ordered resales of the properties without intimating the fair market value of the properties or the basis for its refusal to confirm the sales. The Kongs did not appeal the trial court’s decision.

After additional notice and advertisement, Shearson conducted resales of the foreclosed properties on January 5, 1993. Shearson was again the sole bidder, and purchased Unit 627 for $46,000, Unit 629 for $48,000, and Units 631 and 635 each for $48,500. Within 30 days of the resales, Shearson reported the sales to the court and requested confirmation of the resales. After a hearing on March 4, 1993, where the evidence produced indisputably showed that the properties were purchased for their true market value on the date of the resales, the trial court confirmed the resales by written order of May 25, 1993. This appeal followed.

The Kongs assert that the trial court erred in its construction of OCGA § 44-14-161 (b). The Kongs maintain that under this statute the trial court should have required Shearson to show the true market value of the properties on the date of the initial foreclosure sales. To conclude otherwise, they contend, would unfairly hold them accountable for the subsequent decline in the value of the properties after the initial sales. We disagree.

“To confirm a foreclosure sale of real estate, without legal process, ‘(t)he court shall require evidence to show the true market value of the property sold under the powers [of sale contained in the deed to secure debt] and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.’ OCGA § 44-14-161 (b).” (Emphasis supplied.) Tarleton v. Griffin Fed. Savings Bank, 202 Ga. App. 454 (1) (415 SE2d 4) (1992). OCGA § 44-14-161 is in derogation of common law and must be strictly construed. Bentley v. North Ga. Production Credit Assn., 170 Ga. App. 361 (1) (317 SE2d 339) (1984). The issue in a confirmation proceeding is whether the property sold brought, at the time of the sale sought to be confirmed, its true market value; what the property may have brought or what it may have been regarded as being worth on the market at a time relative to the sale is not controlling. See Fleming v. Fed. Land Bank of Columbia, 148 Ga. App. 765 (252 SE2d 653) (1979); Thompson v. Maslia, 127 Ga. App. 758, 764 (195 SE2d 238) (1972). In addition, the seller of the foreclosed property is not the insurer of its market value at the time of a judicially ordered resale.

Applying this interpretation of OCGA § 44-14-161 (b) to the facts of the case sub judice, we must conclude that the trial court did not err as a matter of law in confirming the resales based upon the undisputed evidence of the true market value of the properties on the date of the resales. Since the initial foreclosure sales were set aside, those sales were no longer binding, and the parties were returned to the posture they occupied prior to the initial sales. Cf. Rogers v. Fidelity Fed. Savings &c. Assn., 180 Ga. App. 330 (349 SE2d 7) (1986). The resales were the only viable sales sought to be confirmed by Shearson at the March 4, 1993 hearing, and OCGA § 44-14-161 (b) specifically limits the determination of the true market value of foreclosed property to the sale sought to be confirmed. While the Kongs argue that they should not bear the loss from the decline in the value of the properties after the initial foreclosure sales, the initial sales were not confirmed at their request. They did not appeal the trial court’s order setting aside the initial foreclosure sales and directing Shearson to resell the foreclosed properties, and cannot now complain merely because the resales of the properties did not bring the amounts that they desired.

Decided November 9, 1993

Reconsideration denied November 22, 1993

Wood & Perry, Jere F. Wood, for appellants.

Campbell, Martin & Manley, David B. Manley III, Kimberly E. Hall, for appellee.

Judgment affirmed.

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

       Shearson acquired the deeds to secure debt through a series of successive transfers from the original mortgagee, Nationwide Lending Group, Inc.

       In her response to Shearson’s application for confirmation, Sandra Frady maintains that the Kongs assumed the outstanding indebtedness on the properties as a result of the transfer of the properties from Charles Frady and this loan assumption was approved by Shearson. Neither Sandra Frady nor Charles Frady are involved in this appeal.

       At the time of the initial foreclosure sales, Shearson maintains that the outstanding indebtedness on each of the properties was approximately $51,501.47.

         Under this statute, within 30 days of the foreclosure sale, a report of the sale must be made to the judge of the superior court of the county where the land is located.

       At the time of the resales, Shearson asserts that the outstanding indebtedness was $65,283.23 on each property.

       True market value, which is often used interchangeably with fair market value, is the price that the property will bring when it is offered for sale by one who is not obligated, but has the desire to sell it, and is bought by one who wishes to buy it, but is not under a necessity to do so. Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258 (1) (424 SE2d 889) (1992).