author: Ellington, Judge.

text:
    A02A0857.
    JOHNSON v. THE STATE.
    (569 SE2d 625)
   Ellington, Judge.

Scott Johnson appeals following the trial court’s denial of his plea in bar on double jeopardy grounds. The City Court of Atlanta tried Johnson on four counts: driving under the influence of alcohol to the extent that it was less safe for him to drive, OCGA § 40-6-391 (a) (1); driving on the wrong side of the road, OCGA § 40-6-40; disobeying a traffic control device, OCGA § 40-6-20; and reckless driving, OCGA § 40-6-390. The trial court granted a mistrial as to all four counts after the jury, having reached a decision on the wrong side, traffic control device, and reckless driving counts, deadlocked on the DUI charge. Johnson contends that the trial court erred in failing to grant his request to accept the jury’s unanimous verdict on three counts of a four-count accusation where the jury was hung on the remaining count. Johnson further contends the trial court abused its discretion in granting the State’s motion for mistrial as to the undecided count. For the reasons which follow, we reverse the denial of Johnson’s plea as to the three decided counts and affirm as to the undecided count.

The record reflects that after the presentation of evidence, the jury announced that it had reached a unanimous verdict on three counts of the accusation but was deadlocked on the DUI count. The trial court directed the jury to continue their deliberations and attempt to resolve the remaining count. After further deliberations, the jury again informed the trial court that it was deadlocked as to the DUI count. The trial court read the Allen charge to the jury. After further deliberations, the jury informed the trial court a third time that it was deadlocked as to the DUI count and that the vote had not changed. When the State moved for a mistrial, Johnson’s counsel requested that the trial court receive the verdicts on the three counts as to which the jury had reached unanimous agreement, and the State concurred. The trial court noted that the presentation of the evidence had lasted about one hour and forty minutes and that the jury had deliberated for three hours and twenty minutes, including forty minutes after the Allen charge. The trial court entered a mistrial on all four counts and later denied Johnson’s motion to dismiss based on his plea of former jeopardy.

Once [a defendant’s] jury [is] impaneled and sworn, jeopardy attache [s], and he [is] entitled to be acquitted or convicted by that jury. If a mistrial is declared without a defendant’s consent or over his objection, the defendant may be retried only if there was a manifest necessity for the mistrial. . . . A manifest necessity to declare a mistrial may exist under urgent circumstances, such as where an impartial verdict cannot be reached. . . . Because of the severe consequences of ordering a mistrial without the accused’s consent, a trial court should give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives.

(Citations and punctuation omitted.) Smith v. State, 263 Ga. 782, 783 (1) (439 SE2d 483) (1994). See Ga. Const, of 1983, Art. I, Sec. I, Par. XVII; OCGA § 16-1-8 (a). “The state bears the heavy burden of showing such manifest necessity where, as here, a mistrial is granted over the defendant’s objection.” (Citations and punctuation omitted.) Bair v. State, 250 Ga. App. 226 (551 SE2d 84) (2001). “It is also within the trial court’s discretion to determine whether a jury is hopelessly deadlocked, thus necessitating a mistrial. The decisive factor is not the length of the deliberation, but the inability of the jury to agree on a verdict.” (Punctuation and footnotes omitted.) Ramos v. State, 252 Ga. App. 106, 108 (2) (555 SE2d 779) (2001). See OCGA § 16-1-8 (e) (2) (C). “The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” (Citation and punctuation omitted.) Wilson v. State, 229 Ga. App. 455 (494 SE2d 267) (1997).

1. Johnson contends the trial court erred in refusing his request to accept the jury’s verdict on the three counts as to which they had reached a unanimous decision. We agree. Under the clear holding in Bair v. State, Johnson was entitled to receive any unanimous verdict reached by the jury impaneled and sworn to hear the charges against him. 250 Ga. App. at 226. In this case, the State concurred in Johnson’s request to receive the jury’s verdict on the three decided counts. Cf. id. (State objected to defendant’s request that the trial court receive the verdicts on counts decided by the jury). Because the trial court “could easily have followed the less drastic alternative of accepting the jury’s verdict on the decided counts and declaring a mistrial only on the . . . undecided count[ ],” we find that no manifest necessity existed for granting a mistrial as to the counts decided by the jury. Id. at 227. Cf. Williams v. State, 173 Ga. App. 207, 210-211 (325 SE2d 783) (1984) (physical precedent only) (Beasley, J., concurring specially) (manifest necessity shown where the jury’s verdict was possibly premature or incomplete as to the decided counts). Accordingly, the trial court abused its discretion in granting a mistrial on the charges of driving on the wrong side of the road, disobeying a traffic control device, and reckless driving; consequently, “a retrial on those counts is barred under the Double Jeopardy Clause.” (Citations omitted.) Bair v. State, 250 Ga. App. at 227.

2. Johnson contends the trial court abused its discretion in granting a mistrial as to the DUI count. Based on the relative brevity of the trial and simplicity of the issues, the length of the deliberations, and the measures taken by the trial court to evaluate the jury’s stated inability to agree on a verdict (including the giving of the Allen charge), we hold the trial court did not abuse its discretion in declaring a mistrial on the basis of manifest necessity as to the DUI charge. Griffin v. State, 264 Ga. 232, 233 (443 SE2d 612) (1994) (denial of plea in bar affirmed where mistrial declared in murder trial after less than six hours deliberation; jury deliberated after Allen charge and declared itself “hopelessly deadlocked”); Wood v. State, 234 Ga. 758, 759 (1) (218 SE2d 47) (1975) (denial of plea in bar affirmed where mistrial declared in rape trial after eleven hours deliberation; after polling jurors individually, trial court determined further deliberations would be “fruitless”); Ramos v. State, 252 Ga. App. at 108 (2) (denial of plea in bar affirmed where mistrial declared on simple DUI charge after three hours deliberation, including thirty minutes after Allen charge; jury indicated further deliberations would be “fruitless”). The State may retry Johnson on the DUI charge.

Decided July 26, 2002.

Chestney-Hawkins Law Firm, Sherry B. Lantz, Marny J. Heit, for appellant.

Joseph J. Drolet, Solicitor-General, Felicia N. McKibben, Assistant Solicitor-General, for appellee.

Judgment affirmed in part and reversed in part.

Smith, P. J, and Eldridge, J., concur.

        Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896).


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A02A0868.
    FELTS v. THE STATE.
    (569 SE2d 633)
   Blackburn, Chief Judge.

Following a jury trial, Jermaine Felts appeals his conviction for armed robbery, contending that: (1) the trial court erred by denying his objection to certain character evidence and his motion for a mistrial following the State’s opening statement and (2) his trial attorney rendered ineffective assistance of counsel. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the record shows that, around lunchtime on May 13, 1999, an unmasked robber entered a Long John Silver’s restaurant and pulled a knife on Samantha Montford, an employee. Montford moved away from the cash register and called her manager, Maxine Duboise. Meanwhile, the robber took money from the register, dropped the knife, and ran out of the store. Duboise then chased the robber but could not catch him.

The following day, an anonymous female telephoned Duboise and stated that she knew who committed the robbery and asked if a reward was being offered. Duboise referred the caller to the police. The caller then contacted Detective Long of the Atlanta Police Department and told him that the robber’s name was Jamal and that he lived with his mother at an address she provided. Angela Mackie later admitted that she had made the anonymous calls to Detective Long and Duboise.

Mackie testified that she had gone to Felts’ house and he had offered her $100 to have sex with him. She also testified that Felts had a large amount of cash in his pocket and a generous amount of crack cocaine. Following her visit, Mackie heard about the robbery, figured out that Felts had been the robber, went back to his home, and demanded “hush money” from him. Felts told Mackie that he would cut her throat if she said anything to the police. The following day, Mackie made her anonymous phone calls.

Montford positively identified Felts as the man who robbed her in a photographic lineup and at trial. While Duboise was not able to identify Felts from the pretrial photographic lineup, she did identify Felts at trial. In addition, a store videotape of the robbery was shown to the jury. The evidence was sufficient to support the verdict against Felts. See Jackson v. Virginia.

1. Felts contends that the trial court erred by denying his objection to certain character evidence and his motion for a mistrial following the State’s opening statement. During its opening, the State described Mackie’s act of prostitution with Felts and also informed the jury that she and Felts smoked crack together shortly after the robbery. The State contended that Felts used the proceeds from the robbery to pay Mackie and purchase the crack cocaine. Felts, however, did not object to these statements or move for a mistrial until the State had concluded its opening argument. “[I]t is plain that a defendant must timely object to the alleged impropriety in [opening] argument so that the trial court can take remedial action, if any is warranted.” Butler v. State Accordingly, Felts has waived his right to complain about this evidence on appeal.

Moreover, even if Felts had not waived his rights, “it is highly probable that this evidence did not contribute to the verdict in light of the overwhelming evidence of [Felts’] guilt.” (Punctuation omitted.) Cox v. State (evidence that defendants had been using marijuana just before assaulting victim deemed harmless). Therefore, any error was harmless.

2. Felts further contends that his trial attorney was ineffective because she failed to: (a) object to testimony by Detective Long in which he allegedly vouched for Mackie’s credibility; (b) move to suppress Duboise’s identification and to object to that identification at trial; and (c) object to testimony concerning Mackie’s original anonymous call to the police. As all of this evidence was properly admissible, Felts did not receive ineffective assistance of counsel.

The proper standard to be employed in determining enumerations concerning ineffective assistance of counsel, whether based upon a claim of right arising under federal or state law, is the two-pronged test announced in Strickland v. Washington. First, appellant must show that counsel’s performance was deficient; second, he is required to show that he was prejudiced by counsel’s deficient performance. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. As to the second prong, the question is whether there exists a reasonable probability that, but for his counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Further, a trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.

(Citations and punctuation omitted.) Cromartie v. State. Felts failed to make the requisite showings in this case.

(a) Felts contends that trial counsel failed to object when Detective Long improperly vouched for Mackie’s credibility. The record, however, belies this argument.

Detective Long testified that, in her original anonymous call, Mackie stated that the man who committed the robbery lived with his mother on the comer of Sanders and Florida Avenue in a house surrounded by a white fence. The State then asked Detective Long: “Is there a house at Sanders with a white picket — white fence?” Detective Long responded: “Everything [Mackie] told me was true. There is a . . . white fenced in house there.” In context, Detective Long was not improperly testifying to Mackie’s general credibility. Instead, he was stating, in essence, that he had independently verified Mackie’s report that the house she described actually existed. This independent verification of objective evidence, taken in context, did not constitute improper bolstering of Mackie’s testimony, and Felts’ trial counsel did not err by failing to object to this testimony.

(b) Felts contends that trial counsel provided ineffective assistance by failing to move to suppress Duboise’s identification or object to that identification at trial. The record shows that, prior to trial, Duboise was unable to identify Felts during a photo lineup. During the trial, however, Duboise was able to identify the defendant. Felts’ arguments that this identification was inadmissible are without merit. His argument that Duboise failed to identify his picture before trial merely raises an issue of the weight to be given to her testimony at trial. Her prior failure to identify Felts does not, however, make her subsequent in-trial identification inadmissible. West v. State Accordingly, Felts’ trial counsel was not ineffective for failing to argue that this identification testimony was inadmissible.

Decided July 26, 2002.

Maurice G. Kenner, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Benjamin M. First, Assistant District Attorneys, for appellee.

(c) Finally, Felts argues that his trial counsel was ineffective in failing to object to testimony from both Detective Long and Duboise regarding Mackie’s original anonymous calls implicating Felts. Felts contends that this evidence was inadmissible hearsay. Even if, as Felts contends, this testimony was hearsay, he has failed to show that its introduction was harmful. Following Detective Long’s and Duboise’s descriptions of these anonymous calls, Mackie took the stand, admitted that she had placed the calls, and described the content of the calls. “The erroneous admission of hearsay is harmless where . . . legally admissible evidence of the same fact is introduced.” Felder v. State.

Judgment affirmed.

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

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

        Butler v. State, 273 Ga. 380, 384 (8) (541 SE2d 653) (2001).

        Cox v. State, 242 Ga. App. 334, 339 (9) (528 SE2d 871) (2000).

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Cromartie v. State, 241 Ga. App. 718 (1) (527 SE2d 228) (1999).

        West v. State, 218 Ga. App. 341 (1) (461 SE2d 300) (1995).

        Felder v. State, 270 Ga. 641, 646 (8) (514 SE2d 416) (1999).


author: Johnson, Presiding Judge.

text:
    A02A1073.
    MURRAY v. THE STATE.
    (569 SE2d 636)
   Johnson, Presiding Judge.

A jury found Andre Ladell Murray guilty of aggravated assault. He appeals, alleging the evidence is insufficient to support his conviction, the trial court erred in refusing to charge the jury on the lesser included offenses of simple assault and simple battery, and the trial court erred in allowing the state to introduce evidence previously excluded at the state’s request. Because each of these enumerations of error lacks merit, we affirm Murray’s conviction.

1. On appeal, we view the evidence in the light most favorable to support the jury’s verdict, and we no longer presume that the appellant is innocent. Moreover, we do not weigh the evidence or determine the credibility of the witnesses. Instead, we determine only if there is sufficient evidence from which a jury could have found the appellant guilty beyond a reasonable doubt of the crime charged.

Viewed in this light, the evidence shows that on June 2, 1998, at about 10:00 p.m., the victim took a walk in his neighborhood. He was heading home when a gold Chevrolet passed him. The victim turned down the next street, and two men approached him quickly. One of the men pulled a gun and demanded: “Give me your money.” Frightened, the victim stopped and explained that he had nothing but keys. The gunman’s companion went behind the victim and frisked him.

The gunman remained in front of the victim, and the victim focused on him. The gunman’s face was not covered by any mask. The victim noted the gunman’s clothing and a gold medallion around his neck. According to the victim, the gunman was a young male, thin, and 5’7”-5’8” in height. The victim was especially struck that the gunman appeared calm. According to the victim, the gunman’s “eyes were clear, his skin was clear, he had a nice haircut,” and he did not look like a drug addict. The gunman was armed with a silver gun.

After the frisk confirmed that the victim did not have anything but his keys, the gunman moved off the sidewalk and into the street. The victim feared he would be shot, but instead the robbers fled. Two houses down the street, the victim observed them enter the same gold Chevrolet he had seen moments before the armed robbery attempt. The victim could see that the car was a gold Chevrolet Caprice, but could not see the license plate at that time. The victim did notice a symbol and mud flaps on the car.

Two days later, as the victim was putting his dry cleaning into his car, he spotted the gold car and recognized the driver as the gunman. The victim also noted that the gunman wore the gold medallion he had on at the time of the armed robbery attempt. This time, the victim was able to get a look at the car’s license plate, which was a Suncoast dealer tag. The victim reported this to the police.

On June 15, Murray was stopped in a gold Chevrolet Caprice with a Suncoast dealer tag. Murray fit the physical description of the robber, and he was wearing a gold chain with a medallion. A detective was called to the scene and searched the car, but did not find a gun. On that same day, an officer presented the victim with a group of six pictures, and the victim picked out Murray’s photograph. After seeing a photograph that included more of Murray’s body, including the gold medallion, the victim testified that he was positive Murray was the robber. The victim also identified Murray in court as the gunman.

The officer also showed the victim photographs of a gold Chevrolet Caprice, a Suncoast dealer tag, and a gold medallion, all of which the victim identified as belonging to the gunman. In the photographs of the car, the victim also recognized the mud flaps and a symbol on the car. The victim noted that while the car type was popular, the gold color, in his experience, was unique. The officer also testified that the color of the vehicle was “a very unique color ... a very unusual color car.” And, the tax commissioner testified that there were only 128 1986 Chevrolet Caprice Classics in the Chatham County tag system. He was unable, however, to say how many of the cars were gold, how many were metallic, how many had mud flaps, how many had a Suncoast tag, or how many had an emblem on the side.

Three days later, police executed a search warrant at Murray’s home. During the search, police discovered the car, the tag, and the gold medallion. However, no gun was recovered.

Murray’s mother testified that her son was on restriction for having stayed out beyond curfew and was prohibited from driving the car at the time of the robbery. She testified that the car was parked in front of their house, that Murray’s father had the keys to the car, and that Murray was upstairs in his room.

Murray contends the evidence is insufficient to support his conviction for aggravated assault because the conviction is based on circumstantial evidence and because the jury acquitted him of possession of a firearm during the commission of a felony. We disagree.

The evidence in the record, when viewed in a light most favorable to support the verdict, is sufficient for a rational trier of fact to find Murray guilty beyond a reasonable doubt of aggravated assault. Contrary to Murray’s argument, his conviction is not based on circumstantial evidence. Rather, his conviction is based on direct evidence, corroborated by circumstantial evidence. Here, the victim testified about his attack and specifically identified Murray as one of his attackers. This direct evidence was further corroborated by Murray’s possession of an unusually colored car matching the victim’s description and his possession of a medallion on a gold chain matching the victim’s description.

As for Murray’s claim that the jury’s acquittal on the gun charge precludes his conviction for aggravated assault, we find no merit to this argument. Possession of a firearm is not an element of aggravated assault with intent to rob. And, the aggravated assault count of the indictment did not allege that a gun was used. Moreover, there is no inconsistent verdict rule in Georgia. Thus, the jury’s decision on the gun charge does not alter the fact that the jury found sufficient evidence as to the aggravated assault charge, which is well supported by the record.

2. Murray contends the trial court erred in refusing to charge on simple assault and simple battery. We find no error. The evidence at trial shows that Murray pursued an alibi/mistaken identity defense. His defense was that he was at home because he was on restriction and not permitted to drive. Murray testified at trial that he was not in the area where the attempted robbery occurred and that he did not try to rob anyone. In short, the defense was that Murray committed no crime at all. Murray’s attorney told the jury during closing argument: “We don’t suggest to you for one second that what [the victim] describes as having happened didn’t happen. No, that’s not true. It happened. He’s not in here telling you a lie about that. It happened. What we do contest is that — what’s led to Mr. Murray sitting at that table. He was not the person there that night.”

Based on the evidence in the record and Murray’s own defense, either Murray committed the aggravated assault with intent to rob or he committed no crime at all. Even Murray’s attorney admitted in closing argument that the victim “rightfully and justifiably was terrified. His knees were shaking, his voice was trembling. He thought he was going to die.” The trial court did not err in refusing to charge the jury on the lesser included offenses of simple assault and simple battery.

The fact that Murray was acquitted of the gun charge has no bearing on whether the trial judge should have charged simple assault and simple battery in connection with aggravated assault. As we held in Division 1, possession of a firearm is not an element of aggravated assault with intent to rob. This enumeration of error lacks merit.

3. Murray asserts the trial court erred in admitting his videotaped interview at trial because it contains inadmissible hearsay and is burden-shifting. The record shows that the state moved to prohibit introduction of the videotaped interview between Murray and the police, arguing that the videotape was inadmissible as unreliable and self-serving hearsay. The trial court granted the state’s motion. Throughout the trial, Murray sought admission of the videotaped interview, but was not permitted to introduce the videotape. After the defense rested, the state moved to admit the videotaped interview, arguing that the videotape was relevant and admissible to rebut Murray’s alibi defense because Murray does not mention this defense on the videotape. The trial court granted the state’s motion, and Murray objected.

Murray first contends that the videotaped interview was inadmissible because it contains hearsay and attempts to impeach alibi witnesses with out-of-court statements by a declarant who has not testified at trial. We find no merit in this argument. A voluntary incriminating statement or confession by a criminal defendant is admissible as an exception to the hearsay rule.

Murray next argues that by admitting the videotape into evidence the trial court shifted the burden of proof from the state to Murray because the videotape creates a presumption that the alibi witnesses were lying and because Murray did not take the stand and explain why he failed to mention the alibi defense. According to Murray, the admission of the videotape either forced him to testify to explain the omission or left unrebutted the presumption that the alibi witnesses were lying. We find no merit in this argument.

The record shows that Murray did not testify, and the trial court expressly instructed the jury that “there is no burden of proof whatever on the defendant and the burden never shifts over to the defendant to require him to prove his innocence.” Additionally, the trial court charged the jury:

[T]he defendant in a criminal case is under no duty to present any evidence tending to prove his innocence and he is not required to take the stand and testify in the case. If the defendant elects not to testify, then no inference hurtful, harmful, or adverse to the defendant shall be drawn by the jury, nor shall such fact be held against the defendant in any way.

Moreover, contrary to Murray’s assertion that he was burdened with the need to explain why “he never discussed with the police the fact he was on restriction,” a police officer testified at trial that about an hour after the videotaped interview, Murray called to report that “my mother reminded me I was in trouble on the previous day and on that day I couldn’t go anywhere.”

As for Murray’s claim that the videotape had no purpose because the trial court did not charge the jury on the defense of alibi, we note that Murray withdrew his alibi charge request and specifically objected to the trial court instructing the jury on the defense. A defendant may not profit from errors he induces. The trial court did not err in permitting the state to introduce Murray’s videotaped interview as rebuttal evidence.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

Decided July 26, 2002

Martin G. Hilliard, for appellant.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

        Williams v. State, 228 Ga. App. 698, 699 (1) (492 SE2d 708) (1997).

       See OCGA § 16-5-21 (a) (1); Anderson v. State, 238 Ga. App. 866, 870 (1) (519 SE2d 463) (1999).

        Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986).

       See Van Doran v. State, 244 Ga. App. 496 (536 SE2d 163) (2000); Huckeba v. State, 217 Ga. App. 472, 475-476 (3) (458 SE2d 131) (1995).

        Shields v. State, 223 Ga. App. 169, 170 (477 SE2d 342) (1996); Moak v. State, 222 Ga. App. 36, 41 (5) (473 SE2d 576) (1996).

       See DeLoach v. State, 272 Ga. 890, 892 (2) (536 SE2d 153) (2000).


text:
    A02A1325.
    WILSON v. THE STATE.
    (569 SE2d 640)
   Blackburn, Chief Judge.

Matthew Keith Wilson appeals his convictions for possession of controlled substances, following a jury trial. He was convicted of possession of marijuana with intent to distribute (Count 1), possession of more than an ounce of marijuana (Count 2), possession of alprazolam (Count 3), possession of a firearm by a convicted felon (Count 4), and not keeping prescribed drugs in the original container (Count 5). In sentencing Wilson, the trial court merged Count 1 with Count 2, as a matter of law, and Count 3 with Count 5, as a matter of fact.

On appeal, Wilson argues that the evidence was insufficient to support his convictions for possession of the controlled substances, as the contraband was found in an area equally accessible to others, and not on Wilson’s property. He further argues that the trial court erred in admitting into evidence (1) certain drawings, which were not drawn to scale, and (2) reports and test results about which the preparer had testified at trial. We affirm.

1. Wilson asserts that there was insufficient evidence to support his convictions for possession of either marijuana or alprazolam. Specifically, he argues that the evidence was insufficient because the controlled substances were found, not on his own property, but on property to which others had access, and because there was no evidence, other than his mere presence, connecting him with the drugs. We disagree.

On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. An appellate court does not weigh the evidence or judge the credibility of the witnesses, but only determines whether the adjudication of guilt is supported by sufficient competent evidence.

Bohannon v. State.

A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity.

(Citations and punctuation omitted.) Noble v. State. “While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Punctuation omitted.) Bennett v. State. “Possession can be proven by circumstantial as well as direct evidence. All of the competent evidence adduced at trial, which was admissible against [Wilson], may be considered to show his constructive or joint possession.” (Citation and punctuation omitted.) Smith v. State. “Whether the circumstantial evidence is sufficient to exclude every reasonable hypothesis save that of defendant’s guilt is a question for the jury unless the verdict is insupportable as a matter of law.” Martin v. State. Similarly, “where there is evidence other than ‘equal access’ connecting an accused to contraband, it is for the jury to determine guilt or innocence.” (Punctuation omitted.) Blitch v. State.

In this case, there was something more to show participation in the illegal acts than mere presence. Viewed in the light most favorable to support the verdict, the evidence authorized the jury to find that on March 23, 2001, a confidential informant was sent to Wilson’s residence in rural Floyd County to make a controlled buy of marijuana. Investigators with the Rome Floyd Metro Task Force watched as the informant drove up a driveway and parked at Wilson’s residence. Approximately 15 minutes later, the informant met the investigators and turned over a one-ounce package of marijuana.

The investigators obtained a warrant to search Wilson’s house. Prior to the arrival of the investigators at Wilson’s house, a sheriff’s officer, Captain Larry Payne, was sent to the house to secure the scene. As Payne drove up, Wilson, who had been standing by his truck, walked into a nearby wooded area and then returned as Payne was getting out of his car. Minutes later, task force investigators arrived with two canine units. After Wilson’s house was cleared, the lead investigator directed the canine units to begin their search along a trail behind Wilson’s house. Within seconds, one of the dogs found a plastic container buried in the ground about 20 yards from the house just off the trail; inside the container were 14 one-ounce bags of marijuana and plastic bags commonly used for packaging marijuana. The area in which this plastic container was found and the part of the trail leading up to this area were the only areas behind the house where the ground was muddy; Wilson’s boots and the tires on a four-wheeler he acknowledged having ridden earlier in the day had fresh mud on them. Further along the trail, a dog found an ammo can and a glass jar; both were empty but had an odor of marijuana.

A dog was later taken to the wooded area, into which Wilson had disappeared when Captain Payne arrived, to do an article and evidence recovery search to detect any objects with a fresh human scent. The dog found a small canister containing alprazolam in this area.

The investigators also searched Wilson’s house. In the laundry room hidden behind an appliance, the officers found a set of scales of the type commonly used to weigh out drugs. In addition, $1,050 in cash was found between the mattress and the box spring of the bed. The drug dog also alerted to the closet and the side of the bed where most of the money was found. An initial search of the bathroom produced nothing; however, after Wilson used the bathroom, the lead investigator searched the bathroom a second time and found $300 stashed under toilet paper in a trash can he had searched earlier. At trial, Wilson admitted that he had hidden the cash in the bathroom trash can so that the investigators would not find it on him.

In light of this evidence linking Wilson to the drugs, there was evidence other than mere presence and equal access linking Wilson to the contraband. “Accordingly, the evidence, although circumstantial, was sufficient to allow the case to go to the jury and to authorize the jury’s finding that [Wilson] was guilty, beyond a reasonable doubt, of possession of’ both the marijuana and the alprazolam. Noble v. State, supra at 472.

2. Wilson maintains that the trial court committed reversible error by admitting into evidence drawings of the area around his residence done by two of the investigating officers over his objection that they were prejudicial. On appeal, he also argues that the drawings lack probative value because they were not drawn to scale and did not reflect the distance between his house and the area where the drugs were found and were, therefore, prejudicial. We find no merit to this enumeration of error.

The Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it. Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court.

(Citation and punctuation omitted.) Chesser v. State.

The officers used the drawings to indicate where, in relation to Wilson’s residence, the drugs were found. While the drawings may not have been to scale, as the officers acknowledged on the stand, the officers, when asked by either the State or Wilson, gave estimates of the distances between Wilson’s house and the areas where various articles of evidence were found. Wilson’s own attorney used the diagrams to cross-examine the officers and offered into evidence photographs of the areas indicated on the drawings. Under these circumstances, we are satisfied that the trial court did not abuse its discretion in admitting these drawings into evidence.

3. In his next enumeration of error, Wilson contends that the trial court erred in admitting into evidence test results and reports done on the suspected controlled substances; he argues that because the individuals who did the testing testified as to the contents of the reports, the reports were cumulative and admitting them into evidence placed undue weight and emphasis on them. Again, we disagree.

The test reports to which Wilson objects were the analysis reports done on the bags of marijuana found behind his house. The analysis reports contained the results of the three required tests in the test protocol: a microscopic examination, a Duquenois-Levine chemical test, and a Fast Blue B chemical test. These marijuana analysis reports are

not subject to the objection[ ] made. “As a writing in proof of an act or transaction, the instant report [s] [were] admissible as direct evidence of the manner in which a scientific test was conducted and of the results thereby obtained. The proscription on the jury’s possession of 'written testimony’ does not extend to documents which are themselves relevant and admissible as original documentary evidence in a case.”

(Citations omitted.) Whiteley v. State. See also Starks v. State; Bry ant v. State; Munda v. State. Accordingly, admission of these reports was not error.

Decided July 26, 2002.

Timothy J. Crouch, for appellant.

Bryant G. Speed II, District Attorney, Martha P. Jacobs, Fred R. Simpson, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

         Bohannon v. State, 208 Ga. App. 576 (1) (431 SE2d 149) (1993).

        Noble v. State, 225 Ga. App. 470, 471 (484 SE2d 78) (1997).

        Bennett v. State, 202 Ga. App. 699 (415 SE2d 310) (1992).

        Smith v. State, 210 Ga. App. 451, 453 (4) (a) (436 SE2d 562) (1993).

        Martin v. State, 201 Ga. App. 716, 718 (1) (b) (411 SE2d 910) (1991).

        Blitch v. State, 188 Ga. App. 487, 488 (373 SE2d 227) (1988).

        Chesser v. State, 228 Ga. App. 164, 166 (1) (b) (491 SE2d 213) (1997).

        Whiteley v. State, 188 Ga. App. 129, 132 (3) (372 SE2d 296) (1988).

        Starks v. State, 240 Ga. App. 346, 350 (4) (523 SE2d 397) (1999).

        Bryant v. State, 270 Ga. 266, 270-271 (3) (507 SE2d 451) (1998).

        Munda v. State, 172 Ga. App. 857, 860 (2) (324 SE2d 799) (1984).


text:
    A02A1450.
    In the Interest of J. M. et al., children.
    (569 SE2d 628)
   Blackburn, Chief Judge.

Following the juvenile court’s extension of an order granting temporary custody of J. M. and J. W. to the Department of Family & Children Services (DFACS), the children’s mother appeals, contending that: (1) DFACS failed to file a properly verified petition for extension of custody and (2) the evidence was insufficient to support the extension of custody. OCGA § 15-11-58 (n). As DFACS admits that it provided no evidence that any of the reasons for the initial removal of the children from appellant’s home existed at the time of the extension hearing, we are constrained to reverse this case.

This is the second appearance of this case before us. We have previously reversed the juvenile court’s termination of appellant’s parental rights for lack of clear and convincing evidence that the continued relationship of appellant with the children would likely cause serious physical, mental, emotional, or moral harm. In the Interest of J. M. In that case, we set forth the underlying facts of this matter as follows:

In October 1993 when J. W. and J. M. were three and five years old respectively, DFACS removed the children from the care of [appellant] on the grounds that she was not providing primary care and supervision, that there was alcohol use and domestic violence in the home, and that she frequently left the children in the care of others with her whereabouts unknown. Over the next seven years DFACS created ten reunification plans, requiring [appellant] to maintain her mental health, to maintain her parent-child bond with the children, to maintain a safe and sanitary home, to remain alcohol and drug free, and to demonstrate appropriate parenting skills. She failed to maintain a safe and sanitary home, failed to display appropriate parenting skills, and twice tested positive for drugs. She generally met the other two plan goals, maintaining fairly regular contact with the children except when incarcerated (once incarcerated for a period of nine months) and meeting her mental health needs. Evidence showed that during a 76-day period when she was allowed temporary physical custody of J. M., she (1) permitted him without excuse to miss nine days of school (he had missed only one day before this), (2) was twice incarcerated for a total of eleven days, and (3) was confined for five days to a psychiatric ward for manic depression. Over the years she maintained irregular contact with DFACS, exhibited irrational behavior, threatened caseworkers, and was arrested or convicted at various times for distributing obscene material, for stalking, for prostitution, for criminal trespass, and for obstructing an officer. In October 2000, the juvenile court held a hearing to consider a petition to terminate her rights, which petition was granted.

Id. at 380-381.

Subsequent to our reversal of the termination of appellant’s parental rights in this prior case, DFACS filed a petition with the juvenile court to extend temporary custody of appellant’s children. After a hearing, the juvenile court determined that J. M. and J. W. continued to be deprived and extended DFACS’ custody over them. The children’s mother appeals this ruling.

At the time of the hearing to extend temporary custody held on December 5, 2001, a nonreunification case plan remained in effect for appellant and her children. DFACS was providing no services to appellant other than visitation, and there were no plans to change appellant’s case plan goals to reunification. From the time of the termination hearing, almost a year earlier, DFACS had not taken any steps to monitor appellant.

During the hearing, Sonya Ash, the caseworker assigned to appellant’s case since October 2000, testified that appellant’s behavior had been erratic in September, October, and November 2001. Ash explained that appellant had been calling her and other DFACS officers repeatedly about her children. In September 2001, appellant called Ash at her home, complained about her case, and then informed Ash that she had her phone number, she knew where she lived, and she knew that she had a son. In addition, appellant repeatedly called the homes where her children had been placed. At one point, appellant showed up at the group home where one child had been staying and masqueraded as a social worker seeking information about the home. Appellant’s apparent intent was to visit her son in contravention of the home’s policies. Ash farther testified that this child’s placement in a group home had worked out fine until appellant started visiting him. Ash, however, never testified what these problems were, and we have no record of them to review.

Ash testified that, as a result of the nonreunification plan, DFACS had not attempted to gather any evidence since October 2000 to determine whether appellant had continued to use alcohol, be involved in acts of domestic violence, or leave the children with inadequate supervision. Ash testified that, once DFACS issues a nonreunification plan, its policy is to discontinue working with the parent and cease all investigations of that parent’s living environment. As such, Ash admitted that DFACS had no evidence on which it could state that any of these problems continued to exist. Ash did maintain, however, that appellant exhibited erratic, aggressive behavior by calling constantly to inquire about her children.

When asked to describe any changes in appellant’s behavior since the time of the prior termination hearing, Ash responded: “She seems a little bit more aggressive since the appeal was granted. She wants her children back with her. And she makes that very plainly clear to everybody in our Agency and State office and anyone else who will listen to her case.”

With regard to appellant’s mental health, the record shows that DFACS asked appellant to submit to a psychological test prior to the hearing, but she refused to do so unless the test was administered by her own psychiatrist. During the hearing, however, appellant admitted that she has bipolar mood disorder and that it is a permanent illness. She continues to seek treatment for this problem, as she has throughout the time that her children have been in DFACS’ custody.

During her testimony, appellant admitted that she had begun investigating individuals involved in her case, including DFACS workers and the juvenile court judge presiding over her case. Appellant explained that she was learning to investigate people in order to “find [her] children if [she] never could see them again.”

Based on this evidence, the trial court determined that the children continued to be deprived and extended DFACS’ temporary custody over them.

“On appeal from a juvenile court’s order finding deprivation, we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the [children were] deprived.” (Punctuation omitted.) In the Interest of M. L. C. We neither weigh evidence nor determine the credibility of witnesses. In the Interest of C. C.

Decided July 26, 2002.

Carter & Richbourg, Joseph I. Carter, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Simpson & Cross, Melanie Barbee-Cross, for appellee.

Pursuant to OCGA § 15-11-58 (n) (3), an extension of custody in cases such as this must be “necessary to accomplish the purposes of the order extended.” The evidence provided at the extension hearing was insufficient to prove such necessity because DFACS, by its own admission, had wholly failed to gather any evidence since the termination hearing over a year earlier. Despite this Court’s earlier reversal of its actions for lack of evidence, DFACS did nothing to make its case. DFACS’ only claim was that appellant’s behavior was erratic because she constantly called to inquire about her children. Appellant’s zeal to have her children returned, however, is not a ground favoring a finding of deprivation.

Without any evidence of the effect on appellant’s children if they were returned to her care, we have no choice but to reverse the trial court in this case because the evidence simply does not demonstrate that any rational trier of fact could have found by clear and convincing evidence that the children were deprived at the time of the hearing. DFACS’ argument that appellant continued to suffer from bipolar disorder does not alter this fact. “The definition of a deprived child . . . focuses upon the needs of the child regardless of parental fault. The petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.” (Punctuation and emphasis omitted.) In the Interest of D. E. K. See also In the Interest of C. C., supra (evidence insufficient to show deprivation despite mother’s mental health problems).

Judgment reversed.

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

        In the Interest of J. M., 251 Ga. App. 380 (554 SE2d 533) (2001).

        In the Interest of M. L. C, 249 Ga. App. 435, 436 (2) (548 SE2d 137) (2001).

        In the Interest of C. G, 249 Ga. App. 101 (547 SE2d 738) (2001).

        In the Interest of D. E. K, 236 Ga. App. 574, 577 (512 SE2d 690) (1999).


text:
    A02A1645.
    THE STATE v. SCHMIDT.
    (569 SE2d 630)
   Blackburn, Chief Judge.

Following the grant of Roy Schmidt’s motion to suppress the results of his Intoxilyzer 5000 breath test in this DUI prosecution, the State appeals, contending that the trial court improperly found that the State failed to reasonably accommodate Schmidt’s request for an independent blood test. For the reasons set forth below, we affirm.

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Punctuation omitted.) Kittler v. State.

Viewing the evidence in this light, the record shows that, on February 17, 2001, Officer Mark Essex stopped Schmidt for erratic driving. After noticing a strong odor of alcoholic beverages, Officer Essex asked Schmidt to consent to certain field sobriety tests. Schmidt refused the tests. Officer Essex then arrested Schmidt, read his implied consent rights to him, and requested that he submit to a breath test. At that time, Schmidt refused to consent to a breath test and requested an independent blood test. Officer Essex then reread Schmidt’s implied consent rights to him. Schmidt then responded that “he was pretty sure that he had the right to his own test.” Officer Essex then repeated the implied consent rights in order to inform Schmidt that he did have the right to have an independent test if he consented to the State’s breath test. Schmidt still did not consent to the State’s test at that time.

Officer Essex put Schmidt into his patrol car and transported him to the county jail. Once there, Schmidt consented to the State’s breath test. Prior to the test, Schmidt was read his implied consent rights once again. Although the State generally takes two breath samples, Schmidt provided one in order to qualify for the right to a blood test, but refused to provide a second. Following the breath test, Schmidt was charged and jailed. The State made no attempt to allow defendant an independent blood test, and Schmidt did not repeat his request for such test. Schmidt testified that he did not think that he had to do so, and he thought that he had made his desire to have an independent test clear.

As an initial matter, Schmidt’s refusal to provide a second breath sample does not preclude him from his right to an independent blood test. OCGA § 40-6-392 (a) (1) (B) provides, in relevant part:

No more than two sequential series of a total of two adequate breath samples each shall be requested by the state; provided, however, that after an initial test in which the instrument indicates an adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver’s license under Code Sections 40-5-55 and 40-5-67.1.

Thus, refusal to provide the second breath sample does not constitute a refusal to comply with the State’s request to provide a breath sample. Accordingly, because he provided the State with one admissible breath sample, Schmidt retained his right to an independent analysis of his blood.

OCGA § 40-6-392 (a) (3) allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing, and there is a corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right. While it is not the officer’s duty to insure the performance of an independent test, he cannot prevent a defendant from exercising his right to such a test. The statute also states that the justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer. It is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test.

(Citations and punctuation omitted.) State v. Vandervoort. The State has the burden of showing it complied with the requirements of OCGA § 40-6-392 (a) (3). State v. Hughes.

While the State offered the testimony of Officer Essex to dispute Schmidt’s testimony, this created factual issues for resolution by the trial court. The trial court resolved such factual issues adversely to the State’s position. In this case, the trial court determined that the State failed to meet its burden. As stated above, conflict in facts and issues of credibility must be determined by the trier of fact. Kittler, supra. Although Schmidt requested an independent blood test prior to submitting to the State’s breath test, there is no evidence whatsoever that the State attempted to accommodate this request in any way. This case is similar to Chamberlain v. State. In that case, we held:

[A] refusal to give a subsequent sample shall not affect the admissibility of the results of any prior sample. Thus, the fact that [the defendant] failed or refused to provide a second sample, as requested by the State, did not affect the admissibility of the results of the first sample. But the State’s test results were rendered inadmissible when [the defendant] was denied the right to an independent test without justification. After providing a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis on the state-administered breath test, [the defendant] was entitled to the blood test . . . requested. The unjustified failure to provide the test is a violation of the statute and precludes the State from introducing evidence regarding its test.

(Footnote omitted.) Id. at 425.

Here, we can find no error in the trial court’s ruling that the State’s unjustified failure to facilitate the independent blood test requested by Schmidt precludes the State from introducing evidence of the Intoxilyzer 5000 test.

Judgment affirmed.

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

Decided July 26, 2002.

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

Spruell, Taylor & Associates, Billy L. Spruell, Melinda D. Taylor, for appellee.

        Kittler v. State, 234 Ga. App. 120, 122 (3) (506 SE2d 231) (1998).

        State v. Vandervoort, 215 Ga. App. 72-73 (1) (449 SE2d 617) (1994).

        State v. Hughes, 181 Ga. App. 464, 467 (352 SE2d 643) (1987).

        Chamberlain v. State, 246 Ga. App. 423 (541 SE2d 64) (2000).


author: Mikell, Judge.

text:
    A02A0105.
    INTERNATIONAL MAINTENANCE CORPORATION et al. v. INLAND PAPER BOARD & PACKAGING, INC. et al.
    (569 SE2d 865)
   Mikell, Judge.

This is an appeal of the trial court’s dismissal of intervenors International Maintenance Corporation (“IMC”) and National Union Fire Insurance Company (“National Union”) from the underlying personal injury action. The intervenors also appeal the dismissal of two defendants who settled with the plaintiffs. We affirm in part and reverse in part.

The underlying claim arose on January 24, 1996, when a removable steel staircase and platform fell on Jonathan Massey, severing his spinal cord and rendering him paralyzed from the waist down. It is undisputed that Massey was injured in the course of his employment with IMC. IMC was insured by National Union for workers’ compensation claims, subject to a large deductible retained by IMC. The staircase and platform were owned and maintained by Inland Paper Board & Packaging, Inc. (“Inland”), had been designed by Mid-South Engineering Company (“Mid-South”), and had been constructed by Reynolds Industrial Contractors (“Reynolds”). The accident took place at a sawmill owned by Inland, where Massey was engaged in the maintenance and repair of certain equipment. As a result of his accident, Massey received workers’ compensation benefits paid by IMC, his employer, and National Union.

Massey and his wife filed suit alleging personal injury and loss of consortium claims against defendants/appellees Inland, Mid-South, and Reynolds on October 21, 1997. Appellants IMC and National Union intervened in the action pursuant to OCGA § 34-9-11.1 (b), seeking to assert a subrogation lien to recover medical and disability benefits they had paid to Mr. Massey. The Masseys subsequently settled with Mid-South and Reynolds and dismissed their claims against those defendants. Over the objections of IMC and National Union, the trial court approved the dismissal of Mid-South and Reynolds.

Inland moved for summary judgment, and IMC and National Union filed a brief urging the court to grant the motion. Because IMC was contractually obligated to indemnify and provide liability coverage to Inland with regard to maintenance work it performed at Inland’s facility, it was not in IMC’s interest for Mr. and Mrs. Massey to recover damages from Inland. Additionally, a related conflict of interest existed because National Union was both the workers’ compensation carrier for IMC and its liability carrier. Because IMC was obligated to indemnify Inland, National Union was in effect also the liability carrier for Inland through Inland’s agreement with IMC. On the motion of Mr. and Mrs. Massey, the trial court entered an order dismissing the appellants’ intervention and leaving them to prosecute a separate action if they wished to perfect and enforce a subrogation lien. The court expressly stated that IMC and National Union acted wrongfully in joining the effort to defeat the plaintiffs’ recovery and that they abused the privileges granted by OCGA § 34-9-11.1. Mr. and Mrs. Massey subsequently settled their claim against Inland and filed a final dismissal with prejudice on June 25, 2001. The present appeal followed.

Mr. and Mrs. Massey have moved to dismiss IMC and National Union’s appeal. They contend that because the trial court has not issued a judgment or order regarding the enforceability of the appellants’ subrogation lien, IMC and National Union’s appeal is premature. OCGA § 5-6-34 (a) (1). Additionally, the Masseys argue that reversal of the trial court’s orders would leave IMC and National Union in the same position in which they are at present, because they would still be required to prove that Mr. Massey had been fully and completely compensated in order to establish the validity of their lien.

The procedural posture of the litigation is complex, as is the contractual relationship among the intervenors and the three defendants. We will unravel the complexities only to the extent necessary to address the precise issues raised by the enumerated errors.

1. In their first two enumerated errors, IMC and National Union assert that the trial court erred when it granted the plaintiffs’ “motion to strike intervenors’ pleadings, dismissal of intervenors as party to this action and forfeiture of liens,” by its order dated March 5, 2001. It is true that the plaintiff filed a motion and proposed order so denominated, and the trial court’s March order was similarly entitled. But a close reading of the order reveals that it did not grant the motion in full. It struck the pleadings of the intervenors, struck them as parties to the action, and vacated the earlier order allowing the intervention. The effect of granting those three remedies was to dismiss appellants IMC and National Union from the lawsuit. However, the trial judge did not rule that the intervenors had forfeited their subrogation lien. In fact, the March order expressly stated that the intervenors could enforce “whatever lien they may have” in a separate action.

Was the dismissal proper? We sympathize with the trial court’s finding that the actions of the intervenors during the litigation were “blatantly egregious” and “fundamentally wrong.” The Masseys’ efforts to secure a complete and adequate recovery were hindered by the intervenors because of their conflicts of interest. The trial court attempted a reasonable remedy for the awkward situation resulting from intervention by parties whose interests did not coincide with those of the plaintiffs. However, we do not think that the remedy chosen, dismissal and acknowledgment of a right to bring a separate action, is an acceptable one in view of the legislature’s grant to employers and insurance companies of an absolute right to intervene in order to enforce the subrogation lien.

The statute establishing the lien, OCGA § 34-9-11.1, is modified by the general intervention statute, OCGA § 9-11-24, which in subsection (c) requires a motion even when the intervention is a statutory right. A trial court would seem to have no discretion when ruling on such a motion, provided that the employer or insurer has met the statutory prerequisites, e.g., fully or partially paid workers’ compensation benefits because of an injury or death “caused under circumstances” which created the alleged legal liability for which the worker is suing. OCGA § 34-9-11.1 (a), (b); Payne v. Dundee Mills, 235 Ga. App. 514, 515 (1) (510 SE2d 67) (1998).

Neither the workers’ compensation statutes nor the general intervention statute gives specific guidance about what litigation tactics are permissible as an intervenor strives to protect its lien. In the case at bar, IMC and National Union filed briefs supporting a motion for summary judgment by defendant Inland. Case law allows an intervenor to file “any pleading in the case that original parties could have filed.” (Citation omitted.) Woodward v. Lawson, 225 Ga. 261, 262 (1) (167 SE2d 660) (1969), cert. denied, 396 U. S. 889 (90 SC 175, 24 LE2d 163) (1969). Although a brief is not a pleading, the reasoning behind the rule in.Woodward would seem to allow an intervenor to file whatever briefs, evidence, or other papers it chooses.

An intervenor’s choice of pleadings or argument may on occasion conflict with a plaintiff’s choice. An intervenor may have a financial incentive to limit the amount of a plaintiff’s recovery to the sum paid as workers’ compensation. An intervenor may choose discovery tactics different from those of a plaintiff or may attempt to apportion blame, as in the case at bar, among multiple defendants in a significantly different manner from that preferred by the plaintiff.

A trial court’s ability to referee such disagreements and conflicts will have to be decided on a case-by-case basis. In the case at bar, the motion to intervene asked that the intervention be “subject to” an order that “the plaintiffs must do nothing at the trial to prejudice the intervenors’ lien.” However, the order permitting intervention was silent on that point. In one reported case, a trial court approved a consent order including a provision that the plaintiff would do nothing at trial to prejudice the lien, but the point was not raised on appeal. Sommers v. State Compensation Ins. Fund, 229 Ga. App. 352, 354 (4) (a) (494 SE2d 82) (1997). The case at bar seems to be the first to address the possibility that intervenors might on occasion do something to prejudice the plaintiff’s recovery. Such cases will probably be rare as it would seem to be in the best interests of lienholders to maximize a plaintiff’s recovery to better their chances of proving that a claimant has been fully and completely compensated. Moreover, conflicts between plaintiffs and intervenors can be minimized by the use of a special verdict in the trial of the plaintiff’s case-in-chief and the severance of the lien’s enforceability for a later nonjury trial. See Sommers, supra.

Intervention under OCGA § 34-9-11.1 gives the intervenors rights against the defendants and the plaintiffs which are analogous to cross-claims. After the plaintiffs’ settlement with the defendants and the approval of their dismissals by the trial court, the claims of the intervenors against the plaintiffs remained for adjudication. On remand, the issue will be whether the total of the settlements fully and completely compensated the employee. See generally Liberty Mut. Ins. Co. v. Johnson, 244 Ga. App. 338 (535 SE2d 511) (2000); Sommers, supra.

2. Enumerated errors 3 and 4 both assert that the trial court erred when it approved the dismissals of defendants Mid-South and Reynolds. The court’s approval was, of course, required. Although a plaintiff may dismiss all of its causes of action at any time prior to verdict, without permission, under OCGA § 9-11-41 (a), dismissing fewer than all defendants is considered to be “dropping” a party and requires the court’s permission. OCGA § 9-11-21; Flemister v. Hopko, 230 Ga. App. 93 (1) (495 SE2d 342) (1998). The trial court approved the dismissals by an order dated January 26, 2001.

OCGA § 34-9-11.1 allows intervention, but it does not take away a plaintiff’s power generally to direct his or her lawsuit against the alleged tortfeasors. The Masseys had the right to settle with one or more defendants. The trial court did not abuse its discretion by approving the dismissals, nor is there any authority requiring the proceeds to be placed in a constructive trust as requested by IMC and National Union. Rowland v. Dept. of Admin. Svcs., 219 Ga. App. 899 (466 SE2d 923) (1996), does not support the position of the appellants.

The intervenors/appellants argue that a recent decision of our Supreme Court, answering a certified question from the United States Court of Appeals for the Eleventh Circuit, requires us to leave Mid-South and Reynolds as parties to the lawsuit so that the intervenors may pursue a subrogation claim against them. Ga. Elec. Membership Corp. v. Hi-Ranger, Inc., 275 Ga. 197 (563 SE2d 841) (2002). To be sure, Di-Ranger did reach the result desired by the intervenors; a workers’ compensation payor was allowed to maintain a suit against an alleged tortfeasor even after the employee settled his claim against the tortfeasor and dismissed his case. Moreover, the Supreme Court ruled that, under the facts of that case, the employee had waived his right to insist on proof of full and complete compensation prior to the enforcement of the lien. Id.

But in Di-Ranger, the injured employee and his employer, who had paid benefits and hence was similarly situated to the insurer in the case at bar, had filed suit jointly against the allegedly responsible third party. The Supreme Court analyzed the case under OCGA § 34-9-11.1 (c), a subsection whose language differs significantly from the subsection applicable here, OCGA § 34-9-11.1 (b). Subsection (c) provides that the employer/insurer may “assert the employee’s cause of action in tort.” Thus, the employer/insurer may sue whomever it alleges is responsible, and its lawsuit is, under the holding of Di-Ranger, not defeated by a settlement between the employee and the defendants or defendants. But subsection (b) gives an employer/ insurer not the employee’s cause of action but merely a right to intervene in the employee’s lawsuit “to protect and enforce [its] lien.” Thus, the General Assembly, by choosing quite different language for the two subsections, seems to have intended to give an employer/ insurer a broader opportunity to recover its payments when the employee does not file suit on his own, as provided in subsection (c), and more narrow opportunities for recovery when the employee takes the initiative and sues, as provided in subsection (b).

When a settlement is reached or a judgment is entered in a suit governed by OCGA § 34-9-11.1 (b), the lien attaches to the recovery, “that is, to the money now in the hands of the injured employee.” Rowland, supra at 901; accord Powell v. Daniels Constr. & Demolition, 232 Ga. App. 422, 424 (3) (501 SE2d 578) (1998). After the employee has settled with a defendant, and the lien has attached to the proceeds, there is no longer any purpose for intervention. An employer/insurer cannot continue to pursue a claim against that defendant when the intervention was pursuant to subsection (b).

Decided June 26, 2002

Reconsideration denied July 29, 2002

L. Lee Bennett, Jr., for appellants.

Smith, Price & Wright, Sidney P. Wright, Weinberg, Wheeler, Hudgins, Gunn & Dial, Earl W. Gunn, Ashley P. Nichols, Goldner, Sommers, Scrudder & Bass, Benjamin D. Ladner, Aaron J. Aberson, Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Davidson & Strain, William E. Davidson, Jr., John M. Strain, Duncan & Mangiafico, Edgar S. Mangiafico, Jr., for appellees.

A different result would occur, under Hi-Ranger, if an action was brought under subsection (c). Likewise, a different result might obtain in a case where an employee settled with a tortfeasor without any lawsuit being brought. See, e.g., Rowland, supra. As explained by Chief Justice Fletcher in Hi-Ranger, subsection (b) “[i]n practice . . . requires the employer to assert its lien against the employee after the employee has recovered a judgment or settled his claim. The burden is then on the employer to establish that the employee has been fully and completely compensated.” (Footnotes omitted.) 275 Ga. at 198 (2). Therefore, the trial court did not err in approving the plaintiffs’ dismissals of Mid-South and Reynolds from the lawsuit.

3. Mr. and Mrs. Massey have moved to dismiss the appeal. Because the plaintiffs had settled with all defendants, the dismissal of the intervenors meant that the case was no longer pending below. Therefore, the March 5, 2001 order was final, and a direct appeal was proper. Cf. Burruss v. Ferdinand, 245 Ga. App. 203 (1) (536 SE2d 555) (2000) (denial of intervention can be a final judgment). The motion to dismiss is denied.

Judgment affirmed in part and reversed in part and remanded.

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

       There is some dispute as to whether benefits were actually paid by National Union, as there was a $500,000 deductible that IMC would have had to satisfy first. The dispute is not material to this appeal.

       We venture no opinion about control disputes in the event an employer or insurer filed suit after one year, and the claimant intervened pursuant to OCGA § 34-9-11.1 (c).


author: POPE, Presiding Judge. Barnes, Judge,

text:
    A02A0220.
    POWELL v. AMIN.
    (569 SE2d 582)
   POPE, Presiding Judge.

Venus Arnold Powell filed a medical malpractice action against Dr. Mahendra Amin, alleging that he was negligent in clamping her ureter during a hysterectomy, resulting in significant injuries that required two additional surgeries to repair. After two days of testimony, the jury returned a defense verdict. Powell appeals following the entry of judgment on that verdict. We reverse.

1. Powell argues that the trial court erred in refusing to disqualify juror Jimmy Atkinson. Atkinson is a pharmacist who said that he knew Amin through prescription call-ins to his pharmacy. Powell’s attorney asked him if, in view of “the close relationship that a pharmacist has with the medical community,” he could “be fair and impartial to both sides realizing that your livelihood depends to a certain extent on the medical profession?” He responded, “I guess. I don’t know. I could,” although he acknowledged that it “probably” would be difficult for him. Atkinson also stated that if he were Powell, he probably would not want himself sitting as a juror on the case. Powell’s counsel then moved to disqualify Atkinson for cause.

In response, the trial court informed the jury that their responsibility, if selected, was to base their verdict solely and exclusively upon the evidence and nothing else. He then asked Atkinson, “Does the fact that you practice pharmacy and fill prescriptions for the — which have been prescribed by this Defendant, will that prevent you from basing your verdict strictly and exclusively upon the evidence?” Atkinson replied, “No.”

The Supreme Court of Georgia recently clarified the duty of a trial judge in cases of juror disqualification, by noting that the judge must ask more than a “talismanic question” to evaluate the juror, but must also investigate through more detailed voir dire:

[W]hen a prospective juror has a relationship with a party to the case that is either close or subordinate, or one that suggests bias, the trial court must do more than “rehabilitate” the juror through the use of any talismanic question. The court is statutorily bound to conduct voir dire adequate to the situation, whether by questions of its own or through those asked by counsel.

Kim v. Walls, 275 Ga. 177, 178 (563 SE2d 847) (2002). In that case, the Supreme Court upheld this Court’s determination that the trial court had manifestly abused its discretion in refusing to disqualify a juror in a medical malpractice case, where the juror worked as a nurse alongside the defendant doctor in a local emergency room.

Here, Atkinson made it clear that he derived a portion of his income from prescription referrals from Amin’s office and as a result he was reluctant to serve on the jury. But in response, the trial judge only asked the “talismanic question” of whether he thought he could base his decision solely and exclusively upon the evidence. We find that this response was inadequate. Although Atkinson’s relationship with Amin did not “necessarily or categorically requir[e] [his] exclusion from the jury,” the relationship did require “the trial court to conduct voir dire of sufficient scope and depth to ascertain any partiality.” Kim v. Walls, 275 Ga. at 179.

Accordingly, we hold that the trial court abused its discretion in qualifying this juror without conducting further voir dire. Therefore, the judgment must be reversed and the case remanded for a new trial.

2. Powell also asserts that the trial court erred in failing to disqualify Anna Burch from the jury panel. During voir dire, Burch revealed that she was Amin’s patient, and that he had delivered her children. Powell’s attorney then asked her whether she could be fair and impartial given her doctor-patient relationship. She replied, “I could be fair; but, I mean, it’s going to be hard for me.”

At the close of voir dire, Powell’s attorney moved to disqualify Burch on the ground of her current doctor-patient relationship with Amin. Amin’s attorney argued that the law in Georgia was that a doctor-patient relationship does not disqualify a juror. Powell’s attorney countered that it was within the judge’s discretion to disqualify Burch. The trial court denied the disqualification request, stating, “I’m going to leave that to a future appellate decision. I’m going to follow the law.”

Powell asserts that this statement indicates that the trial judge never understood that he had discretion in the matter, but rather believed that he was bound by law not to excuse a juror on the basis of a doctor-patient relationship. But our reading of the colloquy does not support this interpretation. When Powell’s attorney first raised the challenge to Burch, the trial court stated that the issue was not simply the existence of the doctor-patient relationship, but whether the juror could be fair and impartial, and he offered to allow the attorney further voir dire on the issue. The attorney declined.

These actions demonstrate that the trial judge correctly understood the law and his discretion in the matter. Our Supreme Court has refused to establish a per se rule of disqualification for jurors who were current patients of defendant doctors in medical malpractice actions, but rather left the ruling up to the discretion of the trial court. Cohen v. Baxter, 267 Ga. 422, 423 (1) (479 SE2d 746) (1997).

Nor do we find any manifest abuse in the trial court’s exercise of discretion in connection with Burch’s disqualification. In Kim v. Walls, the Supreme Court based its decision, in part, on the trial court’s failure to allow the plaintiff’s counsel to fully question the juror after she said that her relationship with the doctor would “probably” affect her view of who should prevail and that she did not view the parties as being on an equal footing: “Because the trial court failed to allow plaintiff’s counsel to develop competent evidence as to bias as required by statute, and itself conducted only a cursory, inadequate rehabilitation of the juror, we hold that the court abused its broad discretion in qualifying the juror. [Cit.]” 275 Ga. at 179.

Here, in contrast, the trial court was willing to allow Powell’s attorney to conduct further voir dire to establish the basis for his objection, but the attorney declined. He indicated that he had already questioned her. But a review of his prior voir dire shows that the attorney did little more than ask the “talismanic question” of juror Burch. He made no effort, for example, to question her on the length of her doctor-patient relationship with Amin, the frequency of her contact, the age of her children or any other matters that could have provided a factual basis for his argument that she should be excused for cause. Although the concurrence implies that Powell’s counsel was merely given the opportunity to raise the “talismanic question” for a fourth time, the trial court, in fact, placed no limits on the voir dire. Thus, it was the attorney’s actions, not the trial judge’s, that limited the voir dire of this juror. Under these circumstances, we cannot say that the trial court abused its discretion.

We note that Burch also told counsel that she worked in the same hospital as Amin and had regular contact with him and his patients. And further voir dire questioning revealed that she had gone to high school with one of Amin’s attorneys and had used him personally as a lawyer. She stated, however, that these relationships would not affect her ability to be fair and impartial, although it would be hard and that she would “try [her] best.” Because Powell’s counsel moved to disqualify only upon the ground of the doctor-patient relationship we cannot address the issue of whether disqualification should have been allowed upon these other grounds or upon a combination of all the grounds. See Green v. Wilcox, 206 Ga. App. 192 (424 SE2d 801) (1992). In this case the voir dire was directed at the jury panel as a whole, with various jurors responding depending upon the questions asked. Under such circumstances, it is the responsibility of counsel to determine which jurors may have multiple grounds upon which to base disqualification and to bring those grounds to the attention of the judge.

3. Powell next asserts that the trial court erred in admitting into evidence the consent form she signed prior to surgery. She asserts that because there was no issue as to whether she had consented to the surgery and because consent cannot be a defense to malpractice, there was no legitimate basis for admitting the form into evidence.

“Admission of evidence is committed to the sound discretion of the trial court, whose determination shall not be disturbed on appeal unless it amounts to an abuse of discretion.” (Citation and punctuation omitted.) Chambers v. Gwinnett Community Hosp., 253 Ga. App. 25, 26 (1) (557 SE2d 412) (2001).

Powell moved in limine to exclude the consent form from evidence, and the trial court granted the motion, acknowledging Powell’s concern that the jury might improperly view the form as an assumption of the risk of the surgery. Nevertheless, the trial court noted that the document could be admitted for some other purpose depending upon the testimony. In particular, the court noted that the form could be admitted if Powell denied that she was informed of any risk as required by the informed consent laws. OCGA § 31-9-1 et seq.

During later cross-examination, Amin’s counsel asked if, before the hysterectomy, Amin’s office had explained that complications could arise during surgery. Powell replied, “No, sir.” The trial court then allowed Amin’s attorney to use the form, over objection, to rebut Powell’s denial, but cautioned the attorney that the court “would not tolerate any argument on behalf of the Defendants that this excuses liability.” Powell’s counsel asked for limiting instructions. The trial court agreed but gave no limiting instructions at that time.

When cross-examination resumed, Powell again stated that Amin’s office had not informed her that there could be complications during the course of the surgery. In response, Amin’s attorney read pertinent portions of the consent form and obtained Powell’s confirmation that she had signed the document. Powell’s counsel did not reiterate the request for limiting instructions at that time.

The issue next arose during the closing argument by Amin’s attorney when he read the risks listed in the consent form and stated, “That’s in that document for a reason, Ladies and Gentlemen, because it happens.” Powell’s counsel objected, and at that point the trial court instructed the jury as follows:

Members of the Jury, this portion of [Amin’s attorney’s] argument regarding the consent which has been admitted into evidence requires me to give you this instruction. Before performing a proposed surgery, the law requires a physician to obtain from his patient an informed consent to the surgery which the physician proposes to perform upon the patient. That informed consent was obtained by the Defendant in this case and has been admitted into evidence in this case. I instruct you, however, that such informed consent is not a defense to medical malpractice by a physician and does not relieve a physician or surgeon from the duty to exercise that degree of care or skill ordinarily employed by the profession generally under similar conditions and like surrounding circumstances.

Amin’s attorney then proceeded with his argument, stating again, without objection, “This information is in here because it’s a risk and because it happens.”

Later, after the final charge to the jury, Powell’s attorney objected to the trial court’s limiting instruction on the ground that it was insufficient to limit the use of the consent form to a proper purpose. Powell explains this objection on appeal by noting that while the trial court’s instruction told the jury that the form could not be used to negate liability, it did not tell them the purpose for which the form could be used.

We find no abuse of discretion. Even though the consent form was not relevant to the issue of liability in the case, it was admissible to impeach Powell on her testimony that she had not been informed that there was any risk of complications connected to the surgery. See Austin v. Kaufman, 203 Ga. App. 704, 708 (4) (417 SE2d 660) (1992) (evidence should be admitted for any legitimate purpose even if it is inadmissible for another purpose). And the trial court’s limiting instruction made it clear that the consent form did not affect the issue of Amin’s liability. While the better practice would certainly be to explain to the jury the limited purpose for which the evidence was being admitted, we cannot say that the instruction was harmful error, especially in light of the trial court’s later instructions on negligence and malpractice.

4. Powell further argues that the trial court erred in failing to give her requested charge stating “that a doctor must exercise the same degree of care whether he practices in a small town or a large city.” She asserts that without the charge the jury could have somehow assumed that different standards applied to their local doctors than to other doctors. We disagree.

The trial court charged the jury that a doctor “must bring to the exercise of his profession a reasonable degree of care and skill.” The court further charged the jury that the appropriate standard, “when applied to the facts and circumstances of any particular case, must be such degree of care and skill as under similar circumstances and like surrounding circumstances is ordinarily employed by the profession generally.” This charge tracked the pattern jury instructions and was a complete and correct statement of the appropriate standard of care. See Suggested Pattern Jury Instructions, Vol. I: Civil Cases (3rd ed. rev. 1996), pp. 251-252. The court’s instructions also covered the principle addressed by the requested charge, and therefore no additional instruction was required:

It is axiomatic that a jury charge need not be given in the exact language requested if the charge as given clearly covers the circumstances of the case. All that is necessary, provided the requested charge accurately states the relevant principles of law, is that these principles be fairly given to the jury in the general charge. When it can be determined that the charge actually given conveys correctly the intent of the law and is so framed as to be applied with understanding by the jury to the fact situation, denial of a request for a specific charge is not reversible error.

(Citation and punctuation omitted.) Little Rapids Corp. v. McCamy, 218 Ga. App. 111, 116 (3) (460 SE2d 800) (1995). Accordingly, we find no error.

While this Court approved the use of a similar charge in Packer v. Gill, 193 Ga. App. 388, 390 (3) (388 SE2d 338) (1989), that case is distinguishable. There, the defendant doctor objected to the charge as incomplete, asserting that the trial court had never defined the parameters for the appropriate standard of care. Because we found that the full charge correctly set forth the required parameters, we found no error. Id. Packer did not hold, as Powell suggests, that the charge must be given in every case of malpractice in a small community.

Judgment reversed.

Ruffin, J., concurs. Barnes, J., concurs specially.

Barnes, Judge,

concurring specially.

I fully concur in the result in this case, and in Divisions 1, 3, and 4. I write separately because the trial court should have excused juror Burch for cause. Unlike the situation in Kim v. Walls, 275 Ga. 177 (563 SE2d 847) (2002), in which the trial court would not allow the plaintiff’s counsel to further question a juror who was a nurse working with the defendant doctor, the trial court in this case merely offered Powell the opportunity to ask for the fourth time whether this juror, a current patient of the defendant’s, could be fair. Since the juror had already answered that question three times regarding her various relationships with the doctor, Powell’s decision not to ask yet again does not constitute failure to conduct further voir dire to establish the basis for her objection.

In addition to the fact that the defendant in this case delivered the juror’s children, she was a current patient of the defendant’s. Powell moved to strike her for cause because she was a current patient and submitted that “a current patient of a doctor cannot be fair and impartial in a case like this.” The trial court pointed out that the issue was not the doctor-patient relationship itself, but whether the juror could be fair and impartial without being influenced by the fact that she was the defendant’s patient. The trial court then offered Powell the opportunity to question the juror again on that issue, to which Powell replied, “I think we’ve already asked [her] that. . . .” The trial court responded that Powell could ask again, to which she replied, “I think we’ve already asked them one [time].”

Defense counsel pointed out that the relationship itself did not disqualify the juror, and Powell noted that the decision was within the court’s discretion. The trial court replied, “I’m going to leave that for a future appellate decision. I’m going to follow the law,” and did not excuse the juror for cause.

The juror’s earlier responses to whether she could be fair are mostly equivocal at best. Upon learning that the juror was a current patient of the defendant’s, Powell asked, “Ms. Burch, realizing all these relationships that you’ve told us about previously and the fact that you are currently a patient, do you feel that you could be fair and impartial in this case?” The juror replied, “All I can say is I’ll try my best to.” This response came after Powell had the following exchange with the juror, who was a nurse at the hospital perinatal department where she had contact with the defendant:

POWELL: Realizing that relationship and that you’re going to be seeing Dr. Amin after this is over with, would your relationship with him affect your ability to be fair and impartial in this case?
JUROR: I. . . .
POWELL: Would you feel uncomfortable sitting on the case?
JUROR: (Nods head up and down.)
POWELL: Would you rather not sit on the case?
JUROR: Yes, sir.
POWELL: I’m going to ask the question, try to, what Judge Blount asked you. Could you take the evidence that is presented in this case and the law that’s going to be given to you by Judge Blount and render a fair and impartial verdict based on strictly the evidence and the law, not giving any consideration to any outside influence such as your relationship with Dr. Amin?
JUROR: I could be fair.

In the next exchange, after the juror said that the defendant had delivered her children, Powell asked, “Realizing that he delivered one of your children and realizing the close relationship that exists there between doctor and mom, could you be fair and impartial?” The juror responded, “I could be fair; but, I mean, it’s going to be hard for me.”

Decided July 15, 2002

Reconsideration denied July 29, 2002

Ronald W. Hallman, Berrien L. Sutton, James D. Hudson, for appellant.

Coleman, Talley, Newbern, Kurrie, Preston & Holland, Wade H. Coleman, Gregory T. Talley, Keith H. Solomon, for appellee.

In exercising its broad discretion as to strikes for cause, a trial court should consider the peculiar nature of the relationship between an obstetrician and his pregnant patient. It is difficult to imagine many more intimate relationships than this one. Further, this defendant apparently delivered more than one child for this juror, who therefore thought enough of him to return to him for the delivery. Based on the juror’s equivocal responses about her ability to be fair in this situation, the trial court abused its discretion in declining to strike this juror from the panel for cause.

       This Court’s opinion stated:
      Many judges on this court have served as trial judges and wholeheartedly agree with the principle that trial judges must have significant discretion in deciding whether to excuse jurors for cause. Just as wholeheartedly, we disagree with the way that the “rehabilitation” question has become something of a talisman relied upon by trial and appellate judges to justify retaining biased jurors. Especially when the better practice is forjudges simply to use their discretion to remove such partial jurors, even when the question of a particular juror’s impartiality is a very close call

        Walls v. Kim, 250 Ga. App. 259-260 (549 SE2d 797) (2001).