text:
    A95A1276.
    POWELL et al. v. LEWIS.
    (462 SE2d 460)
   McMurray, Presiding Judge.

Rometta Powell brought an action against Lela Lewis, d/b/a Pro-Care Dental Services, P.C., alleging that Lewis fraudulently duped her into executing a “stockholders agreement” which diminished her rights as a debtor, stockholder and employee of Pro-Care Dental Services, P.C. (“Pro-Care”), a professional corporation “organized for the purpose of practicing the profession of Dentistry.” Powell claims that Lewis, president and stockholder of Pro-Care, failed to advise her upon execution of the “stockholders agreement” that the Georgia Secretary of State had administratively dissolved Pro-Care pursuant to OCGA § 14-2-1420 (2) because the corporation had failed to make timely delivery of its annual registration, together with all required fees and penalties, to the Office of the Secretary of State. Powell reasons that this administrative dissolution resulted in a failure of consideration under the “stockholders agreement” and “$10,000.00 in actual damages because she received no payments upon liquidation of the corporation.” Lewis denied the material allegations of the complaint and later moved for summary judgment, based (in part) upon undisputed proof that the Georgia Secretary of State had reinstated the corporation pursuant to OCGA § 14-2-1422 (c).

Decided September 21, 1995.

Richard A. Coleman, for appellants.

Angela C. Chadwick, for appellee.

The trial court granted Lewis’ motion for summary judgment. This appeal followed. Held:

Powell contends that genuine issues of material fact remain “as to whether there was misrepresentation by . . . Lewis.”

“An action for misrepresentation requires proof of five elements, [including proof] ‘ “that the plaintiff sustained the alleged loss and damage as the proximate result of [the fraudulent representations].” (Cit.)’ Eckerd’s Columbia v. Moore, 155 Ga. App. 4, 5 (1) (270 SE2d 249) (1980).” Ekstedt v. Charter Med. Corp., 192 Ga. App. 248 (1) (384 SE2d 276) (1989). In the case sub judice, there is no proof that Powell was injured as a result of Lewis’ alleged cover-up of Pro-Care’s administrative dissolution. On the contrary, it appears to be undisputed that Pro-Care never ceased doing business as a result of the administrative dissolution; that Pro-Care has been properly reinstated as a Georgia professional corporation and that Powell remains a primary shareholder of the corporation. In fact, there appears to be little (if any) chance that adverse consequences ensued as a result of the administrative dissolution because Pro-Care’s reinstatement under OCGA § 14-2-1422 (c) means that the corporation will continue to function “as if the administrative dissolution had never occurred.” OCGA § 14-2-1422 (d). Consequently, since there is no proof that Powell was actually injured as a result of Lewis’ alleged cover-up of Pro-Care’s administrative dissolution, the trial court did not err in granting summary judgment in favor of Lewis. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

       It appears that Powell is a 20 percent stockholder of Pro-Care, holding 100 shares of the corporation’s stock. It also appears that Powell purchased these shares from Pro-Care for $40,000, paying $10,000 in cash and financing the remaining balance through the corporation over a period of ten years. The “stockholders agreement” provides for forgiveness of this ten-year debt in exchange for Powell’s accrued salary as a Pro-Care employee.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A95A1401.
    FOSTER v. THE STATE.
    (462 SE2d 455)
   McMurray, Presiding Judge.

Defendant Daniel Foster, a/k/a Gary Brooks, was charged in an indictment with burglary and giving a false name to a law enforcement officer. The evidence adduced at his jury trial showed that Bill Pouncy of Prattville, Alabama, was staying at the Dollar Inn on North Slappy Boulevard in Albany, Dougherty County, Georgia, on January 25, 1994. At approximately 5:00 a.m., he was awakened when he “heard a lot of noise going on outside the room. Chopping noise. Metal on metal.” Bill Pouncy heard two men talking “about getting into something” and saw a tall, thin man wearing a bill cap walk by the window. Bill Pouncy had observed another man “down on one knee. Had his arm like this. He had a blue shirt on. And he was looking at the door.” This man “turned back and looked directly to [Bill Pouncy]. And then, all of a sudden, this man that had walked away come [sic] back. I saw some white in his clothes.” The noise increased real loud then, as if “two people were doing a job out there.” Bill Pouncy affirmed his impression that “they were definitely working together [.]” Bill Pouncy next heard glass breaking and then, after no more than 30 seconds, “the vehicle that woke me up took off. It had a muffler problem or something. But it took off real fast.” The manager informed him: “ ‘Well, they stole the TV.’ ” Bill Pouncy identified defendant as “the man that I saw kneeling outside the door[.]”

Calvin Roger Walker, the driver of the vehicle, “pled guilty to that [same] burglary” and testified as a witness for the State that “[i]t was both of our ideas . . .” to do this burglary. According to Calvin Walker, it was defendant who “proceeded to go into the room with a screwdriver. Come out with the TV, and got into the truck; and we pulled off.” They traveled about three or four blocks before a police officer “pulled us over on the corner of Cotton and Madison.” Officer James Henry Vick “noticed a TV set sitting in the front seat in between the two of them[.]” Officer Marcus Minix of the City of Albany Police Department assisted Officer Vick in stopping the pickup truck. He overheard defendant identify himself to Officer Vick as “Mr. Gary Brooks.”

In a custodial statement and at trial, defendant “admit[ted] he gave a false name to the officers.” He was afraid because he had a prior conviction for burglary. At trial, defendant denied helping to steal the television, claiming that he had tried to talk Calvin Walker out of it.

The jury found him guilty of both charges. This direct appeal followed, as to “the burglary offense only.” Held-.

1. The evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s determination that defendant is guilty, beyond a reasonable doubt, as a party to the burglary alleged in the indictment. Dennard v. State, 216 Ga. App. 446, 448 (2) (454 SE2d 629). “The [S]tate proved that the [motel room] was entered without authority of the victim[, in this case the owner]. This was sufficient to allow the case to go to the jury for decision, where the defendant did not offer to show that entry was made with the authority of the owner. Hall v. State, [7 Ga. App. 115, 119 (3) (66 SE 390)].” Murphy v. State, 238 Ga. 725, 728 (2), 729 (234 SE2d 911). Defendant’s second enumeration is without merit.

2. Defendant contends in his first enumeration the trial court erred in proceeding on an indictment that allegedly “had not been returned in open court.” However, any valid exception going to the mere form of the indictment was waived by defendant’s failure to urge the defect in a timely, written special demurrer. Dunbar v. State, 209 Ga. App. 97 (2), 98 (432 SE2d 829); OCGA § 17-7-113.

3. In the absence of a written request, the trial court did not err in failing to charge the jury on any (unspecified) lesser offenses included within the indicted offense of burglary. State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354). The third enumeration is without merit.

4. Defendant’s fourth through seventh enumerations are specifications of alleged ineffective assistance of trial counsel. The record contains no motion for new trial. A different attorney was appointed on December 29, 1994, to represent defendant on appeal. The judgment of conviction was signed by the trial court on December 16, 1994, but not entered of record until January 24, 1995. Defendant filed a pro se notice of appeal on December 30, 1994, and appellate counsel filed an additional notice of appeal on January 11, 1995.

“Logically, it would seem that by proceeding with a direct appeal without filing a motion for new trial demanding an evidentiary hearing on the claim of ineffective assistance, defendant would have waived or abandoned this ground for reversal and a new trial. See Maxwell v. State, 262 Ga. 541, 543 (3) (422 SE2d 543) (1992). Nevertheless, we are bound by the whole court decision in King v. State, 208 Ga. App. 77 (2) (430 SE2d 640) (1993) holding the contrary. We therefore [affirm the judgment of the trial court but] remand the case [sub judice] to allow the trial court an opportunity to consider defendant’s claim of ineffective assistance of counsel.” Duitsman v. State, 212 Ga. App. 348, 350 (4) (441 SE2d 888). “We [further] ‘defer the determination of [any] issue of waiver to . . . proceedings on remand. See Gary v. State, 260 Ga. 38 (2) (389 SE2d 218) (1990)’ . . . Black v. State, 261 Ga. 791, 797 (19), 798 (410 SE2d 740). In the event the trial court finds no such waiver upon remand, . . . the trial court is directed to resolve defendant’s claim of ineffective assistance of trial counsel. ... If the trial court finds that defendant’s claim of ineffective assistance of trial counsel is precluded because the issue was not raised ‘at the earliest practical moment,’ then defendant’s right to appeal that finding within 30 days after entry of the trial court’s order is preserved. See Parrish v. State, 194 Ga. App. 760, 762 (4) (391 SE2d 797).” Abernathy v. State, 214 Ga. App. 364, 365 (2), 366 (448 SE2d 30).

Decided September 21, 1995.

David E. Slemons, for appellant.

Britt R. Priddy, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

Judgment affirmed and case remanded with direction.

Andrews and Blackburn, JJ., concur.


text:
    A95A1451.
    WILLIAMS v. THE STATE.
    (462 SE2d 457)
   McMurray, Presiding Judge.

In a jury trial, defendant was found guilty of selling cocaine in violation of Georgia’s Controlled Substances Act. This appeal followed the denial of defendant’s motion for new trial and amended motion for new trial. Held:

1. Defendant asserts the general grounds in his first two enumerations of error, arguing that he was just “ ‘playing a little game’ ” when he and an accomplice entered into an illegal drug transaction with a woman defendant knew to be an undercover law enforcement officer. Defendant indicates that he had no idea the accomplice would consummate the deal by actually delivering cocaine to the undercover officer.

Defendant’s intent in agreeing to sell the undercover officer cocaine, whether real or feigned, is for the jury; and the jury’s finding in this regard will not be set aside unless clearly erroneous. Rigenstrup v. State, 197 Ga. App. 176, 180 (4) (398 SE2d 25). This is so because, “[o]n appeal, the presumption of innocence no longer avails and we view the evidence in a light most favorable to the verdict. Watts v. State, 186 Ga. App. 358 (366 SE2d 849).” Walker v. State, 214 Ga. App. 691, 692 (1), 693 (448 SE2d 924). From this perspective, we find no clear error in the jury’s finding that defendant was a willing participant in an illegal drug transaction. The undercover officer testified that she stopped her unmarked patrol car in a known drug-source area of Savannah, Georgia; that defendant approached the car and that she asked defendant for a quantity of cocaine. The officer testified that defendant then offered to share a sample of his illegal product and that, in doing so, defendant attempted to entice the officer out of her car. The officer explained that, when she refused to leave her undercover patrol car, defendant gave his accomplice the amount of cocaine the officer requested and instructed the accomplice to consummate the transaction. The officer testified that, after the accomplice delivered the cocaine and collected the money, defendant “approached the car [and said] see, I told you it’s good.” This evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of being a party to the sale of cocaine in violation of Georgia’s Controlled Substances Act. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Wrease v. State, 214 Ga. App. 727, 728 (1) (448 SE2d 911).

2. In defendant’s final enumeration, counsel asserts that the trial court “committed harmful, prejudicial and reversible error by sustaining the prosecution’s officious and unduly disruptive objection to defense counsel’s opening statement, and by unjustifiably and sternly berating counsel in the presence of the jury at this most delicate, introductory stage of the trial.” Specifically, counsel argues that “the spanking administered by the trial judge at the very beginning of the trial obviated any and all positive elements of [defendant’s] defense, thereby denying him due process and a fair and impartial hearing.” Counsel also argues that “ ‘[t]he People’ (through the prosecution) and the Judge (‘the smartest lawyer in the courtroom’) had delivered a knock-out punch before the first witness took the stand.” And in conclusion counsel asserts the following: “Sustaining the prosecution’s objections to [defendant’s] opening statement (and, particularly, the imperious and unprofessional manner in which they were sustained) constituted a manifest abuse of the trial judge’s discretion and sabotaged the defense case, resulting in an automatic conviction — clearly a ‘positive injury.’ ”

The relevant portion of opening statements provides as follows: “[DEFENSE COUNSEL]: Good morning, ladies and gentlemen. . . I represent Mr. Jerome Williamsf, the defendant]. Drug cases. They invoke emotion and passion and prejudice in all law-abiding citizens. . . . This is a drug case, but I ask that you try to put aside and put on hold any such passion for the duration of this trial. I expect it will last only one day. . . . The Prosecution will get first shot, and while their case may sound convincing, —

“[STATE’S ATTORNEY]: Your Honor, I’m going to object as [defense] counsel is arguing.

“THE COURT: Limit yourself to what you intend to prove or disprove, sir.

“[DEFENSE COUNSEL]: We just want you to keep one thing in mind. There will be testimony that [defendant] sold drugs to Agent Williams. Keep in mind one question throughout all the testimony. Is it reasonable to believe that [defendant], when he knew that Agent Andrea Williams was a police officer, when he knew this, is it reasonable to believe that he would still sell drugs —

“THE COURT: Would you step up here a minute, sir.

“[DEFENSE COUNSEL]: Yes, sir. . . . (BENCH CONFERENCE)

“THE COURT: Now when I rule, I’m not kidding. You understand?

“[DEFENSE COUNSEL]: Yes, sir.

“THE COURT: Now go ahead and do what I told you. . . . (END OF BENCH CONFERENCE)

“[DEFENSE COUNSEL]: We expect that the evidence will show that [defendant] was aware that she was a police officer, and he did not sell her drugs. We expect the evidence to show that he was pretending, just as she was pretending. It may not sound reasonable right now, but that’s what he was doing. . . . We ask you not to judge him too harshly and consider all the evidence. We’re going to try to tell you everything about this case, give you all the evidence so that you can make an informed decision, an impartial decision. We don’t want you to go back to the jury room and say, why didn’t he ask this question or that question of the witness? . . . Both of us, the State and myself, will try to give you all the evidence you need. Our position is the other fellow sold drugs, my client didn’t, and we think the evidence will show that. . . . Thank you.”

“The trial court has the right and duty to govern the scope of argument by counsel both prior to and after the presentation of evidence. See generally Roland v. State, 161 Ga. App. 197 (3) (291 SE2d 41) (1982); Pilcher v. State, 91 Ga. App. 428 (1) (85 SE2d 618) (1955). The proper range of comment by counsel is a matter within the discretion of the trial court. Sanders v. State, 156 Ga. App. 44 (2) (274 SE2d 88) (1980).” Mathis v. State, 171 Ga. App. 620, 621 (2) (320 SE2d 861). The trial court did not abuse its discretion in the case sub judice.

First, the trial court properly limited defense counsel when he began suggesting conclusions the jury should draw from the evidence. “The purpose of the opening statement is to inform the jury and the court of the nature of the case, and to give an outline of the proof the party anticipated presenting. Recounting the evidence already presented and suggesting the conclusion demanded by that evidence is the subject matter of closing argument.” Franks v. State, 188 Ga. App. 263 (372 SE2d 831). Second, we find no support for defense counsel’s assertion that the trial court tainted defendant’s trial by “unjustifiably and sternly berating [defense counsel] in the presence of the jury. . . .” Even though an open-court rebuke may have been in order since defense counsel failed to adhere to the trial court’s ruling on the State’s objection, the trial court judiciously chose to admonish defense counsel during a bench conference (apparently) outside the hearing of the jury. Consequently, the trial court’s steps in setting defense counsel straight on the proper course of delivering an opening statement could not have possibly deprived defendant of “due process and a fair and impartial hearing.” Finally, we do not perceive that the trial court’s reprimand to defense counsel was issued in an “imperious and unprofessional manner. . . .”

Decided September 21, 1995.

Gary M. Newberry, for appellant.

Spencer Lawton, Jr., District Attorney, Christine M. Sieger, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1508.
    HUMPHREY v. THE STATE.
    (462 SE2d 641)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with three counts of aggravated assault with a certain pistol, a deadly weapon; two counts of kidnapping; and two counts of aggravated assault upon a peace officer. The evidence adduced at his jury trial, including the defendant’s written custodial statement, showed that at approximately 2:00 a.m. on June 18, 1994, defendant quarrelled with his former girl friend, Tiffany Phillips, in a club named Sherwood’s. Defendant is the father of Tiffany Phillips’ three-year-old son. Defendant struck Tiffany Phillips for dancing with another man, Lynne Henderson. Tiffany Phillips declined to press charges because she “was scared of [defendant].” Tiffany Phillips was afraid to go home because she thought defendant “was going to be at [her] apartment.” She and her friends stayed at a Waffle House until 6:30 a.m., when Tiffany Phillips telephoned her mother, Anne Phillips, and was informed that defendant had not called or come by that night. When she arrived home she parked her car on the “other side of the apartments,” because she did not want defendant to see her car and stop. Once inside, Tiffany Phillips stood at the window, “either looking for Lynne [Henderson] to come back or her [mother’s] boss to show up, and about that time, [defendant] came around the corner in a friend’s truck, [or] Jeep.” Tiffany Phillips told defendant “to leave, please just leave, and about that time, Lynne [Henderson] came around the corner in his truck.” Defendant turned to go to his truck. Tiffany Phillips, fearful that defendant was going to get his gun from his truck, called 911. She saw defendant fire a shot at Lynne Henderson’s vehicle. As Lynne Henderson’s vehicle was pulling out of the apartments, defendant “busted in the front door,” which had been “dead bolted and locked and chained,” with the gun in his hand. Defendant pushed Tiffany Phillips into a corner, knocked the phone from her hand, and told her “he’s going to kill us, he’s going to kill us all, including himself.” Defendant pointed the gun at Tiffany Phillips and pointed the gun at her mother, Anne Phillips, “telling her to shut up or he’ll kill her, too.” When the police arrived at the apartment, defendant pulled Tiffany Phillips up out of the corner and grabbed her around her neck with his arm and put the gun to her head. When the police entered through the door, defendant pulled the gun from Tiffany Phillips’ head, pointed it at the police, and then back to her head. He then dragged Tiffany Phillips down the hall, pulling her. Once defendant reached Tiffany Phillips’ bedroom, he let her go. Terrified for her life, Tiffany Phillips begged permission to “call our son and tell him good bye first[.]” At the mention of their son, defendant’s behavior changed. He spoke to Tiffany Phillips without being violent and pointed the gun down. Together, Tiffany Phillips and the defendant unloaded the gun, and then defendant surrendered to the police.

Lynne Henderson identified State’s Exhibit 26 as a photograph of the “side panel of [his truck’s] door where the bullet went through.” Lieutenant James W. Smith and Officer Michael E. Taylor of the Riverdale Police Department responded to the domestic disturbance. After they announced “police,” defendant grabbed Tiffany Phillips around the neck and pointed the gun to her head. Defendant “then pointed the gun at [Lieutenant Smith and Officer Taylor] continuing to scream, get out, I’ll kill her, get out, I’ll kill you.”

The jury acquitted defendant of kidnapping Anne Phillips but found him guilty of all other charges. This direct appeal followed. Held:

1. In his first enumeration, defendant challenges the sufficiency of the evidence to convict. However, the evidence adduced at trial was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdicts that defendant committed aggravated assault by use of a deadly weapon against Tiffany Phillips, Anne Phillips, and Lynne Henderson as alleged in the indictment, in violation of OCGA § 16-5-21 (a) (2). Williams v. State, 208 Ga. App. 12 (430 SE2d 157). The evidence also authorized the jury’s verdicts that defendant committed aggravated assault against Lieutenant Smith and Officer Taylor, in violation of OCGA § 16-5-21 (c). Duitsman v. State, 212 Ga. App. 348 (1) (441 SE2d 888). Evidence that defendant dragged Tiffany Phillips at gunpoint down the hall to her bedroom is sufficient to authorize the jury’s verdict that defendant kidnapped her as alleged, in violation of OCGA § 16-5-40 (a). Lockett v. State, 217 Ga. App. 328, 329 (1) (457 SE2d 579). As to each conviction, the enumeration of the general grounds is without merit.

Decided September 21, 1995.

William W. West, for appellant.

Robert E. Keller, District Attorney, Mary D. Hanks, Assistant District Attorney, for appellee.

2. The trial court admitted testimony relating the circumstances of defendant’s violent 2:00 a.m. row with Tiffany Phillips as proof of a continuous course of conduct falling within the res gestae. On appeal, defendant enumerates this evidentiary ruling as error, arguing the trial court failed to “take into consideration the prejudicial impact in determining the probative value [, relying on] Brown v. State, 197 Ga. App. 155, 398 S.E.2d 34 (1990).”

“The determination that [extrinsic acts] evidence is more probative than prejudicial is implicit in the trial court’s determination that [such evidence is] substantially relevant for an appropriate purpose.” Evans v. State, 209 Ga. App. 606, 607 (2) (434 SE2d 148). Contrary to defendant’s argument, however, once a trial court has determined that evidence is relevant and admissible, “there is no further requirement that the record reflect the trial court’s express balancing determination as between the probative value of the evidence and its prejudicial impact. Such an express determination would be entirely superfluous, since evidence which ‘is otherwise relevant . . . does not become inadmissible simply because it incidentally puts a defendant’s character or reputation into evidence. (Cit.)’ Jones v. State, 263 Ga. 835, 839 (3) (439 SE2d 645) (1994).” Farley v. State, 265 Ga. 622, 625 (2) (458 SE2d 643). This enumeration is without merit.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1742.
    SPRATTLING v. THE STATE.
    (462 SE2d 461)
   McMurray, Presiding Judge.

Defendant was found guilty of armed robbery. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in allowing the State to place his character in issue by introducing evidence that the getaway car was a stolen vehicle and was discovered in a parking lot near his home. This contention is without merit as “ ‘(t)he state is entitled to inform the jury of all the circumstances surrounding the commission of the crime or crimes charged and we find no error in admitting this evidence as part of the res gestae even though it may have incidentally placed . . . defendant’s character in evidence.’ ” Houston v. State, 187 Ga. App. 335, 340 (5) (370 SE2d 178). See Stephan v. State, 205 Ga. App. 241, 242 (1) (422 SE2d 25).

Decided September 21, 1995.

Rubin, Winter, Rapoport & Hall, Robert G. Rubin, Joseph M. Winter, for appellant.

2. Defendant next challenges the admissibility of his custodial admission that he assisted two accomplices during the armed robbery of the McDonald’s restaurant where he was formerly employed by unlocking the restaurant’s side entrance. Defendant argues that he was unduly coerced into making this admission.

“ ‘Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.’ Berry v. State, 254 Ga. 101, 104 (326 SE2d 748) (1985).” Brown v. State, 259 Ga. 453, 454 (2) (383 SE2d 882). In the case sub judice, Detective M. T. Lance of the Fulton County Police Department testified at a hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908), that he advised defendant of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694); that defendant indicated a full understanding of these rights; that defendant waived his Miranda v. Arizona rights before questioning and that defendant was not threatened, promised any hope of benefit or otherwise coerced during the interrogation process. Detective Lance also testified that defendant appeared to be “alert and sober . . .” during the interrogation. This evidence is sufficient to authorize the trial court’s finding that defendant freely and voluntarily gave the custodial admission. See Bonilla v. State, 204 Ga. App. 424, 426 (3) (419 SE2d 495).

3. Defendant challenges the sufficiency of the evidence in his final enumeration, arguing that the only evidence against him was his presence at the scene of the crime. This contention is not supported by the record.

Defendant not only admitted to assisting in the armed robbery, but one of his accomplices implicated defendant in the armed robbery. Further, it is undisputed that the getaway car was found in a parking lot near defendant’s home and that the object of the armed robbery was defendant’s former employer. This evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of being a party to the crime of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Ellis v. State, 211 Ga. App. 605, 607 (1) (440 SE2d 235).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Charles E. Rooks, Assistant District Attorneys, for appellee.


author: Beasley, Chief Judge.

text:
    A94A2773.
    PAUL ROBINSON, INC. v. HAEGE.
    (462 SE2d 396)
   Beasley, Chief Judge.

Paul Robinson, Inc., sued Haege, alleging violation of a non-competition covenant ancillary to an employment contract.

Robinson, which is engaged in the business of buying and selling decorative art, employed Haege as a salesperson. In the employment agreement, Haege agreed that during the term of the agreement and for a period of one year after its termination, he would not contact any customer or customers of Robinson whom he had called upon within the sales territory, for the purpose of selling decorative art in competition with Robinson. A prescient provision states that “[i]n the event the enforceability of any of the terms of this Agreement shall be challenged in Court and [Haege] is not enjoined from breaching any of the protective covenants, then if a court of competent jurisdiction finds that the challenged protective covenant is enforceable, the time periods . . . shall be deemed tolled upon the filing of the lawsuit challenging the enforceability of this Agreement until the dispute is finally unsolved [sic] and all periods of appeal have expired.”

Robinson sought to enjoin Haege from violation of the covenant through a temporary restraining order as well as by interlocutory and permanent injunctions. Although Haege did not oppose the court’s grant of a temporary restraining order, he did oppose the motion for an interlocutory injunction. Among other things, he argued that the non-solicitation covenant is unenforceable in that the tolling provision potentially extends the duration of the covenant without limit, thus rendering it unreasonable under Gynecologic Oncology, P. C. v. Weiser, 212 Ga. App. 858, 859 (2) (443 SE2d 526) (1994), and ALW Mktg. Corp. v. McKinney, 205 Ga. App. 184, 188 (421 SE2d 565) (1992). The court agreed and entered an order dissolving the temporary restraining order and denying Robinson’s motion for an interlocutory injunction. It appears that this case is an “equity case,” within the meaning of Beauchamp v. Knight, 261 Ga. 608 (409 SE2d 208) (1991). Under Beauchamp, “ ‘equity cases’ are those in which a substantive issue on appeal involves the legality or propriety of equitable relief sought in the superior court — whether that relief was granted or denied. Cases in which the grant or denial of such relief was merely ancillary to underlying issues of law, or would have been a matter of routine once the underlying issues of law were resolved, are not ‘equity cases.’ ” Id. at 609 (2).

The substantive issue in this appeal involves the propriety of the superior court’s denial of injunctive relief on the ground that the covenant sought to be enforced is unreasonable. This involves both the trial and appellate resolution of equitable issues as well as the grant of equitable relief. See Clein v. Kapiloff, 213 Ga. 369 (98 SE2d 897) (1957). Accordingly, we transferred this case to the Supreme Court, but the case was transferred back to us. We thus decide the case because the decision of the Supreme Court binds us. Ga. Const., Art. VI, Sec. VI, Par. VI.

ALW, supra, held that a provision stating that the running of the covenant would be tolled and suspended while the employee was in violation of it potentially extended the duration of the covenant without limit and rendered it unreasonable and unenforceable on its face. On the authority of ALW the court in Weiser struck down a similar covenant, which was also conditioned on the employer’s seeking enforcement promptly after discovery of the violation.

This case differs from ALW and Weiser. The tolling provisions in those cases were triggered by a covenant violation, which may extend indefinitely. Under them, an employer could have brought suit to enjoin an employee’s violation of the covenant far beyond the time period during which it reasonably could have been enforced. In contrast, the tolling provision in this case can only be triggered if the enforceability of the covenant is challenged in a lawsuit instituted during either the term of the agreement or the one-year post-termination period when the covenant is in force. If the employee is not enjoined from breaching it but a court of competent jurisdiction later finds it enforceable, the time period is tolled during the pendency of the lawsuit until appeal periods have expired.

If an appellate court reverses a trial court’s determination that a covenant is unenforceable, refusal to give effect to such a tolling provision would reward the employee’s breach of contract, encourage protracted litigation, and provide an incentive to engage in dilatory tactics. Roanoke Engineering Sales Co. v. Rosenbaum, 290 SE2d 882, 886 (2) (Va. 1982). It would nullify in major part the covenant’s effectiveness. Capelouto v. Orkin Exterminating Co. of Fla., 183 S2d 532, 535 (7) (Fla. 1966). Tolling provisions similar to this have been found enforceable in other states. See Arrow Chem. Corp. v. Pugh, 490 SW2d 628, 633 (6) (Tex. Civ. App. 1972) (cited in Roanoke, supra at 886). In cases such as Roanoke and Capelouto, equity has given prospective enforcement to covenants where the employee was in violation of them during the pendency of the litigation. All things considered, we hold that the tolling provision in this case is reasonable and enforceable.

Haege argues that the prohibition against his contacting any customer within the sales territory whom he called upon during the term of the agreement, regardless of whether the call led to the customer becoming Haege’s customer, is overbroad. This argument is without merit. Nunn v. Orkin Exterminating Co., 256 Ga. 558, 559 (1a) (350 SE2d 425) (1986).

Decided August 25, 1995

Reconsideration denied September 22, 1995

Oliver, Duckworth, Sparger & Winkle, G. Robert Oliver, for appellant.

Driebe & Driebe, Charles J. Driebe, J. Ronald Stegall, Jr., for appellee.

Judgment reversed.

Andrews and Johnson, JJ., concur.


author: Pope, Presiding Judge. Beasley, Chief Judge, Ruffin, Judge,

text:
    A95A1257.
    PARTRIDGE v. THE STATE.
    (462 SE2d 415)
   Pope, Presiding Judge.

Defendant was convicted of armed robbery. There were two eyewitness/victims with ample opportunity to observe the robber at the scene of the crime, and both positively identified defendant as the robber at trial. One of the victims had been able to identify defendant as the robber in a pre-trial photo array, but the other had not.

In his sole enumeration of error, defendant contends the in-court identifications were tainted by the suggestiveness of his position at the defense table and the fact that he was the only black participant in the trial. The Georgia Supreme Court has already addressed and rejected this contention, however. Ralston v. State, 251 Ga. 682 (309 SE2d 135) (1983); see also Williams v. State, 174 Ga. App. 56 (1) (329 SE2d 226) (1985); Mangrum v. State, 155 Ga. App. 334 (1) (270 SE2d 874) (1980). The trial court is not required to provide a defendant with an in-court lineup of people resembling him, or to allow him to sit somewhere other than with his counsel at the defense table.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur specially.

Beasley, Chief Judge,

concurring specially.

I agree that no reversible error occurred by way of the in-court identification of defendant by the victims, even though one of the two victims had never identified defendant prior to trial and was only asked to identify him when he was the sole black male in the courtroom and was sitting at counsel table. The other victim had picked defendant out of a six-person photo spread shown to her at her home six days after the event. She was told beforehand that she had to be 100 percent certain before she made such an identification, and she did it within a few seconds. Defendant’s photo was one of those in the spread shown to the two victims, independently, because the investigator had developed him as a suspect.

At trial, counsel asked the court to allow defendant to sit out in the courtroom with other black males who were available to be brought in and to have the female victim asked the question of identification under these circumstances. Counsel recognized her identification as crucial because she had earlier picked him out. In support of this request defendant cited United States v. Archibald, 734 F2d 938 (2nd Cir. 1984), which was clarified in an order in 756 F2d 223 (2nd Cir. 1984). Even if that court’s view were to be followed, it would not apply to this case because defendant did not move prior to trial for any such procedure, a condition enumerated in Archibald.

We are bound in this case by Ralston v. State, 251 Ga. 682 (309 SE2d 135) (1983), which I believe is not materially distinguishable. See also Yancey v. State, 232 Ga. 167 (205 SE2d 282) (1974), for the applicable principles of constitutional law.

Although showing defendant to victims at trial as the only possible perpetrator suggests the answer to each of those who are called to identify him, I do not conclude that this procedure tainted the identifications in this case. The victims had extensive opportunity to observe defendant in their separate encounters with him during the event culminating in the crime, they gave descriptions which led to his selection as the only suspect, and they were certain in the courtroom that defendant was the person who committed the robbery.

The male victim, who had not identified defendant from the photo spread, testified that when he came to the courthouse he “looked at [defendant] and [he] right away saw that was the person.” He explained that “sometime when you see somebody in person, you know, you can see somebody better than, you know, when you’re looking at, you know, pictures. And pictures may be very old. He has peculiar ears. Okay. And he has his particular skin which I — you know, I can identify — I can identify eyes . . . And looking at the person sometime it could revive you the memories at that time what happened to you, who you were — looking at the person at that time, and you can see that that was the person or not.” He was “sure, positive” that defendant was the person who robbed him. The female victim was also “sure.”

As in Ralston, the victims were subject to full cross-examination about the bases for their in-court identifications and their ability to observe defendant during his involvement with them. There is little, if any, likelihood in this case that the in-court identifications were based on, or tainted by, defendant being positioned where he was in the courtroom and being the only black male present. The circumstances do not establish a risk of “irreparable mistaken identification.” Kirby v. Illinois, 406 U. S. 682, 691 (92 SC 1877, 32 LE2d 411) (1972).

Ruffin, Judge,

concurring specially.

Because one of the victims was able to positively identify Partridge in the pre-trial photo array and at trial, I concur in the judgment reached by the majority, but write separately to express my concerns with the inherently suggestive in-court identification by the other victim.

The majority holds that appellant’s issue is foreclosed by our Supreme Court in Ralston v. State, 251 Ga. 682 (2) (309 SE2d 135) (1983). I believe Ralston is factually distinguishable, hence not controlling. In Ralston appellants contended that their in-court identification should have been excluded from evidence because they were two of only four black persons present in the courtroom. In the instant case it is undisputed that appellant was the only black participant in the trial, which makes the in-court identification more suggestive than in Ralston. Such suggestiveness is more odious than the traditionally touted “Hobson’s choice,” and should not be countenanced. Williams v. State, 174 Ga. App. 56 (1) (329 SE2d 226) (1985) and Mangrum v. State, 155 Ga. App. 334 (1) (270 SE2d 874) (1980), cited by the majority are equally unpersuasive.

In Williams appellant was one of only two black males at counsel’s table. In Mangrum the court does not deal with the issue, but very cursorily holds that the issue is controlled by Lowe v. State, 136 Ga. App. 631 (1) (222 SE2d 50) (1975) (citing Crews v. State, 142 Ga. App. 319 (2) (235 SE2d 756) (1977)). A reading of Lowe reveals that the in-court identification there challenged was on the basis of a preliminary hearing identification which was alleged to be impermissively suggestive.

An in-court identification is inherently suggestive because everyone knows where the defendant usually sits during trial. An in-court identification based on appellant’s position at counsel table, coupled with the undisputed fact that he was the only person of his race participating in the trial, heightens the suggestiveness of his in-court identification. If the suspect is thought to be Asian-American, and he is the only Asian-American in the courtroom seated with lawyers, his in-court identification as the culprit is indeed hollow; if the suspect is thought to be Native American, and he is the only Native American in the courtroom and seated at counsel’s table, the in-court identification is indeed suspect; if the suspect is thought to be Italian-American, and the defendant is the only Italian-American in the courtroom and seated at counsel’s table, the in-court identification lacks credibility. In each instance it is not only the in-court identification which is suspect, but the integrity of the judicial proceedings is equally suspect. Accordingly, what goes without saying, needs saying. Such a procedure is an ominous and omnivorous error affecting anything and everything in its path. It is a grass green error which beckons fairness and due process.

In United States v. Wade, 388 U. S. 218 (87 SC 1926, 18 LE2d 1149) (1967), Justice Brennan, writing for the majority, found that “[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: ‘What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials.’ ... A commentator has observed that ‘(the) influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor — perhaps it is responsible for more such errors than all other factors combined.’ [Cit.] Suggestion can be created intentionally or unintentionally in many subtle ways.” Id. at 228-229. It is without question suggestive to ask a victim to identify the suspect when he is seated at the defense table and the only person of his race in the courtroom.

It is the duty of appellate judges to make concessions to stare decisis. It is a healthy and worthwhile doctrine which has grown gracefully with the law. But that doctrine compels courts to look forward as well as backward.

As courts look backward it is indeed comforting to realize that the law has been, and is, firm with respect to in-court identification. See, for example, Fambrough v. State, 146 Ga. App. 328 (4) (246 SE2d 384) (1978), and that line of cases where the in-court identification sprang from an independent and untainted source. It is that line of cases which gives those cases cited by the majority efficacy. I would preserve that authority.

As courts look forward, unfairness should not be exalted over fairness because of a doctrine’s history and longevity. Accordingly, where the in-court identification is the victim’s initial effort at identification, or where there has been a pre-trial photo array, I would, under the aegis of fairness, require a different mode of proof. That mode could even take place pretrial. But whatever form such proof takes, I would leave it to the wisdom and experience of trial judges to fashion a method that conforms with fairness based on the totality of the circumstances.

Decided September 7, 1995

Reconsideration denied September 22, 1995

Saia, Richardson & Meinken, Judy M. Chidester, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

       Tobias or Thomas Hobson (c. 1544-1631) was a carrier at Cambridge who “kept a stable of forty good mounts” but would allow a customer no choice, requiring him to take the horse that stood nearest the stable door or none, “so that every customer was alike well served . . . and every horse ridden with the same justice” (Spectator, No. 512). (Hobson’s requirement was humane and fair. But it was so opposed to the spirit of the age, in which every gentleman insisted on preferential treatment, that it attracted great attention.)


text:
    A95A1417.
    GENERALI — U. S. BRANCH v. OWENS.
    (462 SE2d 464)
   Beasley, Chief Judge.

Generali — U. S. Branch issued a policy of insurance to Pedro providing uninsured motorist and medical payments coverage. Generali paid benefits to Pedro as a result of injuries he sustained in a vehicular collision caused by Owens’ alleged negligence. Generali brought this action against Owens to recover its loss.

Owens answered the complaint, asserting as her first defense that Generali does not have standing to bring a direct action against her in its own name, in that OCGA § 44-12-24 provides that a right of action for personal torts may not be assigned. Owens filed a counterclaim seeking attorney fees and litigation expenses under various statutory provisions.

Generali filed a motion for summary judgment as to Owens’ counterclaim, arguing that this is a routine subrogation action long recognized under Georgia law. Generali cited Shook v. Pilot Life Ins. Co., 188 Ga. App. 714 (373 SE2d 813) (1988), which shows that subrogation for health insurance coverage is allowed under Georgia law. Generali also cited OCGA § 33-7-11 (f), which states that an insurer paying uninsured motorist benefits shall be subrogated to the rights of the insured against the person causing such injury or damage to the extent that payment was made.

Owens moved for summary judgment on the basis of her first defense. As authority, she cited Liberty Mut. Ins. Co. v. Clark, 165 Ga. App. 31 (299 SE2d 76) (1983), which Generali argued was distinguishable. The superior court granted Owens’ motion for summary judgment and denied Generali’s motion for summary judgment. Both rulings are enumerated as error.

1. As to the grant of summary judgment, Generali presses the argument that Clark, relied upon by Owens, is distinguishable.

In Clark, a Florida resident who held an automobile insurance policy issued in Florida was injured in Georgia by an automobile driven by an uninsured Georgia motorist. The Florida insurer became subrogated to its insured’s right of recovery against the uninsured motorist under a subrogation agreement. The Florida insurer sued (in its own name) the uninsured motorist, who asserted that the insurer had no standing to bring the suit. The trial court agreed, holding that OCGA § 33-7-11 only grants the right of subrogation to insurers issuing or delivering insurance policies in this state. Without the statutory right of subrogation, the trial court ruled that the insurer had no standing to sue. This Court agreed (Division 1) but held (Division 2) that the insurer did have a right of conventional subrogation by reason of its agreement with its insured. The agreement entitled the insurer to the rights of recovery of its insured and not to the insured’s right of action against the uninsured motorist. Had it done the latter, it would have constituted an assignment unenforceable under OCGA § 44-12-24, see Southern Gen. Ins. Co. v. Ezekiel, 213 Ga. App. 665 (445 SE2d 807) (1994), rather than an enforceable subrogation agreement.

Consequently, we held that although the insurer was subrogated to the rights of recovery of its insured, the right of action belonged to the insured, and any action against the uninsured motorist had to be brought in the name of the insured. Because the action was not brought by the proper party, it was correctly dismissed. Clark is on point with the present case and is not distinguishable.

2. Generali contends that the court erred in denying its motion for summary judgment on Owens’ counterclaim, contesting Owens’ argument that she has a right to recover her attorney fees and litigation expenses under OCGA §§ 9-15-14 and 13-6-11. The latter relates only to plaintiffs, Vogtle v. Coleman, 259 Ga. 115, 117 (3) (376 SE2d 861) (1989), and thus is not available to defendant Owens.

Although Owens may have a right to recover such damages under OCGA § 9-15-14, her counterclaim for such damages under that statute was premature. She filed it at a time when a party requesting attorney fees and litigation expenses under OCGA § 9-15-14 had to do so by motion within 45 days after the final disposition of the action, Moore v. Dixon, 264 Ga. 797, 800 (4) (452 SE2d 484) (1994), so her counterclaim was not a viable procedural vehicle through which to seek such damages. Deavours v. Hog Mtn. Creations, 207 Ga. App. 557, 559 (3) (428 SE2d 388) (1993), aff’d 263 Ga. 796 (439 SE2d 643) (1994). Under these circumstances, however, the correct disposition is to dismiss the counterclaim without prejudice. Hutchison v. Divorce &c. of Arline Kerman & Assoc., P. C., 207 Ga. App. 421, 422 (427 SE2d 784) (1993). The court did not err in denying Generali’s motion, because the grant of summary judgment is an adjudication on the merits. Gillis v. Goodgame, 199 Ga. App. 413, 414 (2) (404 SE2d 815) (1991).

Decided September 22, 1995.

Sullivan, Hall, Booth & Smith, Roger S. Sumrall, for appellant.

Robert H. Benefield, Jr., for appellee.

3. We deny Owens’ motion for damages for the imposition of penalties for frivolous appeal under Court of Appeals Rule 15.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A1358.
    MOSIER v. THE STATE.
    (462 SE2d 643)
   Beasley, Chief Judge.

Following a jury trial, Michael Mosier was convicted of one count of aggravated sodomy (OCGA § 16-6-2) and one count of rape (OCGA § 16-6-1). The trial court denied his motion for new trial.

The evidence construed in favor of the verdict showed that the victim, a young woman, left work around midnight and was driving home when her vehicle was bumped from behind by Mosier’s car. When she exited her automobile to inspect the damage she noticed Mosier had a knife. She screamed for help and in the ensuing struggle both she and Mosier were cut with it. Mosier overpowered the woman, placed her in his car, and took her to an isolated spot where he forced her to engage in sexual intercourse and acts of oral sodomy.

1. Mosier contends the trial court erred by refusing to permit him to present certain testimony and records at the hearing on his motion for a new trial. According to Mosier, this evidence would establish that: (a) the State knowingly injected false records and perjured testimony; (b) the State (through the prosecuting attorneys, police officers, and witnesses) filed false reports, manufactured false evidence, influenced misidentifications, committed perjury, tampered with defense witnesses, and obstructed justice; and (c) Mosier was not afforded constitutionally effective assistance of counsel.

Mosier filed a Motion for Order to Subpoena Defense Witnesses at Government Expense. He was given an opportunity at the hearing to inform the trial court of how these witnesses and evidence would support his position and was permitted to subpoena 13 of the 25 requested witnesses. The trial court found the evidence and testimony of the others were either not relevant or cumulative.

“The trial court has a wide discretion in determining what evidence is relevant and material.” Scott v. State, 178 Ga. App. 222, 225 (343 SE2d 117) (1986). Mosier failed to show how he was harmed by the trial court’s ruling in limiting his presentation of testimony and evidence at the hearing on his motion for new trial. Reversible error does not exist without harm. Hurston v. State, 194 Ga. App. 226, 227 (390 SE2d 119) (1990).

2. Mosier next contends he was deprived of his liberty without due process of law in violation of the Fifth Amendment, when the trial court refused to allow him to represent himself and to present his claims in the manner of his choosing.

Even though he cited the state constitution in his motion, we will not address it any further but deal only with whether a federal constitutional right was violated. Stephenson v. State, 206 Ga. App. 273 (424 SE2d 816) (1992).

Originally, Mosier wanted to act as co-counsel and participate in the conduct of the trial. The court did not permit this but worked out a plan for representation with which Mosier agreed, with respect to choices to be made by counsel or defendant during the course of the trial. That was later modified to be workable, with the ultimate choice of whether to testify to be left to defendant.

It had developed that defendant wanted to call certain State witnesses who had previously testified against him in a prior case so he could attack their credibility, but the attorney refused to do so because in his opinion it would be counterproductive. There was no harm from this disagreement because the evidence would not be relevant to the incident on trial, but rather was collateral, and because the court indicated that it would deny a continuance for such witnesses to be produced.

“A defendant may insist on representing himself. Faretta v. California, 422 U. S. 806, 820 (95 SC 2525, 45 LE2d 562) (1975).” Morrison v. State, 258 Ga. 683, 686 (3) (373 SE2d 506) (1988). In keeping with this constitutional principle, the Georgia Supreme Court in Morrison recognized that even if a defendant is represented by an attorney, the latter “ ‘is still only an assistant to the defendant and not the master of the defense’ ” where the defendant is properly informed and competent. In applying these principles in Morrison, the Georgia Supreme Court held that the attorney did not violate any of defendant’s rights by arguing in favor of a death sentence instead of life imprisonment because the defendant insisted on it.

Morrison recognized that it is up to the defendant to make “the ultimate decision about, for example, what line of defense to pursue, . . . , whether or not to testify in his own behalf, . . . , whether or not to plead guilty, . . . , and whether or not to present witnesses in mitigation. ...” Id. at 686. Mosier’s desire with respect to the witnesses would fall into the same category of decisions, but it is not unlimited. Relevance and timeliness are practical curbs.

Even if the trial court erred in allowing Mosier’s attorney to determine not to call these witnesses, a holding we are not prepared to make, the evidence against Mosier was overwhelming. The victim picked Mosier’s photo from a photographic lineup and identified him in court. Her identification was corroborated by other evidence that the assailant was Mosier. She testified that the front of Mosier’s car struck her car and both she and Mosier were cut by Mosier’s knife during the struggle, after which she was placed in the passenger seat of his car. When the police stopped Mosier for a traffic violation several hours after the incident, there was damage to the front end of Mosier’s car and blood on his pants. Human blood was also found on carpet later removed from the passenger side of the car. Two similar crimes had been committed by Mosier, and the victims of those crimes identified him as well.

Any such error was harmless beyond a reasonable doubt in light of the overwhelming evidence of appellant’s guilt. Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38) (1988). This is the federal rule of harmless error when deciding federal constitutional claims, which we must apply here, as recognized in LaRue v. State, 137 Ga. App. 762, 764, fn. 1 (224 SE2d 837) (1976). This rule goes beyond the “highly probable test” which applies to nonconstitutional errors in criminal cases. That test simply requires the court to conclude that, in its reasoned judgment, it is “ ‘highly probable that the error (if any) did not contribute to the judgment.’ ” Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). Its use is illustrated in Ragan v. State, 264 Ga. 190, 192 (3) (442 SE2d 750) (1994).

Here, a federal constitutional error is asserted. “A conviction will be affirmed despite constitutional error if the error is harmless beyond a reasonable doubt. Chapman v. California, 386 U. S. 18 (87 SC 824, 17 LE2d 705) (1967).” Vaughn v. State, 248 Ga. 127, 131 (2) (281 SE2d 594) (1981). Chapman likened this test in large measure to its earlier stated test of “a reasonable possibility” that the error “might have contributed to the conviction.” Chapman, supra at 24. In Vaughn, the Georgia Supreme Court noted that “[o]verwhelming evidence of the defendant’s guilt can negate the possibility that the constitutional error contributed to the conviction. [Cit.]” Id. at 132. The United States Supreme Court applied the Chapman test in Schneble v. Florida, 405 U. S. 427, 430-432 (92 SC 1056, 31 LE2d 340) (1972), and considered the overwhelming evidence of guilt in reaching the conclusion that the constitutional error “was at most harmless.” Id. at 432.

We cannot conclude, putting the burden on the State, that had the choices which appellant now complains of been followed, the integrity of the conviction would be in doubt. In fact, it appears that the error, if any, benefited appellant. Thus, a reversal of the conviction on the ground that Mosier’s Fifth Amendment right was violated is not warranted.

3. Mosier also contends the trial court erred in denying his motion for funds to hire his own expert witness to test the State’s DNA evidence independently. Mosier claims the trial court, in denying this motion, violated his right to due process and equal protection of law.

In order to obtain funds to hire an expert witness an indigent defendant is required to show: (1) why certain evidence is critical; (2) what type of scientific testimony is needed; (3) what the expert proposes to do regarding the evidence; and (4) the anticipated costs for services. Roseboro v. State, 258 Ga. 39, 41 (3) (d) (365 SE2d 115) (1988). Mosier failed to show what his expert proposed to do regarding the evidence and failed to advise the court of the anticipated cost of these services.

The “ ‘ “granting or denial of a motion for appointment of expert witnesses lies within the sound discretion of the trial court,” ’ and ‘ “(u)nless there has been an abuse of discretion, the trial court’s ruling will be upheld.” ’ [Cit.]” Ely v. State, 192 Ga. App. 203, 204 (1) (384 SE2d 268) (1989). As Mosier failed to comply with the criteria set out in Roseboro, it was not error to deny the request for funds.

Mosier also argues the trial court erred by basing its denial on the fact that the assailant’s identity did not rest entirely on the DNA evidence, and not on the basis of whether Mosier made a proper showing. “ ‘[0]rdinarily a judgment right for any reason must be affirmed.’ ” Goodson v. State, 213 Ga. App. 283, 284 (444 SE2d 603) (1994).

4. Mosier also contends the trial court erred by issuing a cautionary instruction rather than granting his motion for mistrial when inadmissible expert testimony was presented to the jury.

The State’s DNA expert testified that Mosier’s DNA matched the DNA taken from semen removed from the victim. On cross-examination the witness stated her assistant actually conducted the tests but was unavailable to testify. The court excluded the evidence as inadmissible hearsay and gave the jury a cautionary instruction to disregard the expert’s entire testimony.

Mosier alleges the court abused its discretion in denying his motion for mistrial because the testimony was so prejudicial that a curative instruction was inadequate. “ ‘ “The grant or refusal of motions for mistrial is largely within the discretion of the trial court, and this discretion will not be interfered with unless manifestly abused; and, where the trial court immediately upon the happening of an irregularity gives cautionary instructions to the jury, this court will not disturb the trial court’s judgment refusing a motion for mistrial.” [Cit.]’ [Cit.]” English v. State, 202 Ga. App. 751, 755 (5) (415 SE2d 659) (1992).

Considering the evidence as a whole, and especially the fact the DNA evidence was not the only evidence linking Mosier to the crime, the trial court did not abuse its discretion by electing to exclude the evidence with curative instructions rather than grant a mistrial. Usher v. State, 259 Ga. 835, 837 (2) (388 SE2d 686) (1990).

5. In his final enumeration of error, Mosier claims he was denied effective assistance of counsel. To prove such a claim, appellant must show: (a) counsel’s performance was not reasonable under the circumstances; and (b) there is a reasonable probability that, but for counsel’s errors, the results of the proceeding would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). “Both components must be shown before we can find that the conviction ‘ “resulted from a breakdown in the adversary process that renders the result unreliable.” ’ [Cit.]” French v. State, 261 Ga. 424 (405 SE2d 35) (1991).

(a) Mosier claims his attorney did not investigate the facts of the case. Counsel testified he met with Mosier and discussed the facts with him on numerous occasions. He also testified he interviewed witnesses and checked on leads provided to him by Mosier and secured Mosier’s former attorney’s file and provided the contents of it to Mosier. We conclude that counsel’s preparation was not a shortfall constitutionally.

Mosier also contends counsel failed to interview two State witnesses, one of whom could explain that the blood stain found in Mosier’s car occurred on a different date and time. The other witness was the State’s DNA expert. Even if counsel should have interviewed these witnesses prior to trial, there is no reasonable probability that either witness’s testimony likely would have changed the outcome of the trial. Young v. State, 194 Ga. App. 335, 337 (3) (390 SE2d 305) (1990).

(b) Mosier alleges trial counsel failed to file a written motion requesting funds to hire a DNA expert, and that he was unprepared to argue such a motion. It is immaterial that the motion was oral because the court considered its merits. The trial court denied the request, basing its decision not on counsel’s preparedness or lack thereof, but rather on the fact that the victim’s ability to identify Mosier made the DNA evidence less than crucial.

Mosier also implies trial counsel did not understand DNA testing and was ineffective when the evidence was presented by the State’s DNA expert. However, through counsel’s efforts the entire DNA evidence was excluded by the trial court.

Decided September 25, 1995

Michael R. Mosier, pro se.

Tommy K. Floyd, District Attorney, Shelly Tice, Assistant District Attorney, for appellee.

Appellant attempts to cite numerous other examples of trial counsel’s alleged inadequacy but fails to show how any of these acts prejudiced his defense or how the outcome of his trial would have been different were it not for these alleged deficiencies. We recognize a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance. White v. State, 265 Ga. 22, 23 (453 SE2d 6) (1995). “ ‘A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.’ (Cit.)” Harris v. State, 198 Ga. App. 503 (402 SE2d 62) (1991). “Viewing ‘the totality of the representation provided by counsel,’ [cit.], we concur in the trial court’s conclusion that counsel was not ineffective.” Young v. State, 194 Ga. App. 335, 337 (390 SE2d 305) (1990).

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       He does not pursue a claim under the state constitution’s bill of rights, which provides that “No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” Ga. Const., Art. I, Sec. I, Par. XII.


text:
    A95A1032.
    HOPKINS v. LIFE INSURANCE COMPANY OF GEORGIA.
    (462 SE2d 467)
   Beasley, Chief Judge.

Hopkins, the beneficiary of a $150,000 life insurance policy issued to her husband, sued Life Insurance Company of Georgia because of its refusal to pay the proceeds of the policy following his death. She appeals from the grant of summary judgment, which was ordered on the ground that material misrepresentations made by Mr. Hopkins in the insurance application precluded a recovery.

In the application, Life of Georgia asked Mr. Hopkins questions such as whether he had had any symptoms of any disease or impairment, any medical or hospital treatment or other checkup or consultation, and any known indication of any nervous or mental disorder. He responded in the negative, failing to disclose the fact that he had undergone a neuropsychiatric evaluation at a Veterans Administration Medical Center (VAMC) approximately 16 months earlier.

In the psychiatrist’s report of the evaluation, he stated that Mr. Hopkins “had a mournful expression and a voice of similar quality. ‘I’ve got bad nerves,’ he replied when questioned. ‘I wake at night, and I jerk. I just can’t stand any frustration. I strike out. I get angry ... I just have trouble with my feelings. I talked to the lady in Cedartown about my condition. My wife has been urging me to talk to somebody about myself . . . ,’ he continued. ‘I don’t know of any family history of any nervous condition like mine . . . Well, the last few years I just haven’t been right. Mentally I haven’t been right. I don’t care about anything. I don’t want to do anything. I cry a lot. I just get upset. I’ve had the problems really for about a year or more . . .’ T just got bad nerves. I get stressed out. I need some help. . . .’ ” The psychiatrist stated that Mr. Hopkins was “obviously depressed” and gave him a diagnosis of “Depressive Reaction.”

The underlying basis for summary judgment was that the underwriting manual utilized by the insurer, but not compiled by it, classifies a Depressive Reaction as an “Affective Disorder” and requires a higher premium or declination where, as here, the duration of such an impairment is two years or less. Life of Georgia’s underwriting experts testified by affidavit that there is no discretion to place such a diagnosis in a different classification and that the company would not have issued the subject policy if the misrepresentations and contents of the VAMC records had been known.

In opposition, Mrs. Hopkins submitted the affidavit of another insurance underwriting expert. He testified that he would not have classified Mr. Hopkins’ Depressive Reaction diagnosis as an Affective Disorder and gave various reasons: Mr. Hopkins applied for a smoker policy, and Life of Georgia issued a policy to him based on standard smoker rates; the VA psychiatrist did not prescribe any medication for Mr. Hopkins or recommend that he undergo hospitalization or treatment; Mr. Hopkins was not having family problems and had not taken time off from work.

Mrs. Hopkins’ expert testified that for these reasons, he would have classified Mr. Hopkins’ Depressive Reaction as an Anxiety Disorder without significant depression present, under the underwriting manual used by the insurer. This disorder is less severe than an Affective Disorder and does not require either a higher premium or declination. The expert opined that if Mr. Hopkins’ diagnosis had been so classified, Life of Georgia would have issued a policy as applied for, i.e., based on standard smoker rates.

In contending that the trial court erred in granting the defendant’s motion for summary judgment, Mrs. Hopkins also points out that the cause of Mr. Hopkins’ death, approximately four months after he completed the insurance application, was “coronary atherosclerosis with acute occlusion of circumflex coronary artery.” He had informed Life of Georgia, in the application, that he was a smoker, that he had had a chest x-ray at the VAMC (at about the same time as the neuropsychiatric evaluation), and that he had a family history of heart attacks and cancer. The psychiatrist stated in his report that “sufficient material does not surface to support PTSD [post traumatic stress disorder],” which the underwriting manual classifies as an Anxiety Disorder.

Decided September 26, 1995.

Steve Bennett, for appellant.

Gorby & Reeves, Martha D. Turner, Michael E. Fisher, for appellee.

Nonetheless, under the manual, the type of psychiatric impairment must be determined from the diagnosis of the attending physician if such a diagnosis is given. The psychiatrist diagnosed Depressive Reaction. The manual classifies this as an Affective Disorder. According to the manual, which indisputably governs, the diagnosis actually given cannot be changed to a different albeit less severe diagnosis, either because the patient’s symptoms and characteristics could support a less severe diagnosis or because the psychiatrist rejects a less severe diagnosis on the ground that sufficient material to support it had not surfaced.

Mrs. Hopkins’ expert acknowledged that Mr. Hopkins’ responses to various questions in the insurance application constituted misrepresentations. Compare Prudential Ins. Co. of America v. Seagraves, 117 Ga. App. 480, 481 (2) (160 SE2d 912) (1968). Contrary to other testimony by this expert, the guidelines in the underwriting manual would have required the insurer to either charge Mr. Hopkins a higher premium or decline to issue a policy if it had known of his diagnosis. Therefore, the misrepresentations were material as a matter of law under OCGA § 33-24-7 (b) (2) and (3). See Davis v. John Hancock Mut. Life Ins. Co., 202 Ga. App. 3, 5 (413 SE2d 224) (1991); compare United Family Life Ins. Co. v. Shirley, 242 Ga. 235 (248 SE2d 635) (1978); Ga. Intl. Life Ins. Co. v. Bear’s Den, 162 Ga. App. 833, 837 (3) (292 SE2d 502) (1982) (misrepresentation not material under prudent insurer standard). It is immaterial whether the applicant acted in good faith in completing the application. Davis, supra. It is likewise immaterial that he ultimately died from an unrelated cause concerning which there was no misrepresentation. See Mut. Benefit Health &c. Assn. v. Marsh, 60 Ga. App. 431 (2) (4 SE2d 84) (1939). Summary judgment was authorized.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A1305.
    ATLANTIC CONTAINER SERVICES et al. v. GODBEE.
    (462 SE2d 465)
   McMurray, Presiding Judge.

On June 1, 1993, claimant Godbee filed claims with the State Board of Workers’ Compensation seeking compensation for two injuries which occurred on April 13, 1992 and on August 31, 1992. The award of the administrative law judge determined that the statute of limitation had run as to the earlier injury. While noting that the statute of limitation had not run as to the later injury, the ALJ denied compensation due to lack of jurisdiction. This was based on a finding that the claimant had filed a claim and received benefits for this claim under the Longshoremen’s & Harbor Workers’ Compensation Act, 33 USC 901 et seq. (hereafter “LHWCA”), and upon a determination that the LHWCA provided an exclusive remedy. On appeal to the Appellate Division, the award of the ALJ was adopted.

The superior court, finding authority for concurrent jurisdiction by both the federal and state statutory scheme, held that it was error for the State Board of Workers’ Compensation to decline jurisdiction over claimant’s claim. The superior court also found that the Board erred in concluding that the statute of limitation had run in regard to the claim based on the earlier injury. Claimant had also received benefits under LHWCA for this earlier injury until shortly before the filing of these state claims.

We granted the discretionary application for permission to appeal from the judgment of the superior court, submitted by employer Atlantic Container Services and its insurer, Commercial Union Insurance Company, since there appears to be no prior Georgia authority governing these circumstances. For the reasons which follow, we must affirm the judgment of the superior court. Held:

1. The decision in Sun Ship v. Pennsylvania, 447 U. S. 715 (100 SC 2432, 65 LE2d 458) provides an instructive history of the boundary and juxtaposition of the LHWCA and state workers’ compensation law. The evolution of the federal statutes and case law occurred over more than half a century, but most important to this case is the 1972 amendment of LHWCA which extended the LHWCA to provide relief for land based injuries which had previously been viewed as within the province of state workers’ compensation law. Sun Ship v. Pennsylvania, supra, held that the 1972 amendment established concurrent jurisdiction in both the LHWCA and state workers’ compensation law for this class of injuries. The Board’s supposition that its jurisdiction had somehow been preempted cannot be reconciled with this conclusion and must yield to the decision of the United States Supreme Court.

The argument that Sun Ship v. Pennsylvania, supra, does not require the State of Georgia to accept jurisdiction in the instant case or award benefits to the employee suggests a misunderstanding of the issue presented. It is upon our state statutes that the employee’s claim to compensation rests. Once it is determined that the federal legislation does not preempt our state law, we proceed under our state workers’ compensation scheme.

Decided September 26, 1995.

Lowendick, Speed & Donahue, J. Wallace Speed, for appellants.

We also note the misplaced reliance on this Court’s decision in Anderson v. Savannah Machine &c. Co., 96 Ga. App. 621, 622 (100 SE2d 621). This case not only predates the 1972 amendment of the federal statute and the decision in Sun Ship v. Pennsylvania, supra, but may also be distinguished on the facts and thus provides no support for the award of the Board.

2. We also approve of the superior court’s conclusion that the statute of limitation as to the earlier injury had not run. OCGA § 34-9-82 (a) provides: “The right to compensation shall be barred unless a claim therefor is filed within one year after injury, except that if payment of weekly benefits has been made or remedial treatment has been furnished by the employer on account of the injury the claim may be filed within one year after the date of the last remedial treatment furnished by the employer or within two years after the date of the last payment of weekly benefits.” Although funded by a different insurance carrier under the LHWCA; the employer provided income benefits and remedial medical treatment for the earlier injury. The employee continued to receive temporary total disability benefits under the LHWCA until May 17, 1993, and at the time of the hearing before the ALJ was receiving permanent partial disability benefits as well as continuing medical treatment.

Thus, the question presented is whether the receipt of benefits and treatment under the LHWCA served to toll the running of the statute of limitation. While use of the common meaning of the words used in OCGA § 34-9-82 (a) would lead us to an affirmative answer, the employer and its workers’ compensation insurer urge otherwise for reasons that are not clearly stated. Many references are made to the differences in administrative details between the federal and state schemes, and undoubtedly there are numerous issues we do not reach in regard to coordinating the federal and state schemes where claims are made under both. However, these administrative problems do not compel a disregard of the plain language of the statute.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

Zipperer & Lorberbaum, Ralph R. Lorberbaum, for appellee.


text:
    A95A0892.
    PIONEER CONCRETE PUMPING SERVICE, INC. v. T & B SCOTTDALE CONTRACTORS, INC.
    (462 SE2d 627)
   Beasley, Chief Judge.

Pioneer provided concrete pumping services to T & B on a construction project. On August 30, 1991, while Pioneer was performing this service, one of the braces supporting its truck gave way and a T & B employee was killed. After the pumping was completed, Pioneer presented a form “job ticket” to Lovett, T & B’s site supervisor who signed it. The front of the form showed the amount of time spent and quantities supplied by Pioneer that day and had a signature line that read: “The above Times and Quantities are Verified to be Correct: BY__”

On the reverse of the form were “TERMS AND CONDITIONS” which related to such matters as Responsibilities of Lessee; Delays, Stoppages and Backcharges; Notice and Waiver; and Terms of Payment. Included is a provision stating T & B would indemnify Pioneer for any claim “resulting from the performance of this agreement,” unless the claim was the result of Pioneer’s “sole negligence.” This provision in effect shifted risk to the general contractor. There was no reference on the front to these terms and conditions on the back. Identical job tickets had been used with previous Pioneer deliveries on this project, signed by Lovett and others, and paid by T & B without protest concerning the terms on the reverse.

As a result of the application of OCGA § 34-9-11, the employee’s family made a demand upon Pioneer, which entered negotiations and eventually settled for $700,000. Although Pioneer notified T & B of the negotiations, T & B did not participate. Pioneer claimed a right to indemnification based on the provision on the back of the job ticket, but T & B denied the claim and Pioneer sued. Both parties moved for summary judgment. Pioneer appeals from the court’s grant of T & B’s motion and the denial of its own.

1. The court erred in ruling that as a matter of law the job ticket was insufficient to bind a signer to the terms and conditions appearing on the reverse. “[0]ne signing a document has a duty to read it and is bound by the terms of a document he does not read.” Trulove v. Woodmen of the World Life Ins. Soc., 204 Ga. App. 362, 365 (1) (419 SE2d 324) (1992). The fact that the terms and conditions were printed on the reverse of the document does not render them unenforceable as a matter of law, nor does Lovett’s testimony that he never read the back. See Brown v. Five Points Parking Ctr., 121 Ga. App. 819 (175 SE2d 901) (1970). T & B’s position, carried to its logical end, is that what was on the back of the ticket was meaningless or superfluous, the same as though it had been blank.

Citing Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assn., 250 Ga. 391 (297 SE2d 733) (1982), T & B argues that there was no enforceable contract because there was no meeting of the minds. However, “[a]s recognized in Cox, it is rudimentary contract law that in some instances the only conduct of the parties manifesting their intent is the express language of the agreement, whereas in other instances the language is ambiguous, in which case the courts are free to consider extrinsic evidence of the parties’ intentions. Cox was a case of the latter variety.” Trulove, supra at 365-366 (3). This, like Trulove, is a case of the former kind.

Lovett’s signature on the document, if otherwise effective to bind T & B, bound it to the indemnification provision. OCGA § 13-2-1.

2. T & B next claims Lovett’s signature on the document was not binding upon it. It does not contest he was its agent, only that he did not have authority to sign an agreement that the company would indemnify Pioneer. Lovett not only signed the document in this instance but had previously signed other Pioneer documents with identical provisions.

Although there is evidence sufficient to show T & B held Lovett out as having authority to sign the document, see Howard v. St. Paul Fire &c. Ins. Co., 180 Ga. App. 802, 804 (1) (350 SE2d 776) (1986), whether it is conclusive fact need not be reached; the evidence shows T & B ratified Lovett’s signature. OCGA §§ 10-6-51; 10-6-52. “ ‘ “To bind the principal, there is no necessity for a positive or direct confirmation on his part, of the act of the agent, but it may arise by implication, from the acts or proceedings of the principal in pais. [Cits.] . . . Slight circumstances and small matters will sometimes suffice to raise the presumption of ratification.” [Cits.] A ratification by the principal refers back to the act ratified, and becomes effective as if originally authorized; and a ratification once made can not be revoked.’ [Cit.]” Lipsey Motors v. Karp Motors, 194 Ga. App. 15, 17 (1) (389 SE2d 537) (1989). Ratifying conduct can include silence, id., or payment pursuant to an allegedly unauthorized agreement. Holliday Constr. Co. v. Sandy Springs Assoc., 198 Ga. App. 20, 21 (2) (400 SE2d 380) (1990).

Bettis, T & B’s project manager, contacted Lovett the week after the accident and expressed concern that Lovett’s signature might expose T & B to liability. Bettis then sent Pioneer a letter stating T & B would withhold certain funds reflecting costs calculated to be attributable to the accident. The letter did not claim Lovett was not authorized to sign the job ticket, nor did it state T & B did not consider itself bound by the indemnity provision. Rather, its general tenor suggests T & B took the position the accident was due solely to Pioneer’s negligence, in which the indemnity provision would not apply. T & B paid a portion of the sums reflected on the August 30, 1991 job ticket, ratifying Lovett’s signing of the ticket.

Decided September 11, 1995

Reconsideration denied September 27, 1995

Goodman, McGuffey, Aust & Lindsey, William S. Goodman, Kimberly C. Raley, for appellant.

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., Jeffrey T. Wise, for appellee.

T & B argues that this letter shows it had some dispute about Pioneer’s services on August 30, 1991; it therefore made only a partial payment, and such behavior does not show a complete ratification. It also argues that any ratification applied only to the “time and quantity” statements on the front of the form, not the terms and conditions on the reverse. Either T & B ratified Lovett’s signature or it did not. The law provides that “[t]he principal shall be bound by all the acts of his agent within the scope of his authority; if the agent shall exceed his authority, the principal may not ratify in part and repudiate in part; he shall adopt either the whole or none.” OCGA § 10-6-51; see Vickery Ins. Agency v. Chambers, 215 Ga. App. 48, 50-51 (449 SE2d 885) (1994). It was error to rule as a matter of law that T & B had not ratified Lovett’s signature.

As T & B points to no evidence it repudiated Lovett’s signature, other than its letter claiming an offset on the amount owed Pioneer for the services rendered on August 30, which dispute does not affect the indemnity provision, there is no issue of material fact remaining. Summary judgment on this issue should have been granted to Pioneer, not T & B.

3. Pioneer does not argue that the fatal accident was caused by other than its “sole negligence,” and it appears that factual matter remains contested. The court did not err in denying Pioneer’s motion for summary judgment.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Ruffin, J., concur.


author: Pope, Presiding Judge.

text:
    A95A1371.
    FLANAGAN v. THE STATE.
    (462 SE2d 469)
   Pope, Presiding Judge.

Defendant Charles Flanagan was convicted of child molestation following a jury trial at which he represented himself. Defendant had requested appointment of counsel, but he did not meet the county standards for indigency due to his gross monthly income of $1,169, and his request was denied. The trial court advised defendant to retain counsel and gave him time to do so. Defendant and his family contacted several attorneys and found they needed at least $5,000 for anyone to take the case. Although defendant was able to borrow some money from his employer and tried to borrow more from family members, he could not come up with this amount. He therefore appeared without counsel on the day of trial, and asked the court to consider appointing an attorney to represent him. The court denied this request, and defendant — who claims that he is almost illiterate — went to trial pro se.

In a motion for new trial, defendant (then represented by counsel) argued that the trial court erred in denying defendant’s request for appointed counsel and proceeding to trial without first ascertaining whether defendant had exercised reasonable diligence in attempting to retain counsel. The trial court took evidence on the reasonable diligence issue at a hearing on the motion for new trial. In its order, however, the court denied defendant’s motion without considering defendant’s diligence, holding that defendants like Flanagan who do not meet the indigency standard but nonetheless are unable to retain counsel have no recourse, regardless of how diligent they are: “Unfortunately, defendant falls into ‘that class of citizens which cannot reasonably hire counsel, as a practical matter, and is not entitled to appointed counsel, as a legal matter.’ Smith v. State, 211 Ga. App. 567, 571 (440 SE2d 44) (1993) (Beasley, P. J., dissenting), rev’d 264 Ga. 634 (452 SE2d 90) (1994).” We conclude that while a defendant who is not indigent is not automatically entitled to appointed counsel, he is entitled to have the trial court consider his request for appointed counsel based on the individual circumstances of his case; and the defendant’s diligence in attempting to retain counsel would be one circumstance to consider. Thus, the trial court erred in denying defendant’s request without considering the circumstances of his case, including his diligence.

We have repeatedly held that while the court must provide for representation of an indigent criminal defendant, see OCGA § 17-12-4, it is not obligated to appoint counsel for a defendant, such as Flanagan, who is not indigent. See, e.g., Everman v. State, 203 Ga. App. 350 (1) (416 SE2d 861) (1992); Burnett v. State, 182 Ga. App. 539, 540 (1) (356 SE2d 231) (1987). Yet the court does have some obligations with respect to a non-indigent defendant appearing before it pro se: “ ‘[W]hen presented with a non-indigent defendant who has appeared for trial without retained counsel, the trial judge has a duty to delay the proceedings long enough to ascertain whether the defendant has acted with reasonable diligence in obtaining an attorney’s services and whether the absence of an attorney is attributable to reasons beyond the defendant’s control.’ [Cit.]” Houston v. State, 205 Ga. App. 703, 704 (423 SE2d 431) (1992). Accord Callaway v. State, 197 Ga. App. 606 (398 SE2d 856) (1990); Burnett, 182 Ga. App. at 539 (1) (1987).

The court’s duty to examine the defendant’s diligence is based on the right to counsel, which non-indigent as well as indigent defendants have, rather than the right to appointed counsel, which they do not. The State suggests Flanagan voluntarily chose to represent himself after being warned of the consequences of doing so, see Kirkland v. State, 202 Ga. App. 356 (414 SE2d 502) (1991), and therefore waived his right to counsel. But from our review of the record, particularly defendant’s colloquy with the court immediately prior to his trial, it is clear that defendant preferred to have an attorney and only “chose” to represent himself because he could not afford one. See also Hasty v. State, 215 Ga. App. 155 (2) (450 SE2d 278) (1994).

The Houston line of cases, holding that the court should determine whether the non-indigent defendant was reasonably diligent, all involved the issue of whether the court should have delayed the trial to allow the defendant to continue his attempts to retain counsel. This is different, of course, from the issue raised by this defendant — whether the trial court should have appointed counsel for him despite his non-indigent status. Nonetheless, the reasoning of these cases leads naturally to the question underlying Flanagan’s argument: If a court must grant a continuance to allow a reasonably diligent non-indigent defendant more time to retain an attorney, what must the court do if, even with the continuance, he still has not been able to obtain counsel?

The answer is found in Uniform Superior Court Rules 29.4 and 29.5. While the court does not have the duty to appoint counsel for defendants who do not meet the indigency standard, it does have the discretion to do so. See Butler v. State, 198 Ga. App. 217 (401 SE2d 43) (1990) (physical precedent only). And this discretion must be affirmatively exercised, based on the individual circumstances of each case; the court cannot simply deny all such requests as a matter of policy. Cf. Stapp v. State, 249 Ga. 289 (290 SE2d 439) (1982) (conviction reversed where inadequacy of questions on form prevented court from considering special circumstances which may have warranted appointment of counsel); Cottingham v. State, 206 Ga. App. 197 (3) (424 SE2d 794) (1992) (adherence to policy in determination of matter within court’s discretion amounts to refusal to exercise discretion and abdication of judicial responsibility). In exercising its discretion, the court should also keep in mind that if it appoints counsel, it may order the non-indigent defendant to reimburse the county over time. See OCGA §§ 17-12-10 (c); 17-12-11.

Decided September 27, 1995.

Valpey & Walker, Gregory W. Valpey, for appellant.

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

In this case, the trial court’s order shows that the denial of defendant’s request for counsel was based solely on defendant’s failure to meet the indigency standard, without any consideration of his diligence or other special circumstances. Thus, we remand this case for a hearing to allow the trial court to exercise its discretion on whether the circumstances warranted appointment of counsel. Cf. Hasty v. State, 210 Ga. App. 722 (1) (437 SE2d 638) (1993). Although the parties have already presented evidence on reasonable diligence, they have not had the opportunity to address other special circumstances, such as defendant’s illiteracy, which may militate for or against appointment of counsel in this case. If the trial court in its exercise of discretion concludes that the circumstances warranted appointment of counsel, defendant will receive a new trial; if not, no new trial is necessary.

Case remanded.

Beasley, C. J., and Ruffin, J., concur.

       We recognize the possibility that a county’s indigency standard (and the statutory scheme which allows that standard to govern the determination of indigency) may at some point violate defendants’ constitutional rights by defining indigency too narrowly. Flanagan does not raise this issue, however. Instead, he accepts the court’s determination that he is non-indigent, and argues that he is nonetheless entitled to appointed counsel — or at least to the trial court’s consideration of diligence before denying his request for appointed counsel.


text:
    A95A1818.
    HUTCHISON v. THE STATE.
    (462 SE2d 648)
   Pope, Presiding Judge.

Hutchison was charged and convicted of possession of a firearm by a convicted felon (OCGA § 16-11-131). In his sole enumeration of error, Hutchison argues that there was a fatal variance between the allegations in his indictment and the evidence at trial, and that because of this, the trial court erred in denying his motion for a directed verdict of acquittal.

The indictment charged that Hutchison was convicted in September 1988 in Pickens County for forgery; in November 1988 in Cherokee County for forgery in the first degree; in July 1989 in Forsyth County for being a habitual violator; in December 1988 in Forsyth County for forgery in the first degree; and in March 1992 in Forsyth County for theft by taking of a motor vehicle. Hutchison asserts that the State incorrectly stated that the September 1988 felony conviction was for forgery, when in fact this conviction was for forgery in the first degree. The second count of the indictment, which the court later dismissed, charged Hutchison as a recidivist and correctly recited that the September 1988 conviction was for forgery in the first degree. At trial, certified copies of the various convictions cited in the indictment, including the September 1988 conviction for forgery in the first degree, were introduced.

Hutchison contends that although the recitation of all five felonies in the indictment was unnecessary, once the State chose to list the five convictions, it had the duty to correctly denominate each one. Hutchison argues “if the State elects to aver in a possession of firearm by felon count that the defendant has been convicted of more than one prior felony offense, such averment is descriptive of the manner in which the offense was committed and, as such, the State must make an honest attempt to prove the offense ‘as laid’ (see generally Ross v. State, 195 Ga. App. 624 (1) (b) (394 SE2d 418) (1990) and cases therein cited). ...” State v. Freeman, 198 Ga. App. 553, 555 (2) (402 SE2d 529) (1991).

Pretermitting whether Hutchison’s failure to file a timely, written demurrer or motion waived this argument, see generally Bentley v. State, 210 Ga. App. 862 (1) (438 SE2d 110) (1993), we find Hutchison’s substantive argument without merit. “Our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense.” (Citations and punctuation omitted.) Denson v. State, 212 Ga. App. 883, 884 (2) (443 SE2d 300) (1994). We conclude that the failure to correctly list the forgery conviction as forgery in the first degree did not result in a variance between the indictment and the proof offered at trial so serious that it affected his substantial rights, prejudiced the preparation of his defense, or exposed him to the possibility of subsequently having to stand trial for the same charge. We therefore reject Hutchison’s argument that the motion for a directed verdict of acquittal should have been granted on this ground.

Decided September 27, 1995.

James E. Hardy II, for appellant.

Gcirry T. Moss, District Attorney, Margaret E. Daly, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.