text:
    A94A0654.
    WALKER v. THE STATE.
    (444 SE2d 824)
   Beasley, Presiding Judge.

Walker appeals from his conviction on one count of criminal attempt to murder (OCGA § 16-4-1), two counts of false imprisonment (OCGA § 16-5-41), two counts of conspiracy to murder (OCGA § 16-4-8), two counts of aggravated sodomy (OCGA § 16-6-2), two counts of aggravated assault (OCGA § 16-5-21), and one count of burglary (OCGA § 16-7-1). Walker was tried with Mercer, who is not a party to this appeal.

The evidence is construed most favorably to the verdict. One victim was Walker’s wife, and the other victim was his wife’s daughter of a previous marriage. On October 1, 1992, the daughter entered the house shared with her mother in Columbus. She was surprised by Mercer, who had a knife, and was forced to remove her clothes and perform oral sodomy. She was then tied up. Her mother entered the house, answered the ringing telephone, and was also surprised by Mercer. The daughter listened on an extension telephone and told the caller to summon the police while Mercer made the mother continue the conversation and then hang up.

Mercer forced the mother and daughter into the same room and compelled the mother to disrobe and perform oral sodomy. He fondled each woman sexually and forced them to repeat sodomy. The doorbell rang and there were knocks on the door. Mercer told the mother to get dressed and “get rid of” whoever was at the door. Before she went to the door, Mercer told her that Walker, her husband, had hired him to kill her, that he had the transaction on tape, and that he would tell her more after the visitors left.

Mercer accompanied the mother to the door. Two police officers were standing away from the door. The mother told them they were not needed and returned to the house. Mercer informed the victims he would be paid $20,000 from life insurance proceeds, he had let himself in with a key, the murder was to look like an accident, he had not expected to find the daughter there, and he was not prepared to kill both. He showed them the key and the mother recognized it as Walker’s. During this time he made other references to Walker.

Mercer again told the mother he would inform her more about her husband’s involvement. Friends of the victims arrived and Mercer fled. The mother left the house, drove away, and picked Mercer up and dropped him at a bar, hoping to join him later and find out more about her husband’s involvement. When she returned to the house the police were present and she informed them that she had left Mercer at the bus station. On further inquiry, she revealed his whereabouts and he was arrested.

Testimony at trial disclosed that Walker had discussed “hit men” with three people, once mentioning his wife, that he had recently asked her whether he was the beneficiary of her life insurance policy, and that she had untruthfully told him he was. It was also revealed that his wife was planning to divorce him, he knew Mercer, had lent Mercer money and a pistol, and had Mercer’s telephone number in his possession. At the time of the crimes, Walker was working in Tallahassee, Florida, during the weék and was in Columbus only some weekends. He maintained that he had asked Mercer to retrieve clothing for him.

1. Walker contends that a directed verdict of acquittal on all counts should have been awarded because the only evidence of Walker’s guilt was through a conspiracy theory, and the State failed to prove any conspiracy. In essence, Walker’s argument is that the only evidence of a conspiracy is Mercer’s statements to the victims. Without independent evidence establishing a conspiracy beyond a reasonable doubt, the declarations of a co-conspirator are not admissible as an exception to hearsay. Chase v. State, 179 Ga. App. 71, 73 (3) (345 SE2d 149) (1986). Therefore, Walker argues, Mercer’s statements to the victims are simply hearsay, without probative value, and there is insufficient evidence to link Walker to the crime. Harden v. State, 210 Ga. App. 673, 675 (1) (436 SE2d 756) (1993).

The argument fails for several reasons. There is other evidence establishing a conspiracy. “After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” OCGA § 24-3-5. Conspiracy can be shown by circumstantial evidence. Guerra v. State, 210 Ga. App. 102, 103 (1) (435 SE2d 476) (1993).

Circumstantial evidence showing a conspiracy included Walker’s asking other persons about “hit men” and Mercer’s possession of Walker’s key. Neither defendant testified, but a videotape was played for the jury in which Walker stated he had lent Mercer $200 or $300 and a pistol, had given his key and Columbus address to Mercer so Mercer could get some clothes, and had told Mercer where his clothes were in the house. He also stated he did not know Mercer well, the clothes were everyday clothes, he had been at the house the week before, he had a cousin in the area who could have obtained the clothes, he was going to visit this cousin the day of the attack, and he planned on going to the house himself but not to retrieve clothes.

Mercer apparently arrived in Columbus by bus and took a taxi to the street where the attack occurred. He did not get off at the house and gave the driver an address that did not exist. He told the driver he was in town for a wedding. Mercer was in possession of the key, never stated to anyone he had come to Columbus for clothes, and never entered the room in which the clothes were kept.

This was a sufficient body of evidence from which a jury could find a conspiracy. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The jury was properly charged that it must find a conspiracy beyond a reasonable doubt before using the declaration of one conspirator against another.

Walker also argues that Mercer’s implicatory statements came after any conspiracy had terminated and thus are not admissible under OCGA § 24-3-5. This is not a case in which one conspirator confesses to the police, implicating another conspirator and terminating the conspiracy. See Gunter v. State, 243 Ga. 651, 660-661 (7) (256 SE2d 341) (1979). To the contrary, Mercer made his initial statement that Walker had hired him to kill his wife before he knew the police were at the door. When he became aware of that fact, he did not surrender and confess but remained concealed in the house.

There is no evidence that Mercer abandoned the conspiracy when he stated he could not kill the victims now. A conspiracy to achieve an unlawful end includes other acts incidental to that end, and continues throughout the period necessary to effect the scheme, including attempts to hide the crime and the identity of the perpetrators. Guerra, supra at 103-104 (1); Chews v. State, 187 Ga. App. 600, 603-604 (2) (371 SE2d 124) (1988). When Mercer implicated Walker, he was still engaged in burglary, remaining in the house without authority after committing felonies there. OCGA § 16-7-1. Additionally, Mercer continued to try to hide his identity and escape the consequences of his actions by fleeing the house when one victim’s flaneé began to enter. The conspiracy had not terminated at the time the statements were made.

Mercer’s statements implicating Walker were also admissible as part of the res gestae. OCGA § 24-3-3. He made them while still in the house, exerting some control over the victims, and thus during the enterprise. “ ‘ “(A)cts are pertinent as a part of the res gestae if they are done pending the hostile enterprise, and if they bear upon it, are performed whilst it is in continuous progress to its catastrophe, and are of a nature to promote or obstruct, advance or retard it, or to evince essential motive or purpose in reference to it. . . .” (Cits.)’ . . . [Cit.]” Heflin v. State, 204 Ga. App. 161, 162 (1) (418 SE2d 770) (1992).

Walker argues that there are insufficient indicia of reliability connected with the statements, but that is not the case. “ ‘Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. . . .’ [Cit.] . . . The out-of-court declaration was a part of the res gestae and therefore was a well-recognized exception to the hearsay rule.” Williams v. State, 202 Ga. App. 82, 84 (413 SE2d 256) (1991).

If, as Walker urges, the admissibility of Mercer’s declarations are analyzed under Dutton v. Evans, 400 U. S. 74 (91 SC 210, 27 LE2d 213) (1970), the declarations still bear sufficient indicia of reliability. Dutton upheld Georgia’s hearsay exception for declarations of a co-conspirator and “ ‘identified at least four factors indicative of reliability: “ ‘(1) (T)he declaration contained no assertion of a past fact, and consequently carried a warning to the jury against giving it undue weight; (2) the declarant had personal knowledge of the identity and role of participants in the crime; (3) the possibility that the declarant was relying upon faulty recollection was remote; and (4) the circumstances under which the statements were made did not provide reason to believe that the declarant had misrepresented the defendant’s involvement in the crime.’” [Cit.]’ [Cit.]” Hunter v. State, 179 Ga. App. 368, 369 (347 SE2d 2) (1986). A statement must bear at least some of these indicia. Mooney v. State, 243 Ga. 373, 390 (3) (254 SE2d 337) (1979).

In this case, all listed indicia of reliability appear except the first. Further, importantly, the total circumstances surrounding the statements indicate reliability. Mercer implicated Walker in the conspiracy without any coercion and with no apparent benefit to himself. In fact, the statement was against Mercer’s own interest. It expanded his criminal jeopardy from burglary, aggravated assault, false imprisonment, and aggravated sodomy to include conspiracy to commit murder. Even if classified as the statements of a co-conspirator, Mercer’s statements to the victims were not inadmissible hearsay and could form the basis of a finding that Walker had conspired.

2. Walker next contends it was error to deny his motion for directed verdict on the charge of burglary. A conspirator can be found guilty of all acts in furtherance of the conspiracy, even if those acts were actually performed by another conspirator. Bruce v. State, 263 Ga. 273, 274-275 (5) (430 SE2d 745) (1993). Mercer had a key but was in the house without the authority of the residents and co-owner. OCGA § 16-7-1 (a). The only evidence that Mercer had authority to enter the house was presented in the videotape. This was contradicted by the testimony of Ms. Walker. Additionally, even if he had authority to enter, it was a jury question whether he had authority to remain, and a directed verdict was not warranted. Hambrick v. State, 174 Ga. App. 444, 446-447 (1) (330 SE2d 383) (1985).

3. It is next contended that it was error to deny the motion for directed verdict on the charge of sodomy, on the theory that the acts of sodomy were not necessarily done in furtherance of the conspiracy to commit murder. Defendants are accountable for other crimes committed by co-conspirators in the course of conspiracies, such as armed robbery when the conspiracy was to kidnap, Shehee v. State, 167 Ga. App. 542, 543 (1) (307 SE2d 54) (1983); possession of burglary tools when the conspiracy was to commit burglary, Solomon v. State, 180 Ga. App. 636 (1) (350 SE2d 35) (1986); murder when the conspiracy was to commit armed robbery, Burke v. State, 234 Ga. 512, 514 (2) (216 SE2d 812) (1975); and armed robbery when the conspiracy was to commit robbery, Crawford v. State, 210 Ga. App. 36 (1) (435 SE2d 64) (1993). “ ‘Conspirators are responsible for the acts of each other in carrying out the common purpose or design, although such acts may constitute another criminal offense.’ ” Solomon, supra at 636 (1). In this case, as in Shehee, supra, the acts of sodomy were not an automatic outgrowth of the crime plotted, such as burglary was under these facts, but it nevertheless grew out of the acts committed while one conspirator was engaged in furthering the criminal enterprise.

4. Walker contends it was error to deny his motion for directed verdict on the charge of attempt to murder, arguing that he could not be convicted of both conspiracy and attempt. He was sentenced for both crimes. The State argues that Walker can be convicted of both: because the murder was not completed, there is the crime plotted, murder, and the crime actually committed, attempted murder.

The same facts were used to prove Walker’s guilt of both the conspiracy and the attempt to murder. Under either the “actual evidence test” urged by Walker, or the “required evidence test” approved in State v. Burgess, 263 Ga. 143, 145 (1) (429 SE2d 252) (1993), the crimes factually merge. The jury found that Walker hired Mercer to kill his wife. That was the fact used to prove his guilt of both conspiracy and attempted murder.

Additionally, the crimes in this case merge as a matter of law. “The state can charge conspiracy, prove the completion of the object or of a substantive crime which is short of completion, such as attempt, but convict only of conspiracy. . . . [Conspiracy merges only where there is conviction of a substantive offense which is a criminal aspect of the conspiracy; that offense may not even be the ultimate object of the conspiracy but may be a preliminary crime, such as . . . the substantive crime of attempt.” (Emphasis supplied.) Moser v. State, 178 Ga. App. 526, 532-533 (2) (343 SE2d 703) (1986) (Beasley, J., concurring specially).

In either event, the conviction of criminal attempt to murder and the corresponding sentence must be vacated. OCGA § 16-1-7 (a) (1).

5. The admission of similar transactions is the next error enumerated. These were used to show that Walker had previously been interested in procuring a “hit man.”

He first asserts that the notice failed to give the date and county of the transaction’s occurrence, as required by USCR 31.3 (B). The notice stated that two transactions occurred in “1992” and one occurred “between 1989 and 1992 in the State of Florida, County unknown.” He claims this imprecision precluded his procurement of a certified copy of one witness’ conviction for impeachment purposes. The witness stated she had a conviction for possession of a controlled substance so any deficiency was harmless.

Walker also argues that the transactions were not sufficiently similar. Admission of separate transactions is proper where there is “ ‘sufficient similarity or connection between the independent crime (or transaction) and the offense charged.’ ” Guyton v. State, 206 Ga. App. 145, 146 (1) (424 SE2d 87) (1992). Here the crime charged was conspiracy to commit murder, by hiring another to perform the actual deed, while Walker remained in Tallahassee. The similar transactions were Walker’s inquiries and statements about procuring someone else to perform the deed, and were made while he was working in Florida. The fact that these instances were not between Walker and Mercer does not make them inadmissible; they need not be identical to the crime proved. Id. The similarities between asking about hiring a killer and actually hiring one are sufficient to make the transactions admissible.

6. Error is enumerated in permitting Curtis Lambert to testify that Mercer had stated that Walker would give him a good job if Mercer would burn down a house in Georgia. As ruled previously, there was sufficient evidence to allow the jury to conclude that Mercer and Walker had formed a conspiracy. Lambert’s testimony was admissible under OCGA § 24-3-5.

7. Allowing in evidence Mercer’s redacted confession is also challenged, on the ground that two passages in the confession, “I was told she moved in with her boyfriend” and “I got the key three or four days ago” clearly implicated Walker. He argues that, even with the jury instruction that the confession could be used only against Mercer, his right to confrontation under Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968), was violated.

Decided May 17, 1994

Reconsideration denied June 1, 1994

Michael D. Reynolds, for appellant.

Douglas C. Pullen, District Attorney, J. Gray Conger, Jerry G. Croley, Jr., Assistant District Attorneys, for appellee.

“[E]vidence of the confession of a co-defendant implicating a defendant cannot be admitted against that defendant at a joint trial where the co-defendant does not take the stand and is not available for cross examination.” Reddish v. State, 238 Ga. 136, 138 (1) (231 SE2d 737) (1977) (citing Bruton, supra). The implication of another defendant must be direct. It is not a Bruton violation if the redacted confession identifies the defendant only through the jury’s making connections with other evidence and drawing inferences. Bailey v. State, 203 Ga. App. 133, 137 (3) (416 SE2d 151) (1992). “‘[T]he statements standing alone must clearly inculpate the defendant. (Cits.)’ (Emphasis supplied.) [Cit.]” Owens v. State, 193 Ga. App. 661, 662 (3) (388 SE2d 712) (1989). As in Owens, the co-defendant’s statements were not inculpatory of appellant.

Additionally, error, if any, was harmless. Other witnesses testified that Mercer stated he had gotten the key from Walker and had been told by Walker that the stepdaughter was not expected to be in the house. See McDonald v. State, 210 Ga. App. 689, 691 (2) (436 SE2d 811) (1993).

8. The final enumeration is that Walker’s requested charge on wholly circumstantial evidence should have been given. Written requests to charge are to be submitted “at the commencement of trial,” although “additional requests may be submitted to cover unanticipated points which arise thereafter.” USCR 10.3. The charge was submitted on the final day of trial. There is no suggestion that the use of circumstantial evidence was unanticipated. The court’s refusal to give the requested charge was not error. Webb v. State, 184 Ga. App. 89, 90 (2) (360 SE2d 643) (1987).

Moreover, it was not properly adjusted to the evidence, for it included references to “bare suspicion” and “the case for the State resting] entirely upon circumstantial evidence.” The law requires that “[a] request to charge itself must be correct, legal, apt, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” Smith v. State, 209 Ga. App. 540, 544 (5) (433 SE2d 694) (1993).

Judgment affirmed in part and reversed in part, with direction.

Andrews and Johnson, JJ., concur.


source: Caselaw Access Project

author: Beasley, Presiding Judge.

license: Public Domain

text:
    A94A0808.
    CHAMBERS v. THE STATE.
    (444 SE2d 820)
   Beasley, Presiding Judge.

Chambers appeals his convictions for armed robbery, OCGA § 16-8-41 (a); possession of a firearm during the commission of a felony, OCGA § 16-11-106 (b); driving without a license, OCGA § 40-5-20; and possession of a firearm by a convicted felon, OCGA § 16-11-131. All stem from a 1989 robbery of a store’s employees at gunpoint. The case has an extensive procedural history which is necessary to understand the errors claimed.

Chambers was originally indicted for kidnapping, possession of a firearm during commission of a felony, providing a firearm to a person under twenty-one, driving without a license, possession of a firearm by a convicted felon, and two counts of armed robbery. On August 22, 1989, the trial court granted Chambers’ pre-trial motion to suppress the firearms and the stolen cash. The State appealed, and the suppression was reversed. State v. Chambers, 194 Ga. App. 609 (391 SE2d 657) (1990). Chambers moved for reconsideration, which was denied on February 22, 1990.

He filed a notice of intention to apply to the Supreme Court for a writ of certiorari on March 2. Prior to this court issuing the remittitur, the trial court commenced the trial of Chambers and two co-defendants on March 5. It resulted, on March 7, in Chambers’ acquittal on the kidnapping charge, one of the armed robbery charges, and the charge of providing a firearm to a person under twenty-one, but verdicts of guilty on the remaining charges. Sentences were imposed on March 20.

This court issued its remittitur on that day and it was received and filed in the trial court on March 22. Chambers moved for a new trial, contending that the trial court lacked jurisdiction to try him before the remittitur issued. The motion was denied and Chambers appealed, unsuccessfully, to this court. Chambers v. State, 201 Ga. App. 245 (410 SE2d 771) (1991). The Supreme Court granted a writ of certiorari and determined that the trial court did not have jurisdiction to take any action in the case prior to receiving the remittitur. The Court expressly stated that double jeopardy would not prevent a retrial because Chambers’ March 5 trial was a nullity. Chambers v. State, 262 Ga. 200 (415 SE2d 643) (1992).

This court’s judgment was vacated, the judgment of the Supreme Court was made the judgment of this court, and the judgment of the trial court was reversed. Chambers v. State, 204 Ga. App. 396 (420 SE2d 393) (1992). The remittitur was filed in the trial court on or about June 18, 1992. On March 1, 1993, Chambers filed in the trial court a “Motion for Trial or, in the Alternative, for Dismissal” to assert his federal constitutional right to a speedy trial. Retrial commenced on June 21, presided over by a different judge, and Chambers was convicted on June 24.

1. The first enumeration is that the trial court erred in failing to grant the “Motion for Trial, or in the Alternative, for Dismissal.” Relying on State v. King, 137 Ga. App. 26 (222 SE2d 859) (1975), which cites Treadwell v. State, 233 Ga. 468, 469 (211 SE2d 760) (1975), Chambers argues the factors set forth in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). He does not invoke OCGA § 17-7-170 or a state constitutional ground.

The four factors the court must weigh “in balancing the conduct of the prosecution and the defendant on the issue of the denial of the [federal] constitutional right to a speedy trial . . . are: (1) length of delay, (2) . . . reason for . . . delay, (3) . . . defendant’s assertion of his right, and (4) prejudice to . . . defendant.” Treadwell, supra at 469.

(a) Length of delay. Unless the delay is “presumptively prejudicial” the speedy trial claim need not be analyzed under the remaining Barker factors. Barker, supra at 530. See Redd v. State, 261 Ga. 300, 302 (404 SE2d 264) (1991). “If the delay passes this threshold test of ‘presumptive prejudice,’ then the Barker inquiry is triggered. The delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis, with ‘the presumption that pretrial delay has prejudiced the accused intensif(ying) over time.’ [Cits.] However, the presumptive prejudice arising from delay ‘cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria.’ [Cit.] Instead, ‘it is part of the mix of relevant facts, and its importance increases with the length of delay.’ [Cit.]” Boseman v. State, 263 Ga. 730, 732 (1) (a) (438 SE2d 626) (1994).

Here, the delay is not measured from the time of indictment or from the initial prosecution because the defendant’s own actions in seeking multiple reviews prolonged resolution while at the same time affording him another opportunity for trial. The span must be computed from the most recent remittitur to the trial court. The retrial occurred three days short of one year from the date the trial court regained jurisdiction in the matter. As a delay approaches one year, in general it is presumptively prejudicial. See Boseman, supra at 732 (1) (a). The remaining Barker factors must be considered.

(b) Reason for delay. The record discloses no reason, but there is no evidence that the State deliberately attempted to delay the retrial in order to hamper the defense. See Boseman, supra at 732 (1) (b).

(c) Defendant’s assertion of his right. Chambers never asserted his statutory right, see OCGA § 17-7-170, or his state constitutional right. 1983 Ga. Const., Art. I, Sec. I, Par. XI. He first asserted his federal constitutional right to a speedy trial on retrial by motion on March 1 and was tried less than three months later. The delay in demanding a speedy trial weighs against Chambers. See Boseman, supra at 733 (1) (c).

(d) Prejudice to defendant. “Prejudice should be assessed in the light of the interests of the defendant which the right to speedy trial was designed to protect. Three such interests identified by the court in Barker are: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Treadwell, supra at 470.

Apparently Chambers has been incarcerated since his arrest in April 1989. Although this is an oppressive period, all but the time from the last remittitur is explained by the first trial and appellate activity. Assuming natural anxiety and concern, there is no other evidence of anxiety or concern due to his lengthy incarceration or of any specific prejudice from the delay. See Boseman, supra at 733 (1) (d).

Chambers has not been deprived of his federal constitutional right to a speedy trial.

2. Error is enumerated in allowing certain transcript testimony to be read into evidence from Chambers’ prior trial. The ground is that the issues in the retrial were not identical.

The testimony was that of co-defendant Carroll, who testified as a State’s witness at the original trial and who was deceased by the time of the retrial. Chambers contends that application of OCGA § 24-3-10 impermissibly placed his character in issue, because Carroll’s entire transcript testimony would be introduced even though he (Chambers) had been acquitted of some of the charges in the first trial.

In applying OCGA § 24-3-10, the first question is whether the party against whom the former testimony is offered had adequate opportunity for cross-examination. See Barnes v. State, 256 Ga. 370, 371 (2) (b) (349 SE2d 387) (1986); see also Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874, 877 (2) (285 SE2d 566) (1981). Chambers does not contest the adequacy of the cross-examination opportunity.

Second, there is little question that the issues on retrial were substantially the same, which is what the statute requires.

Third, “ ‘ “[t]he state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. (Cit.) This is true even if the defendant’s character is incidentally placed in issue.” (Cits.)’ [Cit.]” Carroll v. State, 202 Ga. App. 544, 547 (2) (415 SE2d 37) (1992).

3. Chambers enumerates as error the admission of testimony, both by transcript and live witnesses, concerning crimes for which he had been acquitted, thereby impermissibly placing his character in issue. The contention is without merit. See Division 2.

4. Error is also claimed in the trial court’s requiring Chambers to proceed to trial with a court-appointed attorney, “after [he] made timely statement tantamount to request to proceed pro se.”

“Both the federal and state constitutions guarantee a criminal defendant the right to self-representation. See Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975); 1983 Ga. Const., Art. I, Sec. I, Par. XII. An unequivocal assertion of the right to represent oneself, made prior to trial, should be followed by a hearing to ensure that the defendant knowingly and intelligently waives the right to counsel and understands the disadvantages of self-representation. [Cits.]” Thaxton v. State, 260 Ga. 141, 142 (2) (390 SE2d 841) (1990).

The record does not reveal any request that Chambers proceed to trial pro se, but rather only that he had complaints about his appointed counsel.

Prior to voir dire on the retrial, Chambers and court-appointed counsel had a bench conference with the court in which Chambers attempted to submit certain “motions” which counsel refused to do on the basis that they were groundless. During the colloquy about counsel’s unwillingness to file the motions thought to be frivolous, Chambers stated that counsel was representing him poorly. The court said it would take up the motions during the course of trial, and Chambers retorted that he would “rather not let [the attorney] represent me at trial.” The court inquired if Chambers had another attorney to represent him and Chambers responded that he did not have one at that time but would rather not stand trial with present counsel. The court then told Chambers he would have to stand trial with present counsel unless he had another attorney to represent him. Chambers responded that that was “okay” and he would leave his “motions” with the court.

The colloquy, in its entirety, confirms the trial court’s apparent interpretation of Chambers’ request, that is, not that he be allowed to represent himself but that he be represented by different counsel. “There is no Sixth Amendment guarantee of a ‘ “meaningful relationship” between an accused and his counsel.’ [Cit.] ‘(A) criminal defendant will not be permitted to use the discharge of counsel and employment or appointment of another as a dilatory tactic in postponing or avoiding trial of the issue. (Cit.) (While) all criminal defendants have a constitutional right to be defended by counsel of their own choosing whenever such counsel may reasonably be secured(,) ... an indigent criminal defendant does not have an absolute right to discharge one court-appointed counsel and have another substituted in his place. A request of this sort addresses itself to the sound discretion of the trial court.’ (Indention omitted.) [Cit.]” Turner v. State, 199 Ga. App. 836 (1) (406 SE2d 512) (1991).

5. Lastly, Chambers contends that the trial court erred by sentencing him to a more severe sentence than he was previously given on the same charges on the prior trial, where the trial court failed to affirmatively state in the record what actions subsequent to the first trial were justification for the harsher sentence.

“ ‘There is no absolute constitutional bar to imposing a more severe sentence upon resentencing, but vindictiveness must not be the motivating force behind the increased sentence. North Carolina v. Pearce, 395 U. S. 711 (89 SC 2072, 23 LE2d 656) ((1968)).’ [Cit.] ‘In order to assure the absence of such a motivation . . . whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.’ North Carolina v. Pearce, supra at 726.” Pressley v. State, 158 Ga. App. 638, 639 (3) (281 SE2d 364) (1981).

A different judge conducted Chambers’ retrial and sentencing. At the time the retrial judge pronounced punishment, he apparently was unaware of the sentences imposed at the first trial. He was informed of them shortly thereafter in the proceeding concerning whether he had given Chambers harsher treatment. Nonetheless, the judge failed to state any factual basis or reason for the increased punishment.

The case is remanded for reconsideration of the sentences in conformity with the due process principle established in North Carolina v. Pearce, supra. See Crudup v. State, 191 Ga. App. 551 (382 SE2d 391) (1989). Texas v. McCullough, 475 U. S. 134 (106 SC 976, 89 LE2d 104) (1986), relied on by the State, is inapposite. Although McCullough, too, involved different sentencers (the jury and then the court on retrial), McCullough’s new trial came about because the trial judge herself concluded that it was required, and the judge provided an on-the-record logical, nonvindictive reason for the longer sentence.

Judgments affirmed in part and reversed in part, with direction.

Andrews and Johnson, JJ., concur.

Decided May 17, 1994

Reconsideration denied June 1, 1994

Adams & Brooks, John B. Adams, J. Kelly Brooks, for appellant.

H. Donnie Dixon, Jr., District Attorney, Alexander J. Markowich, George E. Barnhill, Lucy J. Bell, Assistant District Attorneys, for appellee.


author: Smith, Judge.

text:
    A94A0490.
    MILLWOOD v. THE STATE.
    (447 SE2d 343)
    Decided June 1, 1994.

      Phillip N. Lavender, for appellant.

      Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Allison L.

      Thatcher, Assistant Solicitors, for appellee.
   Smith, Judge.

Dewey D. Millwood appeals from the judgment and sentence entered on his plea of nolo contendere to a charge of driving under the influence. He contends the trial court is limited by OCGA §§ 40-6-391 (c) (1) and 40-6-391.1 to consideration of only those DUI convictions occurring within the past five years. Millwood had two prior DUI convictions, neither within the past five years.

The five-year limitation provided in OCGA §§ 40-6-391 and 40-6-391.1 is applicable by its terms to enhanced sentencing for multiple DUI convictions. See State v. Bangley, 209 Ga. App. 208 (433 SE2d 372) (1993). Millwood was not given enhanced sentencing: the sentence here was within the range permitted by OCGA.§ 40-6-391 (c) (1) for the first conviction within the previous five years. Moreover, Millwood’s driving record contained three other traffic violations within five years. In sentencing, the trial court may consider any lawful evidence which tends to show the defendant’s motive, lack of remorse, moral character or predisposition to commit other crimes. Dotson v. State, 179 Ga. App. 233, 234 (3) (345 SE2d 871) (1986). The trial court properly reviewed Millwood’s entire driving record before accepting his plea of nolo contendere. OCGA § 40-6-391.1 (b) (2).

Millwood argues, without citation to authority, that his sentence was disproportionately severe for a first DUI offense. However, as the trial court correctly noted, this is not Millwood’s first DUI offense, but his third. A sentence within the statutory limits is authorized. Christian v. State, 190 Ga. App. 667, 670 (4) (379 SE2d 807) (1989).

Judgment affirmed.

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


text:
    A94A0871.
    JACKSON v. THE STATE.
    (444 SE2d 854)
   Smith, Judge.

Michael V. Jackson was convicted by a jury of three counts of child molestation and sentenced as a recidivist. OCGA §§ 16-6-4 (a), (b); 17-10-7 (b). His motion for new trial was denied.

Construed to support the verdict, the evidence presented at trial showed that the victim was seven years old when Jackson married her mother. She testified that she sometimes slept in her mother’s bed because she got “scared.” When she did so, Jackson would molest her by touching her and placing his finger in her vagina. She was afraid to tell him to stop and “just lay still.” She wrote her grandmother a note telling her about the molestation. She testified that when Jackson was confronted with the accusation, he denied it and “he said it was a dream[,] but it wasn’t.” Jackson left the home after the accusation, but the victim “felt sorry” for her mother and agreed that Jackson could return. He apologized to her for what he had done. She hoped he had changed and would not touch her again, but he continued to molest her. The abuse took place over a period of approximately four years. Eventually, she told other relatives, who told her father, and he informed the police. The victim’s half-brother testified she told him of the abuse. ■

Kay Fulford, special agent principal with the GBI and a former DFCS caseworker with 25 years experience and training in cases involving sexual abuse of children, testified that she interviewed the victim at the request of the Ben Hill County Sheriff’s Office. The victim was 12 years old at the time. Fulford’s testimony regarding the information the victim had given her was completely consistent with the victim’s testimony.

Jackson testified in his own defense and denied he had molested his stepdaughter. He testified that the victim resented him because he disciplined her and that there were times when she did not tell the truth.

Jackson’s first four enumerations raise the general grounds. He argues the evidence was insufficient to support his conviction because the State did not establish venue and the testimony of Fulford was inadmissible hearsay. We do not agree.

The victim alleged that the molestation occurred in the trailer home she and her mother shared with Jackson. Fulford testified that although the mailing address for the trailer was in Rochelle, Georgia, the residence was physically located in Ben Hill County. Venue was therefore established in Ben Hill County.

Decided June 1, 1994.

Child molestation. Ben Hill Superior Court. Before Judge Forrester.

David E. Morgan III, for appellant.

John C. Pridgen, District Attorney, Denise D. Fachini, Assistant District Attorney, for appellee.

Contrary to Jackson’s assertion, Fulford’s testimony was clearly admissible under the Child Hearsay Statute, OCGA § 24-3-16. The evidence in this case was conflicting, and Jackson is correct in concluding that the crucial issue was the credibility of the victim. The jury, which received careful instructions regarding the credibility of witnesses, decided this issue against Jackson. On appeal this court does not weigh the evidence or determine the credibility of witnesses. Sheats v. State, 210 Ga. App. 622, 623 (2) (436 SE2d 796) (1993). The evidence was sufficient to authorize the jury to convict Jackson of the charged crimes under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Ahmed Al-Beti v. State, 210 Ga. App. 312 (1) (436 SE2d 50) (1993).

In his brief, Jackson fails to support his remaining enumeration of error with argument or citation of authority. It is therefore deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). Having abandoned this enumeration in his initial brief, his attempt to supply argument and authority in a reply brief is unavailing. Dimmick v. Pullen, 120 Ga. App. 743, 744-745 (2) (172 SE2d 196) (1969).

Judgment affirmed.

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


author: Pope, Chief Judge.

text:
    A94A0518.
    ABDUL-MAJEED v. EMORY UNIVERSITY HOSPITAL.
    (445 SE2d 270)
   Pope, Chief Judge.

In this wrongful death action against a doctor and a hospital, plaintiff appeals the trial court’s grant of summary judgment for the hospital.

After an automobile accident, plaintiff’s decedent was rushed to South Fulton Hospital. South Fulton Hospital did not have room for plaintiff’s decedent on its trauma ward, however, so he was taken to defendant Emory University Hospital (“Emory” or “the hospital”). There he came under the care of defendant Dr. Richard Riggins, an orthopedic surgeon who is not a party to this appeal. Several days after surgery, plaintiff’s decedent died as the result of a blood clot in his heart. Plaintiff brought suit against Riggins and Emory and attached an affidavit from another orthopedic surgeon who opined that Dr. Riggins and Emory should have diagnosed the blood clots in the decedent’s left leg and utilized various devices and techniques to prevent them from moving to his heart, and that they deviated from reasonable standards of medical care in failing to do so. Emory moved for summary judgment on the grounds that: (1) the hospital was not responsible for any alleged negligence on the part of Dr. Riggins because Dr. Riggins was an independent contractor rather than an employee, and (2) there was no evidence of any independent negligence on the part of the hospital or any of its employees. The trial court granted Emory’s motion, and plaintiff appealed.

1. On appeal, plaintiff contends that even if Dr. Riggins was not Emory’s actual employee, summary judgment was inappropriate because the hospital may be liable under the doctrine of apparent or ostensible authority. See Richmond County Hosp. Auth. v. Brown, 257 Ga. 507 (361 SE2d 164) (1987). We agree. In Richmond County Hosp. Auth., the Supreme Court held that a hospital may be liable for a doctor’s negligence, even though the doctor is an independent contractor, if the hospital represents or holds out the doctor as its agent and the plaintiff justifiably relies on that representation. Id.; see also Whitaker v. Zirkle, 188 Ga. App. 706, 709 (2) (374 SE2d 106) (1988). “Quite clearly, a hospital patient whose treatment is under the control and supervision of a privately retained physician is in a categorically different relationship with the hospital than is a patient whose attending physician is furnished to him by the hospital itself. ... By furnishing the attending physician, the hospital is in effect holding him out as its own and calling upon the patient to accept his services based on its own reputation rather than the physician’s.” Brown v. Coastal Emergency Svcs., 181 Ga. App. 893, 897-898 (354 SE2d 632), aff’d sub nom. Richmond County Hosp. Auth. v. Brown, supra. Although the doctrine of apparent or ostensible authority first developed in the context of emergency room doctors, we have since held that it applies not just to emergency room physicians, but to all doctors who “ ‘share the common characteristic of being supplied through the hospital rather than being selected by the patient.’ ” Doctors Hosp. of Augusta v. Bonner, 195 Ga. App. 152, 163 (6b) (392 SE2d 897) (1990).

In this case, it is undisputed that plaintiff’s decedent did not have a doctor when he arrived at Emory and that Dr. Riggins was supplied by the hospital. Plaintiff also stated in her affidavit that Emory employees told her “one of our doctors” would be assigned to her husband’s case. Contrary to Emory’s contention, plaintiff’s testimony regarding this statement by Emory employees is not hearsay because it is offered to show that the statement was made, not to show that the content of the statement was true. See Hurston v. State, 194 Ga. App. 226 (390 SE2d 119) (1990). And plaintiff’s inability to name the employees goes to the weight of her testimony rather than its admissibility. In any case, we conclude, based on the language from Brown v. Coastal Emergency Sues, quoted above, that even without plaintiff’s testimony regarding the employees’ statement, the fact that the hospital supplied the doctor without explicitly informing the patient that the doctor was not its employee would be sufficient to support a finding that the hospital “held out” the doctor as its agent. Compare Holmes v. Univ. Health Svc., 205 Ga. App. 602 (423 SE2d 281) (1992) (there is no holding out of doctor as agent where hospital conspicuously posts large signs in emergency room notifying patients that doctors are not hospital employees and patient signs statement acknowledging that doctors are not hospital employees or agents).

With respect to reliance, Emory argues that plaintiff’s statement in her affidavit that she chose to take her husband to Emory based on its good reputation contradicts her prior deposition testimony that she chose Emory because of her friend’s negative experience at Georgia Baptist. As no explanation for the contradiction was offered, Emory asserts the affidavit testimony must be ignored. See Prohpecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986); Bryant v. Crider, 209 Ga. App. 623, 625 (3) (434 SE2d 161) (1993). While we agree that plaintiff’s testimony regarding her choice of Emory was contradictory without explanation and must be construed against her, we do not agree with Emory’s position that this disposes of plaintiff’s ability to show reliance. The relevant question here is not whether plaintiff relied on the hospital’s reputation in choosing between Georgia Baptist and Emory Hospitals, but whether plaintiff relied on the hospital’s representation that Dr. Riggins was its agent in accepting that doctor’s services. Plaintiff stated in her affidavit that she knew no physicians at Emory but “felt that the hospital would provide competent personnel to attend to her husband,” and this statement is not contradicted in her earlier deposition testimony. Indeed, it is fully consistent with plaintiff’s prior statements that she did not have a family doctor and did not know any doctors affiliated with Emory; that the two nurses who met the ambulance and an employee in the admissions office assured her the hospital would provide a doctor; that Dr. Riggins became involved when he was assigned to her husband’s case by the hospital the following morning; that plaintiff could have called some of her husband’s college classmates who could have referred her to another doctor but she did not; that she called Dr. Riggins when problems with her husband’s treatment arose; and that she thought she could trust Emory and Dr. Riggins. From plaintiff’s statement in her affidavit and the circumstances related in her deposition, a jury could infer that plaintiff relied on the hospital’s representation that Dr. Riggins was its agent. See Doctors Hosp. of Augusta v. Bonner, 195 Ga. App. at 164. Accordingly, the hospital was not entitled to summary judgment on the issue of liability pursuant to the doctrine of apparent or ostensible agency.

Decided May 11, 1994

Reconsideration denied June 2, 1994.

S. Ralph Martin, Jr., M. Gino Brogdon, for appellant.

Long, Weinberg, Ansley & Wheeler, Stephen H. Sparwath, J. M. Hudgins IV, Allen & Peters, Bradley C. Reeves, for appellee.

2. However, we agree with the trial court that there is no evidence of any independent negligence on the part of any actual employees of the hospital. Thus, the trial court did not err in granting summary judgment with respect to this basis of liability.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Smith, J., concur.

       For some reason not apparent from the record, plaintiff was given only two choices of hospitals, Emory and Georgia Baptist.


author: Cooper, Judge.

text:
    A94A0293.
    SKIVER v. THE STATE.
    (444 SE2d 836)
   Cooper, Judge.

Defendant was indicted for the rape and aggravated sodomy of his natural daughter and convicted by a jury of both offenses. He appeals his convictions and the sentences entered thereon, raising three enumerations of error.

1. In his first enumeration of error, defendant argues the trial court erred by failing to follow the mandate of Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) before allowing the State to introduce evidence of similar transactions at trial. Specifically, defendant argues that evidence of similar transactions and prior difficulties involving the defendant and the victim should not have been admitted at trial because (1) a proper hearing was not held in conformance with the requirements of Williams v. State, supra; and (2) the trial court failed to make the requisite findings required by Uniform Superior Court Rule 31.3 (B) and the Williams case.

The record reveals that the State filed a timely notice of similar transactions and prior difficulties prior to trial listing numerous acts of sexual intercourse, oral sodomy, sexual battery, child molestation and aggravated child molestation by defendant against the victim that took place over the course of approximately ten years. The notice specifically stated that the State was filing the notice “only in abundance of caution . . . [because] the acts of sexual abuse upon the victim by the Defendant were continuous and extensive over a number of years.” Before trial commenced, the trial court inquired about the similar transaction evidence. In response, defendant’s attorney stated: “Being aware of what Georgia law is I would simply object and hope the law may change one of these days, but I think the state of the law is that what he is talking about is admissible.” Even though defense counsel conceded the admissibility of the evidence, the prosecutor nevertheless stated for the record his intent to introduce evidence of prior difficulties between defendant and the victim and proceeded to make the requisite showings required by Rule 31.3 (B) and Williams. Following this showing, the trial court simply stated: “Okay.” Defense counsel failed to renew his previous objection or raise any new objections following the trial court’s ruling.

Contrary to defendant’s assertion, the record clearly reveals that a hearing was held on the similar transaction and prior difficulties evidence in accordance with Uniform Superior Court Rule 31.3 (B) and the Williams case. The record also shows that although defense counsel may have initially made a general objection to the State’s intention to introduce the similar transaction and prior difficulties evidence, immediately thereafter defense counsel explicitly conceded the admissibility of such evidence. Moreover, the record also reveals that following the trial court’s ruling allowing this evidence to be used in trial, defendant failed to object to the evidence on the grounds raised on appeal.

Where a Rule 31.3 (B) hearing has been held, as in the present case, “the failure of a defendant to object to the introduction of similar transaction evidence [or prior difficulties evidence] on the basis that the State has not made a sufficient showing and/or the trial court has not made the requisite findings as required by Rule 31.3 (B) and our Supreme Court’s decision in Williams precludes appellate consideration of those issues. [Cit.]” Riddle v. State, 208 Ga. App. 8, 10 (1b) (430 SE2d 153) (1993); Cavender v. State, 208 Ga. App. 61 (2) (429 SE2d 711) (1993).

Having determined that defendant’s first enumeration of error has not been properly preserved for appellate review, we need not address whether defendant’s additional conduct with the victim was “immediately related in time and place to the charge being tried, as part of a single, continuous transaction” as contemplated by Uniform Superior Court Rule 31.3 (E).

2. In his second enumeration of error, defendant argues the trial court erred by refusing to allow the victim’s maternal grandmother to testify about the victim’s reputation for veracity in the family. Pretermitting the issue of whether a family can be considered a community for the purposes of obtaining reputation for veracity testimony under OCGA § 24-9-84, we note that the transcript reveals that the only question asked of the victim’s grandmother was: “Are you familiar with [the victim’s] reputation in the family right now?” After the trial court sustained the State’s objection to this question on insufficient foundation grounds, defense counsel immediately withdrew the question without excepting or objecting to the trial court’s ruling. Accordingly, this enumeration of error has not been properly preserved by proper objection at trial and will not be considered on appeal. See Elrod v. State, 208 Ga. App. 787 (1) (432 SE2d 808) (1993).

Decided May 24, 1994

Reconsideration denied June 3, 1994.

Summer & Summer, Daniel A. Summer, for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant Dis trict Attorney, for appellee.

3. In his third enumeration of error, defendant argues the trial court erred by allowing the prosecutor to cross-examine defendant’s wife (also the victim’s mother) about her own alleged sexual abuse as a child. During direct examination defendant’s wife testified that she never observed defendant molest the victim, that the victim never complained to her, and that the victim never asked her for protection. On cross-examination, the prosecutor asked the witness: “Ms. Skiver, you did not protect your daughter . . . because you were sexually abused yourself?” Defense counsel immediately objected to this question on the grounds that there was no good faith foundation for this evidence, nor was there “any evidence of this whatsoever.” The prosecutor then stated for the record that his good faith basis was his contention that when the victim would ask her mother for help, Ms. Skiver would reply: “I was sexually abused, too, you just have to put up with it.”

When cross-examining a character witness for the defendant, “the prosecutor must be able to show that the questions posed to the defendant’s character witness were asked in good faith and based on reliable information that can be supported by admissible evidence.” (Punctuation omitted.) Chisholm v. State, 199 Ga. App. 746 (1) (406 SE2d 112) (1991). Thus, there is no requirement that the evidence available be actually admitted into evidence. Our review of the transcript in this case reveals that the trial court correctly determined that the State had shown a good faith basis for the question asked of this witness, and this testimony could have been introduced at trial. Accordingly, this enumeration is without merit.

Judgment affirmed.

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


text:
    A94A0695.
    ATKINSON v. HOLT.
    (444 SE2d 838)
   Cooper, Judge.

On February 24, 1992, plaintiff filed a “Complaint for Damages” against defendant for injuries sustained in an automobile collision on June 11, 1990. That complaint was identified by the Ware County Superior Court Clerk’s Office as Civil Action No. 92V-154. On March 31, 1993, plaintiff voluntarily dismissed Civil Action No. 92V-154 without prejudice. On September 15, 1993, plaintiff filed another “Complaint for Damages” against defendant, purportedly pursuant to OCGA § 9-11-41. That complaint was also filed under Civil Action File No. 92V-154 and contained the following language: “The original dismissed Complaint for Damages in this case, a copy of which is attached and made Exhibit A, is herewith reasserted, and the Clerk is asked to recommence the action in accordance with OCGA § 9-11-41, place same on the docket and reinstate same as originally positioned.” Plaintiff did not personally serve the second complaint but instead mailed a copy of the complaint to defendant’s attorney of record and attached a certificate of service. Defendant answered the complaint, raising among his defenses, insufficiency of service and the expiration of the statute of limitation. In the same pleading, defendant moved to dismiss the action for failure to comply with OCGA § 9-11-41, and the trial court granted the motion. Plaintiff appeals from that order.

OCGA § 9-11-41 (a) allows a plaintiff to voluntarily dismiss an action without order of the court by filing a written notice of dismissal at any time before plaintiff rests his case. When a case filed within the applicable statute of limitation is voluntarily dismissed by the plaintiff, the case may be recommenced either within the applicable limitation period or within six months after the dismissal, whichever is later. OCGA § 9-2-61 (a). “[A] lawsuit renewed under OCGA § 9-2-61 is an action de novo, and accordingly, all procedural prerequisites such as filing of a new complaint and perfection of service must be met anew.” (Citation omitted.) Bell v. Figueredo, 190 Ga. App. 163, 164 (1) (378 SE2d 475) (1989), rev’d on other grounds in 259 Ga. 321 (381 SE2d 29) (1989). Plaintiff filed a new complaint utilizing the same civil action number. However, plaintiff did not perfect service by having the complaint personally served on defendant as required under OCGA § 9-11-4 (d). Since plaintiff failed to comply with the procedural prerequisites required for a renewal action, the trial court properly granted defendant’s motion to dismiss.

Judgment affirmed.

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

Decided May 24, 1994

Reconsideration denied June 3, 1994

M. Dean Hall, for appellant.

Dillard, Bower & East, Bryant H. Bower, Jr., Robert W. Lamb, for appellee.


text:
    A93A1349.
    LEISURE LINES, INC. v. DeKALB COUNTY.
    (447 SE2d 343)
   Beasley, Presiding Judge.

Leisure Lines, Inc. (LLI), a distributor and installer of playground equipment, filed suit against DeKalb County for compensation due it as a subcontractor on a county park improvement project. The issue was the county’s compliance with the statutory scheme imposing a duty on it to require a payment bond on a public works contract. See OCGA §§ 36-82-101; 36-82-102; 13-10-1.

The trial court dismissed the suit for failure to state a claim after concluding that the county was in full compliance with the statutory requirements for bonding. We reversed the dismissal, relying upon this court’s holding in J & A Pipeline Co. v. DeKalb County, 208 Ga. App. 123, 124 (1) (430 SE2d 13) (1993). Leisure Lines, Inc. v. DeKalb County, 210 Ga. App. XXXII (1993).

This case is again before this court pursuant to the Supreme Court’s remand, after the grant of certiorari, for reconsideration in light of the Supreme Court’s reversal of this court’s opinion in J & A Pipeline. DeKalb County v. J & A Pipeline Co., 263 Ga. 645 (437 SE2d 327) (1993). The Supreme Court held that if “the county takes a payment bond from the general contractor or an affidavit from the surety which does, on its face, comport with the statutory requirements [as to ‘manner’ and ‘form’], the subcontractors’ and material-men’s direct action remedy will be defeated notwithstanding the subsequent inefficacy of the bond or the subsequent discovery of the falsity of the affidavit.” Id. at 649 (2).

In this case, as in J & A Pipeline, the bond was taken “in the manner and form required” by OCGA § 36-82-102. Id. at 649 (2). Therefore, subcontractor LLI’s direct action against the county was defeated. No question of OCGA § 13-10-1 (f) applies in this case because the statute “was not in effect at the times relevant.” Id. at 650 (3).

Accordingly, the prior judgment of this court is vacated, and pursuant to the judgment of the Supreme Court, expressed in its holdings in J & A Pipeline and applied to this case, the judgment of the trial court is affirmed.

Decided June 3, 1994.

Steven H. Ballard, for appellant.

Albert S. Johnson, Patrick F. Henry, Jr., Robert H. Walling, Bernard Knight, for appellee.

Judgment affirmed.

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


author: McMurray, Presiding Judge. Smith, Judge,

text:
    A94A0012.
    WHITE v. THE STATE.
    (445 SE2d 309)
   McMurray, Presiding Judge.

Indicted for child molestation, defendant was tried before a jury and found guilty of that charge. After the denial of his motion for new trial, defendant appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilty. Held:

1. Complaining that the trial court failed to conduct the admissibility hearing mandated by Uniform Superior Court Rule (USCR) 31.3 (B), defendant first enumerates as error the admission into evidence of testimony relating to his alleged commission of a similar prior criminal transaction. The record shows that pursuant to USCR 31.1, the State gave written notice of its intent to introduce evidence that in 1989 defendant had similarly molested another child. However, there is no indication that the trial court conducted a hearing pursuant to USCR 31.3 (B). Nonetheless, this similar transaction evidence was admitted over hearsay objections. Although defendant did not object at trial on the ground that the trial court failed to conduct a USCR 31.3 (B) hearing, he raised this issue at the hearing on his motion for new trial.

Relying on Gilbert v. State, 208 Ga. App. 258, 262 (3), 263 (430 SE2d 391), the State urges that defendant has waived any error by failing to object at trial. This reliance is misplaced. In Gilbert, that defendant enumerated the admission into evidence of a prior guilty plea to trafficking in cocaine and of testimony about that earlier charge, arguing that the trial court had held no USCR 31.3 (B) hearing. There was a conflict in the evidence of the procedural history of that case and this court, applying the presumption of regularity, held that the record supported the determination of the trial court that a USCR 31.3 (B) hearing had been held. This court then injected the parenthetical observation that if defendant were “correct, and if no hearing was held, then he is estopped from raising this argument, since he made no objection to the evidence of [the] prior act when it was introduced.” However, that statement was not necessary to the decision and is not to be considered as having been decided so as to constitute binding precedent. See State Hwy. Dept. v. Cooper, 104 Ga. App. 130, 136 (121 SE2d 258). “Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand are obiter dicta, and lack the force of an adjudication.” Black’s Law Dictionary, p. 541 (4th ed.). The issue of whether the procedural error in failing to conduct a USCR 31.3 (B) hearing has been preserved for appellate review in the case sub judice is controlled by the following direct ruling in Riddle v. State, 208 Ga. App. 8, 9 (1b), 11 (430 SE2d 153): “[T]he burden of conducting the requisite hearing before similar transaction evidence can be admitted at trial is placed squarely with the State and the trial court; defendant bears no burden to initiate this procedure.. Accordingly, [since this ground was raised before the trial court at the hearing on the motion for new trial and pursued on appeal via an enumeration of error supported by argument and citation of authority,] the defendant’s failure to object to the admission of similar transaction evidence on the basis that a Rule 31-3 (B) hearing was not conducted does not constitute a waiver of the procedure dictated by Rule 31.3 (B) and does not preclude our consideration of this issue on appeal.” Riddle v. State, 208 Ga. App. 8, 11 (1b), supra. See also Ross v. State, 210 Ga. App. 455, 458 (2) (436 SE2d 496), acknowledging the authority of Riddle that an objection to the failure to conduct a USCR 31.3 (B) hearing is not necessarily waived by failing to object when such evidence is offered at trial, but distinguishing that case and holding that the complete failure to object at trial coupled with the complete failure to raise the issue on appeal precludes appellate review of the procedural error in failing to conduct the USCR 31.3 (B) hearing.

“[B]efore any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held pursuant to Uniform Superior Court Rule 31.3 (B). At that hearing, the state must make three affirmative showings as to each independent offense or act it seeks to introduce. . . . After the 31.3 (B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act.” (Footnote omitted.) Williams v. State, 261 Ga. 640, 642 (2b) (409 SE2d 649). Moreover, after the State has made the necessary showings at the USCR 31.3 (B) hearing, the trial court retains the sound legal discretion to exclude relevant similar crimes evidence on the ground that its probative value is substantially outweighed by the danger of unfair prejudice. See Brockman v. State, 263 Ga. 637, 640 (3) (436 SE2d 316). In the case sub judice, the trial court did not conduct an admissibility hearing pursuant to USCR 31.3 (B), nor did the trial court make a determination on the record that the State had satisfied the three requirements for the admission into evidence of the alleged similar transaction. However, the trial court’s error in failing to conduct the admissibility hearing mandated by USCR 31.3 (B) is not automatically a good ground for new trial but is subject to scrutiny for harmless error. Cavender v. State, 208 Ga. App. 61, 62 (2), 63 (429 SE2d 711). See also Barrett v. State, 263 Ga. 533 (2), 535 (436 SE2d 480). In the case sub judice, the State presented the victim’s direct evidence as well as circumstantial evidence of defendant’s guilt as related by adults pursuant to OCGA § 24-3-16. In opposition, defendant testified that he did not commit the crime alleged in the indictment. There is no conclusive medical or physical evidence as to his commission of the crime. Consequently, the evidence of defendant’s guilt in this instance cannot be said to be overwhelming. See Stewart v. State, 263 Ga. 843, 844 (1) (440 SE2d 452). Compare Cavender v. State, 208 Ga. App. 61, 62 (2), 63, supra; Barrett v. State, 263 Ga. 533 (2), supra. The failure to conduct a USCR 31.3 (B) hearing prior to the introduction of evidence of similar acts of child molestation has been held to be reversible error requiring a new trial where such error is not rendered harmless by overwhelming evidence of guilt. Riddle v. State, 208 Ga. App. 8, 11 (1b), supra. However, in the recent case of Stewart v. State, 263 Ga. 843, 844 (1), supra, the Georgia Supreme Court stated it was unable to conclude at that time that the error in admitting evidence of prior difficulties without the prior procedural protections of USCR 31.3 (B) required a new trial, even though the evidence of guilt was not overwhelming. Instead, the remedy was to “remand the case to the trial court to conduct a post-trial [USCR 31.3 (B)] hearing.” Stewart v. State, 263 Ga. 843, 844 (1), 845, supra. Likewise, we remand the case sub judice to the trial court to conduct a USCR 31.3 (B) hearing. If the trial court determines that the State’s evidence of similar transactions does not demonstrate substantial relevancy for a proper purpose under the standards of Williams v. State, 261 Ga. 640, 642 (2b), supra, or if such relevancy is substantially outweighed by the danger of unfair prejudice, Brockman v. State, 263 Ga. 637, supra, then a new trial would be warranted. See Riddle v. State, 208 Ga. App. 8, 11 (1b), supra. Conversely, if the trial court determines that the State’s evidence of similar transactions was admissible pursuant to USCR 31.3 (B) and Williams v. State, 261 Ga. 640, supra, then a new trial is unnecessary. Stewart v. State, 263 Ga. 843, 844 (1), 845, supra.

2. In his second enumeration of error, defendant urges several instances where the trial court erroneously admitted hearsay evidence, including a videotaped interview of the victim by a caseworker from the Cobb County Department of Family & Children Services. Each of the alleged instances of allegedly inadmissible hearsay has been examined and is found to refer to evidence of an indecent act done by defendant to a minor and admissible through the testimony of adults, pursuant to OCGA § 24-3-16. Each minor victim took the stand, relating the acts referred to by the adults, and each was subject to cross-examination. Although defendant now complains that no showing was made of any indicia of reliability, OCGA § 24-3-16 does not mandate a hearing on the indicia of reliability before such child hearsay evidence is admissible. Reynolds v. State, 251 Ga. 725 (2), 726 (363 SE2d 249). The record reveals that sufficient indicia of reliability surrounding the circumstances of each child’s statements, even though some of the statements were not original outcry but were made during interviews with the child in response to questions posed by adults. Specifically, we find nothing to indicate that the children were coached or were subjected to unduly leading or suggestive interview techniques. Holden v. State, 202 Ga. App. 558, 562 (4) (414 SE2d 910). The videotaped interview of the victim was introduced and played at trial without objection. The taped interview was transcribed and is part of the record. This videotape was authenticated by the investigating officer who prepared it. As all the requirements for the admission into evidence of a videotape as set forth in Brooks v. State, 141 Ga. App. 725, 733 (8), 734 (a) (234 SE2d 541) were met in the case sub judice, the trial court did not err in admitting this videotape of the child’s statements. Newberry v. State, 184 Ga. App. 356, 357 (2) (361 SE2d 499). Defendant’s second enumeration is without merit.

3. Defendant’s third enumeration, urging that child hearsay statements attributed to the victim of the prior similar molestation were not admissible pursuant to OCGA § 24-3-16 because that victim was not available to testify, simply is not supported by the record. This witness took the stand and was cross-examined by defense counsel.

4. In his fourth enumeration of error, defendant contends that the trial court twice erroneously admitted hearsay statements of the mother of the victim of the prior similar offense. The record shows that Officer Storey of the Cobb County Police Department and Paige Murvis (nee Martin) went to the home of this mother of the victim of the prior similar offense to investigate a report that her daughter had been sexually abused. This mother is deaf and communicates mainly through sign language. Neither Officer Storey nor Ms. Murvis could understand sign language, so they left and returned with a co-worker who had some knowledge of sign language. Over defendant’s hearsay objection, the trial court permitted Officer Storey and Ms. Murvis each to relate a statement attributed to this mother from that interview that defendant had molested her daughter. However, this mother subsequently took the stand and, via an interpreter, testified as to the same event.

“In Cuzzort [v. State, 254 Ga. 745 (334 SE2d 661)] [the Georgia Supreme Court] held that the concerns of the rule against hearsay are satisfied where the witness whose veracity is at issue is present at trial, under oath, and subject to cross-examination. When these conditions are satisfied, the prior consistent out-of-court statement of the witness is admissible. [Cits.]” Carroll v. State, 261 Ga. 553, 554 (1) (408 SE2d 412). In the case sub judice, both the mother and her daughter were subject to cross-examination regarding the details of the incident related. Consequently, under the authority of Cuzzort v. State, supra, the trial court did not err in admitting into evidence, through the testimony of the investigators, the mother’s statement that defendant had molested her daughter in the prior similar offense.

5. Defendant’s fifth enumeration raises another instance whereby the trial court admitted purported hearsay under the following circumstances: The mother of the victim in the case sub judice testified on direct examination: “P— B--, [an adult neighbor] which is a good friend of [the prior similar offense victim’s] mother, come over and told me that [the victim in the case sub judice] may have been bored [sic] because [the prior similar offense victim] was bored [sic].” Defense counsel interposed a hearsay objection. The State’s attorney replied that the evidence was offered to explain the conduct of the victim’s mother in questioning the victim. Defendant’s objection was overruled.

While there is considerable doubt that the conduct of the victim’s mother, in the case sub judice, was an issue which needed to be explained by the hearsay statement of a neighbor who did not testify, nevertheless, we find the admission of that statement to be harmless error. By the State’s own rationale, the statement was not proffered as proof of the truth that either of the girls had in fact been “bothered” by anyone, much less by defendant. Rather, proof of defendant’s indecent liberties came from the victims themselves. The erroneous admission of such inconsequential hearsay on an issue not essential to the State’s case could not have materially affected the jury’s verdict in this case and is not a good ground for a new trial. Glass v. State, 235 Ga. 17, 18 (2), 19 (218 SE2d 776).

6. Next, the defendant enumerates the overruling of his motion for a new trial on the ground of ineffective assistance of counsel. The transcript of the motion hearing indicates that trial counsel did not testify and that the evidentiary basis is the transcript of the trial and the posture of the record. The specific allegations of unprofessional omissions are: (1) the failure to pursue a Batson-type challenge to the prosecutor’s use of peremptory challenges on behalf of a white defendant; (2) the failure to insist upon the admissibility hearing mandated by USCR 31.3 (B) before the State was permitted to introduce evidence of a prior similar crime; and (3) the failure to interpose various evidentiary objections.

The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed unless that determination is clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641). In the case sub judice, we have reviewed the transcript of the motion hearing, as well as the entire trial record, and find that the evidence supports the conclusion that defendant has failed to establish his claim of ineffective assistance under the standards of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674). Hammock v. State, 210 Ga. App. 513, 514 (2) (436 SE2d 571). The strategic decision not to pursue a Batson-type challenge to the State’s use of its peremptory strikes against black venire, on behalf of a Caucasian defendant, did not demand a finding that “trial counsel’s conduct fell below that standard of reasonably effective assistance which members of the bar in good standing are presumed to render, as that right to effective assistance is protected by both the Georgia and federal constitutions. Hill v. Balkcom, 213 Ga. 58 (1) (96 SE2d 589).” Shaw v. State, 211 Ga. App. 647, 649 (2) (440 SE2d 245). The failure of trial counsel to insist on the admissibility hearing mandated by USCR 31.3 (B) has not resulted in harm requiring a new trial, in light of our disposition in Division 1 and consequent remand. It follows that defendant is unable to establish that he has been prejudiced by this omission. Miller v. State, 208 Ga. App. 547, 548 (2) (430 SE2d 873). The evidentiary objections proffered as proof of harmful unprofessional omissions have been considered above in separate enumerations and have been found to be without merit in every instance but one. The sole instance in which evidence was in fact erroneously admitted involved inconsequential hearsay. Evidence that inconsequential hearsay was not objected to did not demand a finding that, but for trial counsel’s allegedly unprofessional failure to exclude that inconsequential hearsay, there was a reasonable probability that the result of the proceeding would have been different. Robinson v. State, 210 Ga. App. 278, 279 (2) (435 SE2d 718). The trial court correctly overruled defendant’s motion for new trial on the ground of ineffective assistance of counsel.

Judgment affirmed and case remanded with direction.

Pope, C. J., and Smith, J., concur specially.

Smith, Judge,

concurring specially.

I concur fully as to Divisions 1, 2, 4, and 5, but differ with the majority’s treatment of Divisions 3 and 6.

1. The majority’s Division 3 makes it appear that appeal counsel has somehow overlooked the fact that the child witness to whom certain hearsay statements were attributed took the witness stand and was cross-examined by trial counsel. This is not the case. The contention, fairly stated, is that the hearsay statements were inadmissible because the witness was not examined by the court under OCGA § 24-9-5 as it existed prior to the 1989 amendment, and therefore was not “available to testify” within the meaning of OCGA § 24-3-16. See, e.g., Hunnicutt v. State, 194 Ga. App. 714 (391 SE2d 790) (1990). Trial counsel waived the issue of competency by failing to object at trial, and we should not be hesitant to say so. See Keasler v. State, 165 Ga. App. 561 (1) (301 SE2d 915) (1983). As the majority points out, the child did take the witness stand and was subject to cross-examination. Since any potential issue of competency was waived, we can find no error on this basis.

2. (a) As for the issue of trial counsel’s effectiveness, I first address trial counsel’s waiver of the competency issue as discussed above. After reviewing the transcript, there appears to be no reasonable probability that but for trial counsel’s failure to object on competency grounds, the child witness would have been declared incompetent. The State’s questioning of the child and the child’s responses affirmatively indicate that the child could distinguish between the truth and a lie, that she knew she should only tell the truth in court, and that she intended to do just that. This testimony belies any contention that the trial court probably would have ruled the witness incompetent if trial counsel had asked for such a determination. Based on the transcript of the child’s testimony, I see no reason to believe that the trial court would have exercised its discretion to White’s benefit and declared the witness incompetent even if trial counsel had timely objected. White “has failed to show that, but for this omission, the result at trial would have been different.” Robinson v. State, 210 Ga. App. 278, 280 (3) (435 SE2d 718) (1993).

(b) The majority affirmatively states that trial counsel did not testify at the motion for new trial, but then later states, without apparent support, that the failure to pursue a Batson-type challenge by counsel for this white defendant was a “strategic decision.” I am not willing merely to assume that White’s trial counsel allowed the State to strike black jurors as part of his trial strategy. The majority plainly implies that White’s counsel made a strategic decision based on the “fact” that White would certainly be pleased to have the State strike all blacks from the venire. I cannot accept this premise.

Decided June 3, 1994.

Wallace C. Clayton, for appellant.

Thomas J. Charron, District Attorney, Rose L. Wing, Assistant District Attorney, for appellee.

The State likewise disagrees with the majority’s conclusion. In fact, the State readily concedes that trial counsel did in fact attempt to allege a Batson violation, albeit late. The State’s position is that it did not in fact discriminate, or at least the record does not show it, and that therefore White cannot show harm as well as error.

Despite my strong differences with the majority’s analysis, I nevertheless can find no basis for reversible error on this ground. “Appellant made no attempt to have the record or transcript amended to include any objectionable matter which might have transpired during voir dire. OCGA § 5-6-41 (f). The entire voir dire is not required to be reported in all felony cases. Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). When this is not done, there is nothing for the appellate court to review.” (Citations and punctuation omitted; emphasis supplied.) Meier v. State, 190 Ga. App. 625, 626 (1) (379 SE2d 588) (1989).

White has failed to meet his burden to complete the record using the statutory means available to him. Since we have been presented with no basis to determine the existence of a Batson violation in the first instance, we are likewise presented with no basis to conclude that the ruling of the trial court in denying White’s motion for new trial on the ground of ineffective assistance of trial counsel was clearly erroneous. Nolan v. State, 204 Ga. App. 170, 172 (3) (419 SE2d 72) (1992).

I am authorized to state that Chief Judge Pope joins in this special concurrence.

       Since trial counsel has not been heard on this issue, it is questionable whether White has presented a claim worthy of review. See, e.g., Williams v. State, 251 Ga. 749, 809 (20) (312 SE2d 40) (1983).


author: McMurray, Presiding Judge.

text:
    A94A0112.
    CALHOUN v. THE STATE.
    (444 SE2d 860)
   McMurray, Presiding Judge.

Defendant was indicted in three counts for aggravated child molestation (Count 1) and child molestation (Counts 2 and 3). All three counts of the indictment are based on separate acts against the same minor victim. Specifically, Count 1 alleges that defendant committed an act of oral sodomy against the victim. Count 2 alleges that defendant exposed his sex organ to the victim, displayed pornographic magazines to the victim and committed a sexually explicit act with another in the presence of the victim. Count 3 alleges that defendant and an unnamed 15-year-old child committed an act of sodomy in the presence of the victim.

The case was tried before a jury and the victim, 12 years of age at the time of trial, testified that defendant committed acts which constitute the crime aggravated child molestation as charged in Count 1 of the indictment. Bertha Bailey testified that she and her two sons (13 and 16 years of age at the time of trial) resided with defendant; that the victim often visited her home and that neither she nor her 16-year-old child or defendant committed the acts alleged in Counts 1 through 3 of the indictment. Bailey’s 16-year-old child testified that he and defendant did not perform a sexually explicit act in the victim’s presence as alleged in Count 3 of the indictment.

The jury found defendant guilty of aggravated child molestation as alleged in Count 1 of the indictment and not guilty of child molestation as alleged in Counts 2 and 3 of the indictment. This appeal followed the denial of defendant’s motion for new trial. Held:

In his. sole enumeration, defendant contends the trial court erred “in permitting the State’s attorney to question several witnesses about unrelated similar and dissimilar transactions [, arguing] that this evidence impermissibly places his character in issue without him doing so first.” Specifically, defendant contends (in the argument supporting this enumeration) that the State impermissibly placed his character in issue during examination of four witnesses.

“ ‘Our law requires that enumerations “shall set out separately each error relied upon” (OCGA § 5-6-40). . . .’ Murphy v. State, 195 Ga. App. 878, 880 (6) (395 SE2d 76). When an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 (Murphy, supra) or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining [enumerations] as abandoned. (West v. Nodvin, 196 Ga. App. 825, 830 (4c) (397 SE2d 567)).” Robinson v. State, 200 Ga. App. 515, 518 (2b) (408 SE2d 820). It is from this perspective that we address defendant’s contention that his character was impermissibly placed in issue during the State’s examination of Investigator Michael John Crozier of the Stephens County Sheriff’s Department.

At trial, Investigator Crozier testified that he interviewed the victim (on videotape) and that the victim informed him that defendant committed the acts alleged in Counts 1 through 3 of the indictment. Defense counsel then cross-examined the investigator and the State’s attorney followed-up with the following redirect examination: “Q. Mr. Crozier, in regard to Count No. Three [of the indictment], [defense counsel] was asking you about [the unnamed 15-year-old child who allegedly committed sodomy in the victim’s presence]? A. Yes, sir. Q. Were you able to, in your investigation, verify from [the unnamed 15-year-old child] where [the act of child molestation alleged in Count 3 of the indictment] took place and whether or not it did take place? A. No, sir. Q. As to the [alleged] act of [defendant] placing his mouth on the [private part] of [the unnamed 15-year-old child]? A. At the lake as in Count Three, no, sir. Q. Were you able to verify as to whether that took place at all? A. I only had the statement of [the victim] on that. Q. Did you talk to [the unnamed 15-year-old child]? Did you interview [the unnamed 15-year-old child] at any point in time? A. I have interviewed [him] in the past, yes, sir. Q. And did he tell you whether or not [defendant] had placed his mouth upon his [private part]? A. He didn’t say at the lake, sir. Q. Mr. Crozier, do you understand my question? A. Yes, sir. [DEFENSE COUNSEL]: I do, too, and I object to it, and I’d like to take the matter up outside the presence of the jury, Your Honor. These questions are calculated to prejudice the case, and I know where he’s going, and I’d like to make my point.” Argument on this objection was then taken up outside the presence of the jury. Defense counsel then moved “for a dismissal of the case against [defendant], based upon prejudicial and calculated wilful and wanton conduct on the part of State’s Counsel in that he posed a question to this Witness about conversations that this witness supposedly had with [the unnamed 15-year-old child] concerning any sex act between [said child] and [defendant], and no such conversation between Mr. Crozier and [the 15-year-old child] occurred with reference to this case.” Defense counsel then proffered evidence that Investigator Crozier questioned the unnamed 15-year-old child in another case pending against defendant. The trial court denied defendant’s motion to dismiss the charges against defendant.

Defendant argues that “[although the answer given by [Investigator] Crozier was that [the unnamed 15-year-old child who allegedly committed sodomy in the victim’s presence] did not tell him such conduct occurred ‘at the lake,’ it was still a qualified response that could have created a negative inference against [defendant] that there was sex between [the unnamed 15-year-old child] and [defendant] at another time or other times, not at the lake.” We do not agree. We find nothing in the above quoted examination which impermissibly places defendant’s character in issue.

We have considered other contentions raised in this enumeration and find them to be without merit.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

Decided June 3, 1994.

Timothy P. Healy, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.


text:
    A94A0646, A94A0647.
    KEEFE et al. v. CARPET & UPHOLSTERY CLEANING BY HOUNDSTOOTH, INC.; and vice versa.
    (444 SE2d 857)
   McMurray, Presiding Judge.

On June 11, 1992, plaintiff Lawrence Dennis Keefe was injured at his place of residence when he slipped and fell on water placed on the floor by Marion Johnson while cleaning carpets in the home. This negligence action seeks damages from defendant Carpet & Upholstery Cleaning by Houndstooth, Inc. on a theory of respondeat superior in favor of the injured plaintiff and in favor of his wife, Rachel Keefe, who seeks damages for loss of consortium. Defendant maintains that Marion Johnson was an independent contractor for whom it bore no responsibility.

Following discovery, the state court considered opposing motions and in an order entered October 5, 1993, granted summary judgment in favor of defendant on the issue of apparent or ostensible agency, and denied defendant’s motion for summary judgment on the issue of actual agency. These rulings were made a final judgment by the entry of an order pursuant to OCGA § 9-11-54 (b). In Case No. A94A0646, plaintiffs appeal from the grant of summary judgment in favor of defendant on the issue of apparent agency and from the denial of their motion for partial summary judgment on the issue of agency, either actual or apparent. In the cross-appeal, Case No. A94A0647, defendant appeals that portion of the October 5, 1993 order which partially denied its motion for summary judgment and held that genuine issues of material fact exist regarding the existence of an actual agency relationship between defendant and Marion Johnson. Held:

1. Plaintiff Rachel Keefe deposed that she had placed the order for carpet cleaning with defendant, that she had defendant’s coupon such as was received in the mail at regular intervals, that the coupon fixed the price of the transaction, and that it was a good advertisement. The order telephoned in by Rachel Keefe was related by a dispatcher to Marion Johnson who then telephoned Rachel Keefe to arrange a time. The initial appointment was rescheduled and Marion Johnson eventually arrived at the house to clean the carpets. He testified that he identified himself as “Marion from Houndstooth.”

In order for plaintiffs to recover under a theory that Marion Johnson was an apparent agent or servant of defendant, they must present evidence that defendant represented or held out Marion Johnson as its apparent agent or servant and must show justifiable reliance upon the representation led to the injury. McGuire v. Radisson Hotels Intl., 209 Ga. App. 740, 743 (2) (435 SE2d 51); Holmes v. Univ. Health Svcs., 205 Ga. App. 602, 603 (423 SE2d 281). Plaintiffs have satisfied the first portion of this test by showing the manner in which defendant conducted its business. Defendant solicited business via direct mail advertising using only defendant’s telephone number. Defendant’s dispatchers then distributed the jobs to carpet cleaners who, when they telephoned the potential customers in order to schedule the work, identified themselves as being “with” defendant. The representations of the carpet cleaners are not directly attributable to defendant. However, it may be inferred from the evidence that the carpet cleaners were encouraged to identify themselves in such a manner by defendant. The carpet cleaners could be supplied with defendant’s business cards, but in any event were prohibited from distributing any business cards other than defendant’s. When the jobs were completed, the carpet cleaners were generally required to use invoice forms which requested any checks be payable to defendant. In short, the manner of defendant’s advertising, dispatching of carpet cleaners, and the way defendant required the carpet cleaners to present themselves to customers combined in such a manner that someone having work done by one of defendant’s carpet cleaners would have no reason to believe they were customers of anyone other than defendant. Defendant’s actions in creating these circumstances could be viewed as a representation of holding out of a carpet cleaner (such as Marion Johnson) as an agent. Richmond County Hosp. Auth. v. Brown, 257 Ga. 507, 509 (361 SE2d 164).

Nor was there any absence of evidence as to the required element of reliance. Rachel Keefe noted the repeated and good advertising from defendant. Such advertising is a means by which a business holds itself out as competent and reliable. Plaintiff Rachel Keefe relied upon the representations intrinsic to defendant’s advertising. It was not necessary that plaintiff Lawrence Keefe personally place any reliance upon the representations of defendant since Rachel Keefe was acting on his behalf as both his marital partner, and as a member of an extended household in which all expenses were shared. Richmond County Hosp. Auth. v. Brown, 257 Ga. 507, 509, supra; Restatement of Law 2d, Torts, § 429, comment a. While the state court erred in granting a partial summary judgment in favor of defendant on the issue of apparent agency, we do find conflicting evidence so that the denial of plaintiffs’ motion for summary judgment on the issue of apparent agency was not error.

Decided June 3, 1994.

Belcher, Pakchar & Sams, Pat E. Belcher II, Jay W. Pakchar, Arrington & Hollowell, W. Ray Persons, for appellants.

Chambers, Mabry, McClelland & Brooks, Walter B. McClelland, Eugene C. Bessent, for appellee.

2. Turning to the question of whether Marion Johnson was an actual agent of defendant, we find that the traditional or “true” test of whether a person is a servant or an independent contractor has been stated in terms of whether the employer has the right to direct the time, the manner, the methods, and the means of execution of the work, as contrasted with the right to insisting upon results according to specifications of the contract. Hall v. Buck, 206 Ga. App. 754, 758 (6) (426 SE2d 586). Other cases rely upon the list of ten factors to be considered pursuant to Restatement of Agency 2d, § 220 (2). Murphy v. Blue Bird Body Co., 207 Ga. App. 853, 854 (1) (429 SE2d 530). Applying the factors from both of these tests to the uncontroverted facts in the cases sub judice, we do not find that either alternative answer is compelled by the evidence. Therefore, we conclude that the state court did not err in denying defendant’s motion for summary judgment on the issue of actual agency.

Judgment affirmed in part and reversed in part in Case No. A94A0646. Judgment affirmed in Case No. A94A0647.

Pope, C. J., and Smith, J., concur.


author: Blackburn, Judge.

text:
    A94A0782.
    WALSTON v. WHITE.
    (444 SE2d 855)
   Blackburn, Judge.

Appellant, Spring Melinda Walston, was allegedly injured in a November 1990 automobile accident when the vehicle she was traveling in was rear-ended by vehicles driven by Andrea Hughes and Jeffrey Birdsong. The vehicle driven by Birdsong was titled in Jack and Stephen White, and Stephen White was a passenger at the time of the accident. Walston brought suit to recover damages for her injuries against Hughes, Birdsong, Jack White and Stephen White. The trial court granted summary judgment for Jack White based on the inapplicability of the family purpose doctrine, and this appeal followed.

On appeal, Walston contends Jack White, the sole appellee, owned the automobile driven by Birdsong and that appellee provided the vehicle for the use of Stephen, his son. Walston argues, therefore, any liability of Stephen is imputed to appellee under the family purpose doctrine.

The evidence established that Stephen purchased the vehicle at issue in December 1988 or January 1989. He financed the purchase at a local bank, and the bank required appellee to co-sign the note with Stephen. Both Stephen and appellee were listed on the title as joint owners. Stephen was responsible for and made every payment on the car loan without any financial assistance from appellee. Stephen also paid all the insurance premiums and all operational and maintenance costs for the vehicle. The money for these payments was earned by Stephen through part-time employment while attending college. Additionally, Stephen exclusively operated the vehicle for his own personal business, including going to and from work and school.

Appellee did not use the vehicle, was not in possession of its keys, and did not attempt to exercise authority or control over the vehicle. The record is unclear as to who obtained insurance on the vehicle, but appellee received the proceeds from the insurance which were used to purchase another vehicle for Stephen.

“In Georgia, when an automobile is maintained by the owner for the use and convenience of his family, such owner is liable for the negligence of a member of the family having authority to drive the car while it is being used for a family purpose. To apply the family purpose doctrine to a given situation, four criteria must be met: (1) the owner of the vehicle must have given permission to a family member to drive the vehicle; (2) the vehicle’s owner must have relinquished control of the vehicle to the family member; (3) the family member must be in the vehicle; and (4) the vehicle must be engaged in a family purpose. To come within the application of the doctrine, the defendant must own the automobile, or at least have some recognized property interest in it or supply it, and he must have made it available for family use, rather than for use in his business. Nevertheless, the principal factor is authority and control of the vehicle, and this is not necessarily determined by title to the vehicle or payment for the expenses of operation. Agency, not ownership, is the test of liability. Thus, in a family purpose situation the crucial issue may be whether the defendant supplied or furnished the vehicle for family purposes. Consequently, a mere showing that the vehicle was registered in the head of household’s name and utilized by a family member alone is not sufficient to establish this to be a family purpose car. The doctrine applies to render the defendant vicariously liable if he had the right to exercise such authority and control that it may be concluded that an agency relationship existed between him and the family member with respect to the use of the vehicle.” (Citations and punctuation omitted.) Quan v. Johnson, 190 Ga. App. 510, 511 (379 SE2d 426) (1989); see also Bailey v. Butler, 199 Ga. App. 753, 754 (406 SE2d 97) (1991).

Decided June 3, 1994.

Reynolds & McArthur, Charles M. Cork III, for appellant.

Martin, Snow, Grant & Napier, William H. Larsen, Alan M. Maxwell, Miller & Towson, Craig N. Cowart, for appellee.

Stephen deposed that immediately after the accident, he switched positions with Birdsong because Stephen wished to conceal from appellee that Birdsong was driving. Walston contends this testimony raises an issue of fact for the jury regarding appellee’s control and authority over the vehicle sufficient to deny summary judgment. We disagree. We have read the entire testimony in this regard and find Stephen’s actions and comments show a desire not to disappoint his father, rather than any actual control by appellee over Stephen’s operation of the vehicle.

Additionally, even assuming Stephen’s, testimony conclusively showed that appellee did not want Stephen to allow anyone else to drive Stephen’s automobile, such evidence would not raise an issue of fact barring summary judgment. Such evidence alone would not establish an agency relationship between appellee and Stephen with respect to the use of the vehicle. “The summary judgment law does not require the defendant to show that no issue of fact remains, but rather [that] no genuine issue of material fact remains . . . ; and while there may be some ‘shadowy semblance of an issue’ . . . , the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion. [Cits.]” McCray v. Hunter, 157 Ga. App. 509, 511-512 (277 SE2d 795) (1981).

“Here the family purpose doctrine is not applicable because the undisputed evidence established that [appellee] did not have the requisite authority and control over [Stephen’s] use of the vehicle.” Bailey, supra at 754. The depositions and the affidavit established that Stephen exclusively used the vehicle and that appellee had no right to specify when, how, or for what purpose he used it. Additionally, the requisite authority and control was not established because the vehicle may have been insured under appellee’s insurance and appellee received the insurance proceeds and was listed as a title owner. See id.; Finley v. Berman, 190 Ga. App. 692, 694 (379 SE2d 640) (1989); Calhoun v. Eaves, 114 Ga. App. 756, 760-761 (152 SE2d 805) (1966). Accordingly, the trial court properly granted appellee’s motion for summary judgment.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.