text:
    A93A1095.
    ALLISON v. PATEL.
    (438 SE2d 920)
   Beasley, Presiding Judge.

Plaintiff Allison, widow of defendant Patel’s patient, appeals from a defendant’s verdict and judgment in a medical negligence claim. Motion for new trial was denied. Two subjects of evidence and argument, i.e., settlements with other defendants and the doctor’s justification for absence, and the jury charges related to each, are at issue.

On June 30, 1986, Allison went to defendant, vascular surgeon Manhar Patel, complaining of pain and swelling of his lower right leg. Defendant was on the active staff of AMI Griffin Spalding Hospital and was the only vascular surgeon in Griffin. Defendant conducted an office examination and recommended that Allison be admitted to the hospital immediately for further tests, specifically, an arteriogram.

The arteriogram procedure was performed by radiologist Hayes on July 3, the delay being occasioned by the patient’s respiratory disease. Dr. Hayes had a policy of not performing the procedure unless defendant was available to treat any complications, even if someone else had ordered the particular test. Hayes did this because only a vascular surgeon such as defendant could treat some of the possible complications resulting from an arteriogram.

Dr. Hayes notified defendant when the procedure had been completed. She perceived no need to request that defendant examine Allison. Thereafter, defendant received a telephone call from his brother-in-law, who told him that defendant’s mother-in-law had slurred speech, was non-responsive, and was dying. Defendant knew she had diabetes and a heart condition, so he contacted a doctor in Griffin and went with his wife to Jonesboro to see about the mother-in-law. Once there, defendant resumed contact with the doctor, an internist, and came back to Griffin with his mother-in-law that night to take her to the doctor’s office. He remained with her to reassure her (she was visiting from her home in India) and had dinner with the family. During the time defendant was away he could not be contacted by the hospital, Dr. Duke or Dr. Hayes, and he did not attempt to call the hospital because he knew Dr. Duke was covering him, which was in fact true. He learned the next morning that Allison had complications.

Dr. Duke and defendant had previously discussed what to do in case a vascular emergency arose when defendant was unavailable. The covering arrangement between Dr. Duke and defendant allowed either of them, without contacting the other, to take time off or leave town and have the other cover for him. The two had agreed that vascular emergency patients would be transferred to the location of doctors recommended by defendant. A patient could be put in the hands of another vascular surgeon in an Atlanta hospital within one to two hours at any time. Dr. Duke was qualified to handle 90 to 95 percent of complications arising from an arteriogram. Only defendant could pérform the procedure necessary to treat Allison’s thrombosis, and thus use of the transfer plan was necessary. The particular complication suffered by Allison occurred in approximately one out of a thousand administrations of an arteriogram.

When Allison returned to his hospital room following the arteriogram, he complained of severe pain in his right leg. He was given pain medication, but the severe pain continued. Around 5:30 p.m., a hospital nurse contacted general surgeon Duke and informed him that Allison’s right leg was cold and pulseless. Dr. Duke diagnosed a thrombosis, believed that a vascular surgeon was needed, and determined that Allison would have to be transferred to another facility because defendant was not available. Allison’s wife gave her permission for the transfer.

At approximately this same time, Dr. Hayes came to see Allison, either because nurses contacted her or as a matter of course. She, too, diagnosed a thrombosis in Allison’s right leg and attempted unsuccessfully to locate defendant. She learned that Dr. Duke was covering for defendant and received a call from Duke. Both physicians agreed that a vascular surgeon was needed immediately.

After attempting for over an hour to locate another vascular surgeon, Duke located a cardiovascular surgeon at Emory University Hospital in Atlanta who would take Allison. The county ambulance was unable to transport Allison and a Life Flight helicopter flew him to Georgia Baptist Hospital, from which he was taken to Emory.

Allison arrived at Emory about 10:00 p.m., and surgery commenced at 12:10 a.m. He received several thrombectomies over a period of a month in an attempt to avoid amputation of his right leg. At the end of that time, the leg was amputated above the knee. While still in intensive care, Allison suffered further complications resulting in cardiac failure and his death on September 4.

Plaintiff filed suit against Patel, the medical institutions, other physicians, and nurses involved in her husband’s treatment, as joint tortfeasors even though there was not a concert of action. See Posey v. Medical Center-West, 257 Ga. 55 (354 SE2d 417) (1987). All defendants except Patel were voluntarily dismissed before trial. As to Dr. Hayes and as to the hospital in Griffin and its nurses, plaintiff agreed to releases and indemnity in consideration of $125,000 and $195,000 respectively, a total of $320,000.

Each of the two releases was expressly limited to the party or parties to whom it was given and stated that plaintiff would seek further recovery from others until full satisfaction was obtained. Plaintiff agreed to indemnify each in the event contribution was sought from any other defendant and to hold each harmless in the event of other suits based on this occurrence. Each agreement expressly provided that it was in settlement and compromise and that the releasee denied liability. Consent judgments were entered, stating that plaintiff sought further damages against other parties so as to achieve full satisfaction.

The plaintiff specified two grounds of professional negligence against defendant. The first alleged that ordering and performing the arteriogram was a deviation from the standard of care in that it was not proper to give such a test at that time. The second alleged that defendant deviated from the standard of care by leaving the hospital and failing to make alternative arrangements, thus making himself unavailable to treat any complications resulting from the arteriogram.

Plaintiff filed a motion in limine to exclude evidence of (1) the fact of settlement of her claims against Hayes and the hospital and nurses; (2) the fact of dismissal of the claims against Duke and the other doctors involved; and (3) any amounts paid by reason of the various settlements. She urged that if the court allowed the jury to learn of the settlements, it not permit the jury to know the amounts. In the consolidated pretrial order, which did not specify the verdict form, plaintiff objected to evidence of the amount of settlements and sought a verdict for the full amount of damages, which “the court” could reduce in the judgment by the total amount of the settlements ($320,000). The court denied the motion.

During trial, over objection, defendant introduced the release and indemnity agreements and referred to the settlements and amounts, through the testimony of plaintiff, inferring they indicated negligence of the parties who settled. In defendant’s closing argument, he drew attention to the settlements and amounts and connoted liability.

Plaintiff in her motion in limine also requested the court to exclude “any reference or evidence as to reason or alleged justification of Dr. Patel for leaving Griffin and otherwise being unavailable following arteriogram ordered on Mr. Allison.” This aspect of the motion was denied, too, and such evidence was presented.

At the outset of the charge to the jury, the court reminded it that this was a trial against Dr. Patel. The extensive charges regarding the two negligent acts alleged and the standard of care required of a physician such as Dr. Patel were related to him alone. The court charged that defendant denied negligence and denied proximate cause if he was negligent. The court did not charge that the doctor “defended” on the basis that plaintiff had already been fully compensated.

As to proximate cause, the court charged that where separate and distinct but concurrent acts or omissions of negligence of different persons are the proximate cause, “compensation for the entire loss” may be recovered “from either or both of the parties responsible.” The court further charged that if defendant’s negligence joined with that of others, the jury need not determine relativity because plaintiff could recover the full amount of damages against any one of them. The court also charged on intervening acts and their breaking of the causal connection, and on other causes such as unrelated infirmities.

Thereafter, the court addressed damages, first instructing the jury that it was not to consider such unless and until it first found defendant liable, that instructions on damages are not to be taken as a suggestion of liability or damages, and that damages in a fair and reasonable and just amount are given as compensation. It then charged:

“If you find the defendant, Dr. Patel, liable in this matter, you are to determine in your enlightened consciences the total amount of damages to which the plaintiff would be entitled without consideration of any amount previously paid to the plaintiff. It is only after the total amount of damages is determined that the amount of any payment by any other tortfeasor will act as a satisfaction and then only to the extent of such payment.” (This portion of the charge was requested by plaintiff, citing Ford Motor Co. v. Lee, 237 Ga. 554, 556 (2) (229 SE2d 379) (1976), and Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36, 49 (60 SE2d 770) (1950) but the request was submitted “subject to and without waiver of objection to evidence of amount of settlement being disclosed to jury.” Plaintiff had insisted from the outset that the jury not receive evidence of settlements and amounts and only determine the entire amount of damages.)

The court continued: “I charge you that an injured party is not entitled to a double recovery for his or her damages. In this regard, if you find that the money paid in the sum of $320,000 heretofore received by the plaintiff from former defendants Dr. Knowles and from Griffin ÁMI Hospital and others fully compensated the plaintiff for all damages received by her as a result of the occurrences complained of in this action, then you would not be authorized to find for the plaintiff and against the defendant in this case any additional sums. On the other hand, if you find that plaintiff has not been fully compensated for her injuries, then to the extent you find the plaintiff’s injuries were caused by the defendant in this case and are in excess of the compensation originally paid to the plaintiff by the other defendants, then a verdict against the defendant would be authorized, but you would — but would be reduced by you by the amount which you find the plaintiff has already been compensated.” (This portion of the charge was requested by defendant, citing Knight v. Lowery, 228 Ga. 452 (185 SE2d 915) (1971) (overruled in Maxey v. Hosp. Auth. of Gwinnett County, 245 Ga. 480, 482 (265 SE2d 779) (1980); Williams v. Physicians &c. Hosp., 249 Ga. 588, 592 (292 SE2d 705) (1982)); Sims v. Bryan, 140 Ga. App. 69 (230 SE2d 39) (1976); Rowland v. Vickers, 233 Ga. 67 (209 SE2d 592) (1974).) Thereafter charges on the measure and items of damages were given.

The court did not give the jury a verdict form but asked for a general verdict and that it be “simple so that even the lawyers can’t misunderstand it.” After the jury charge, plaintiff’s attorney asked that a proposed verdict form to show specific items of damage be given, but defendant objected and wanted at least a $320,000 “setoff” to be provided for on the form if each item of damage was to be separately set out. The court denied plaintiff’s request, and a general verdict in the jury’s own handwriting was returned “in favor of defendant on all, both counts.”

1. In her first and second enumerations of error, plaintiff contends that the trial court erred in allowing evidence and argument of the fact and amount of her settlements with co-defendants and in its correlative charge to the jury. In the first, she urges that because the fact and amount of the settlements were not in dispute and because she had agreed to a verdict reduction in that amount, any evidence or argument concerning the settlements was irrelevant and prejudicial and violated the policy of encouraging settlement.

In the second, plaintiff contends that the charge quoted above tended to confuse the jury because it reversed the issues of liability and damages in two manners. As to liability, the charges invited the jury to consider the issue of damages first and then, if the damages constituted full compensation, defendant would be exculpated and there would be no need to consider defendant’s liability. As to damages, it invited the jury to focus on the amount of the settlement and decide if this was “full compensation” and then, if it was not, award plaintiff the difference between that amount and an amount it found to be “full compensation.”

The case was tried on two alleged acts of negligence, i.e., ordering an arteriogram and not being available to treat complications which might arise when it was performed. The evidence related to two separate acts, the parties argued them as distinct and sequential events, and the court charged the jury that there were two, carefully delineating each. The jury’s verdict, that it found “in favor of the defendant on all (both) counts,” indicates that it found defendant was not negligent or did not proximately cause the patient’s death, in either of the two ways alleged. It appears, although not conclusively, that the jury did not reach the question of damages. Thus, the following principle does not apply: “Where an error in the giving of a charge or in the admission or exclusion of evidence relates only to the issue of damages, and the jury finds the defendant not liable, the error is harmless because it does not affect the verdict.” Pouncey v. Adams, 206 Ga. App. 126, 127 (424 SE2d 376) (1992).

Even if it did, the issue of whether this evidence erroneously affected the question of liability is not moot.

Plaintiff urges that the matter of settlements was irrelevant to, but infected, the issue of Dr. Patel’s liability, and that the jury may have considered it as evidence that the released parties are the ones responsible for the injuries and that defendant should be exculpated. Despite what is in the release document, the fact that a co-defendant is paying a substantial sum could appear to the jury as an unstated admission of liability of the actual tortfeasor who buys dismissal from the lawsuit. Brewer v. Payless Stations, 412 Mich. 673 (316 NW2d 702, 704) (2)) (1982). Plaintiff’s very contention is that the treatment of damages, i.e., the introduction of the settlements and amounts and the court’s instruction, affected the issue of liability by causing the jury to return its verdict in favor of the defendant based on plaintiff’s earlier recovery.

Because the verdict was general, neither party having requested that liability and damages be separate items in the verdict, we do not know for certain whether the jury found defendant not liable because of lack of negligence or lack of proximate cause, or even whether it found, him such but that plaintiff had been fully compensated. Another possibility is that its finding of no negligence or no proximate cause was influenced by its knowledge that others in the chain had paid substantial sums. Hence, we cannot avoid the questions of (a) whether the admission of the evidence or the charge was error and, (b), if so, whether the error was harmful.

(a) “Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” OCGA § 24-2-1. The issues on trial were whether Dr. Patel committed acts of negligence as alleged and, if so, what were the damages resulting, for which plaintiff should be compensated. The fact that plaintiff settled with other alleged tortfeasors who participated in the care and treatment of the patient before his death is not relevant to the issue of whether Dr. Patel was negligent. As adopted in Posey, supra at 59: “A valid release of one tortfeasor from liability for a harm, given by the injured person, does not discharge others for the same harm, unless it is agreed that it will discharge them.” Nor was it relevant to the amount of damages, because as stated in King Cotton, Ltd. v. Powers, 190 Ga. App. 845, 848 (2) (380 SE2d 481) (1989), “We can discern no purpose in disclosing to the jury the amount of the settlement if the jury was not to consider the settlement in awarding damages to the plaintiffs.”

(b) There is a danger that the question of total damages will be influenced by the fact that plaintiff received $320,000. The jury might consider it a gauge. It might be inclined to assign percentages of liability and to consider relative fault: It might conclude, for example, that Dr. Hayes was equally at fault so Dr. Patel should not have to pay more than she did. That would lead the jury to award $125,000 against Dr. Patel, automatically resulting in a total damages figure of $445,000. But Dr. Hayes’ liability is not at issue, and her payment of $125,000 is not a measure of her liability; it should not influence in the least the jury’s determination of the total damages. Her settlement may have been arrived at in part by extraneous factors such as the desire to avoid the expense and time required by litigation.

Nor should it influence the jury to determine that some liability must be attached to the payments of $320,000, so those defendants and not Dr. Patel were at fault. Yet plaintiff has no burden to prove they were or they were not; it is immaterial to whether defendant on trial was at fault, and the jury should not be permitted to speculate that the fact of settlement with others affects the liability of the defendant. As quoted in Posey, supra at 58: “ ‘a release is a surrender of the cause of action, which may be gratuitous, or given for inadequate consideration.’ Prosser, [Torts 332 (5th ed. 1984)].” We cannot discern as a matter of law that the jury did not take the fact or amounts of settlement into account in determining liability or damages; we cannot discount prejudice.

The evidence was irrelevant, and it was error to admit it. It was also harmful for at least the reasons described above. Thus we need not address the jury charges.

2. The desire to inform the jury why the trial does not encompass the alleged negligence of the other defendants shown on and in the pleadings (which the jury will see) can be easily satisfied without evidence or charge on settlement and its effect on damages. The court can simply instruct the jury that it is not to be concerned with the liability of any other participant in the incident or how much they will be required to pay if anything; that they are to focus only on the liability of the defendant on trial and, if they find him liable, the total amount which will compensate plaintiff for the injuries inflicted. The court can inform the jury that this will not result in plaintiff’s possibly recovering twice, that other mechanisms will prevent it.

Then, when the verdict is returned, the court can reduce the judgment by the amount of any settlements. The added advantage is that the parties can check the calculations of the court but cannot check those of the jury on a general verdict or even be assured they performed that task. See King Cotton, Ltd., supra.

In Blossman Gas Co. v. Williams, 189 Ga. App. 195, 200 (2) (375 SE2d 117) (1988) (non-precedential), the court held it was not error to exclude from evidence the covenants never to sue, which under OCGA § 13-4-81 are equivalent to releases of the covenanted parties. In Blossman, the court’s reduction of the verdict and allowance of defendant’s discussion of evidence of others’ wrongdoing, as the sole proximate cause of harm, obviated the risk of double recovery and thus no reversible error was found. The court cited Ford Motor Co., supra, 237 Ga. at 555-556, Division 2, and Malone v. City of Rossville, 107 Ga. App. 271, 272 (1) (129 SE2d 563) (1963). As noted in Blossman, payments to plaintiff under the covenants operate pro tanto upon any judgment against the non-covenanting defendant. American Chain &c. Co. v. Brunson, 157 Ga. App. 833, 837 (278 SE2d 719) (1981). Court, rather than jury, reduction was approved in Weaver v. Ross, 192 Ga. App. 568, 571 (2) (386 SE2d 43) (1989).

The covenants and the payments under them are not defenses for the non-covenanting tortfeasor. They govern only how much of the potential judgment the tortfeasor will have to pay to plaintiff. Others’ post-episode covenants do not relieve the defendant of liability, although the tortfeasor’s showing that the others involved in the episode were at fault instead of himself, would be a defense.

The Ford Motor Co. case demonstrates the danger of considering the covenants as a defense and allowing them in evidence and instructing the jury not to consider it. This practice creates an inconsistency and hazards the possibility that the jury will misunderstand. The panel of this court which dealt with the problem was not convinced that the jury understood correctly, whereas the majority of justices held that it did. There is no reason to becloud what otherwise is clear, by injecting matter which casts doubt on the jury’s verdict. See also Barnes v. Wall, 201 Ga. App. 228 (2) (411 SE2d 270) (1990) (physical precedent but cited in Pouncey, supra).

King Cotton, Ltd., supra, is another example of the confusion which is created when the fact and amounts of settlement are introduced into the jury’s deliberations. A new trial was required because of the ambiguity of the verdict, which was caused by the introduction of settlement evidence and the court’s instruction to disregard it (although the court did not strike it). Further potential confusion or erroneous consideration of settlement by the jury was invited by this court’s direction that upon retrial, the trial court could allow disclosure of settlement and amount to the jury. Id. at 849. Two options were offered. The first was that the settlement amount may be disclosed and the jury instructed to consider it in awarding a verdict against the remaining party. The second was that the amount must be withheld and the jury instructed to disregard dismissal of parties and return a verdict for the total amount due as a result of the negligence. “[T]he court would then, of course, set off the amount of the settlement allocated to each plaintiff from the jury’s award. See generally Annot., 94 ALR2d 352.” Id. at 849. Alternative methods of handling reduction are also described in Barnes, supra at 229 (2), but they all still involve the jury’s knowledge of the fact of settlement. Accord City Express Svc. v. Rich’s, Inc., 148 Ga. App. 123, 125 (4) (250 SE2d 867) (1978); Ford Motor Co. v. Lee, supra at 237 Ga. 556 (2).

Although the second option in King Cotton, Ltd. is more preferable, it does not eliminate the irrelevant evidence altogether. This is necessary to avoid the effect it might have on the finding of liability vel non of the only party whose liability is at issue, as well as the effect it might have on the amount of damages to which plaintiff is entitled. The fact of settlement itself should be excluded, for as the court noted, the jury would be instructed to disregard it anyway.

3. In her third enumeration of error, plaintiff contends that the trial court erred in admitting evidence of “justification” for defendant’s alleged abandonment and in charging the jury that: “Before a physician can abandon or withdraw from a case without liability therefor, he must either give reasonable notice or provide a competent physician in his place. If a physician abandons a patient without justification and giving such notice or providing a competent physician in his place, it is a failure to exercise that care required by law. . . .” She argues that only facts concerning the applicable standard of care should have been admitted, and that inasmuch as justification is not a defense to a physician’s abandonment of a patient, evidence concerning defendant’s reasons for leaving was irrelevant.

“Abandonment of a patient is a tortious act. [Cit.] ‘Before a physician can abandon or withdraw from a case without liability therefor, he must either give reasonable notice or provide a competent physician in his place ... “A physician who leaves a patient at a critical stage of the disease, without reason, or sufficient notice to enable the party to procure another medical attendant, is guilty of a culpable dereliction of duty.” ’ [Cit.]” (Emphasis supplied.) Pritchard v. Neal, 139 Ga. App. 512, 514-515 (229 SE2d 18) (1976). Physicians are liable for “unwarranted” abandonment of the patient or for abandoning the patient “without reason.” See Overstreet v. Nickelsen, 170 Ga. App. 539, 541 (2) (317 SE2d 583) (1984); Carroll v. Griffin, 96 Ga. App. 826, 827 (2) (101 SE2d 764) (1958); Norton v. Hamilton, 92 Ga. App. 727, 731 (89 SE2d 809) (1955). See also Kenney v. Piedmont Hosp., 136 Ga. App. 660, 663 (2) (222 SE2d 162) (1975).

The standard thus provides opportunity for defendant physicians to offer evidence to show why the leaving of the patient was with reason or warranted, that is, with justification. In deciding whether a physician has met the requisite standard of care, “the jury may consider all the attendant facts and circumstances which may throw light on the ultimate question.” Word v. Henderson, 220 Ga. 846, 849 (142 SE2d 244) (1965). It was not error to permit the jury to hear defendant’s justification for his absence or to charge the jury in this regard.

Decided November 30, 1993

Reconsideration denied December 15, 1993

Donald R. Andersen, for appellant.

Beck, Owen & Murray, Samuel A. Murray, Bradford W. Thomas, for appellee.

4. Plaintiff’s fourth and final enumeration of error contends that the trial court erred in failing to give her request to charge the jury regarding the physician’s duty to continue to remain in attendance as long as the patient requires attention and care. The enumeration, unsupported by either argument or authority, is considered abandoned. Court of Appeals Rule 15 (c) (2). Melton v. Gilleland & Sons, 176 Ga. App. 390 (1) (336 SE2d 315) (1985).

Judgment reversed.

Cooper and Smith, JJ., concur.

       In Ford Motor Co. v. Lee, 137 Ga. App. 486, 490 (10) (224 SE2d 168) (1976), it was suggested that defendant plead the amount of the covenant as a defense, but that would be inappropriate.

       Contribution among defendants is not involved because it does not relate to the relationship between injured party and tortfeasors, or the claim of the injured party against the tortfeasor, but rather to the relationships and claims among the tortfeasors.

        Ford Motor Co. v. Lee, 137 Ga. App. 486, supra.

        Ford Motor Co. v. Lee, 237 Ga. 554, supra.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A93A1155.
    MILLER v. CHARLES.
    (439 SE2d 88)
   Smith, Judge.

We granted this interlocutory appeal from the denial of a putative father’s motion for summary judgment in a paternity action.

The facts are not in dispute. On June 24, 1991, Debra June Charles brought suit in Lanier County against Terry Miller for determination of paternity and support of her minor child. Miller answered, denying paternity and requesting blood testing. The test results suggested a 12,672 to 1 (99.99 percent) probability that Miller is the biological father of the child. A temporary consent order was then entered requiring Miller to pay child support. Miller then amended his answer to admit paternity and filed a counterclaim seeking custody. In his counterclaim, he asserted, among other things, that Charles was not a fit or proper person to have custody.

Soon thereafter Miller learned of an action in the Superior Court of Clinch County in which the Department of Human Resources (“DHR”) had been the petitioner on behalf of the same child. A consent order had been entered in that action on October 5, 1989, in which one Calvin Glaze did “acknowledge and recognize” himself to be the father of the child in question. Miller then moved the court to vacate the temporary consent order in the present case and for summary judgment, relying on a plea of res judicata. His motion was denied.

The sole question raised in this appeal is whether the previous adjudication acts as a bar to this action against Miller under principles of res judicata or collateral estoppel. We conclude that it does not, and we affirm.

The principle of res judicata is codified in OCGA § 9-12-40, which provides: “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” In deciding whether OCGA § 9-12-40 operates to bar a claim, we must consider: “(a) whether there is a valid antecedent judgment; (b) whether there is identity of parties; (c) whether there is identity of issues; and (d) whether reasons of public policy militate against a strict application of the above statute in this case.” Fierer v. Ashe, 147 Ga. App. 446, 448 (249 SE2d 270) (1978). The doctrine of collateral estoppel, also known as estoppel by judgment, is similar, but not identical. “Generally, res judicata bars relitigation of any matter of a cause of action that was, or could have been, put in issue and adjudicated in a prior proceeding between the same parties, while estoppel by judgment prevents relitigation in a subsequent suit (involving a different cause of action) a matter which was actually adjudicated in a former case. [Cits.] Neither defense, however, is available unless the subsequent suit is between the same parties or their privies. [Cits.]” Blackburn v. Blackburn, 168 Ga. App. 66, 72 (2) (308 SE2d 193) (1983).

1. “Privies are all persons who are represented by the parties and claim under them, all who are in privity with the parties; the term privity denotes mutual or successive relationship to the same rights of property.” (Citations and punctuation omitted.) Fleeman v. Dept. of Human Resources, 208 Ga. App. 97, 98 (430 SE2d 135) (1993). DHR initiated the prior action against Glaze. The complaint in the prior action, which is included in the record in this appeal, reveals that Charles accepted public assistance pursuant to OCGA § 19-11-5. Pursuant to OCGA § 19-11-6 (a), therefore, she is deemed to have assigned to DHR her right to child support, and DHR was subrogated to the rights of Charles and the child to recover any child support payments ordered by the courts of this or any other state. Although Charles and the child certainly benefitted from the prior action, DHR was subrogated only to Charles’s and the child’s right to support. OCGA § 19-11-7 (c). DHR’s sole interest in the action was to recover the sums it had expended in behalf of the child, and we look no further than OCGA § 19-7-49 (a) to determine the gist of its cause of action against Glaze: “The sole effect of the order [in the prior action designating Glaze as the father] shall be to establish the duty of the father to support the child.”

The State’s interest, however, although certainly legitimate and essential, does not fully “represent” the interest of either Charles or the child, and that interest is not co-extensive or fully congruent with either their interests or their purpose in seeking a determination of paternity. Even apart from the important emotional and human interest involved in a recognition of parenthood, significant rights and duties other than support flow from an order determining paternity and devolve upon both father and child. For instance, such a determination may entitle a child born out of wedlock to inherit from or through his father or any paternal kin, OCGA § 53-4-4 (c) (1) (B), and vice versa. OCGA § 53-4-5 (b) (1) (B). Mothers’ and children’s interests in these rights were not, and could not have been, litigated by DHR. OCGA § 19-7-49 (a). We hold, therefore, that neither Charles nor the child was a “privy” of DHR in the prior litigation. It is undisputed that Miller was a stranger to the prior action. It follows that the prior adjudication may not be used as a bar to the present action.

2. This result harmonizes Macuch v. Pettey, 170 Ga. App. 467 (317 SE2d 262) (1984), relied upon by Miller, with McGuire v. Witcher, 201 Ga. App. 685 (411 SE2d 875) (1991), cited by Charles. In Macuch, the trial court properly barred a mother from relitigating the issue of the paternity of her child in an action filed after obtaining custody and support for the child, who was born during the marriage, in a divorce action. The mother was clearly a party to the previous action. In McGuire, the mother was not a party to the prior action, an abandonment action brought by the State against one Johnson, and both the trial court and this court found no preclusive effect.

3. Finally, “reasons of public policy militate against a strict application of [OCGA § 9-12-40] in this case.” Fierer, supra. Those reasons were also touched upon in McGuire. There, Johnson had been named by the mother of an illegitimate child in an abandonment warrant. Johnson entered a plea of guilty in the prosecution. Subsequent blood testing excluded Johnson as the father of the child, but the abandonment conviction was never vacated. In a subsequent civil paternity action brought by the mother against McGuire, McGuire raised Johnson’s earlier conviction as a bar. However, blood test evidence excluded Johnson and did not exclude McGuire as the father of the child. The trial court ruled that the prior abandonment conviction did not bar entry of an order finding that McGuire was the father of the child, and this court affirmed.

The stated rationale in McGuire was based in part on the fact that the prior adjudication was a criminal prosecution, in which “the rules as to the competency of witnesses and the weight of evidence required for a finding are different. [Cit.] ” Id. at 686. However, a prior criminal adjudication would actually militate in favor of the application of res judicata, the standard of proof in criminal actions being higher than that in civil actions and paternity presumably having been proved beyond a reasonable doubt. The remainder of the stated rationale in McGuire defers to an important public policy, and applies to this case as well. Although “there can only be one biological father for any one child, [and] the law should not allow the possibility for inconsistent paternity adjudications^] . . . giving the first adjudication preclusive effect would perpetuate, rather than eliminate any inconsistency present. Adjudications of paternity must be supported by evidence to the trier of fact and any prior adjudications that do not have preclusive effect can be used by the trier of fact for their evidentiary value in the effort to arrive at the truth in a paternity action.” Id. We recognize, as did the court in McGuire, the possibility for abuse in permitting inconsistent paternity adjudications regarding the same child. However, “[t]he object of all legal investigation is the discovery of truth.” OCGA § 24-1-2. Biological evidence points overwhelmingly toward Miller as the father of the child, and here, as in McGuire, giving the adjudication against Glaze preclusive effect would perpetuate not simply an inconsistency, but more probably, a falsehood and an injustice.

Decided December 3, 1993

Reconsideration denied December 15, 1993

Griner & Mírate, Galen A. Mírate, for appellant.

Kitchens, Wolfson, Smith & Hannan, James R. Smith, Jr., for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A1256.
    BANK OF TOCCOA v. COTTON STATES MUTUAL INSURANCE COMPANY.
    (439 SE2d 60)
   Smith, Judge.

Plaintiff Bank of Toccoa was the loss payee on a policy of automobile insurance issued by defendant Cotton States Mutual Insurance Company. The bank filed this action seeking to recover under the policy. Cotton States answered and alleged that it had cancelled the policy prior to the loss. The bank moved for partial summary judgment on the issue of coverage under the policy, contending the purported cancellation was ineffective. The trial court denied the bank’s motion, and this appeal followed.

The undisputed material facts show that the bank required its borrower to maintain an insurance policy on her vehicle. Cotton States issued a policy for the term of April 9, 1990 to October 9, 1990, naming the bank as the loss payee.

A Cotton States employee, according to her affidavit, received a newspaper article from an agent in Toccoa reporting that the insured borrower had been arrested on a federal counterfeiting charge. On the basis of that article she initiated cancellation of the policy. Cotton States concluded that “this information sufficiently established that [the insured] did not meet Cotton States eligibility requirements and that her policy would be cancelled because of that criminal activity.” On this basis, Cotton States prepared a “Notice of Cancellation” stating in part, “REASON FOR CANCELLATION: THIS RISK DOES NOT MEET OUR ELIGIBILITY REQUIREMENTS.”

According to another employee’s affidavit, Cotton States mailed this notice to both the insured borrower and the bank on June 8, 1990. The notice had an effective date of June 22, 1990. The bank, however, denies receiving it. Cotton States acknowledges that it did not send a notice of nonrenewal either to the insured borrower or to the bank. On December 23, 1990, the vehicle was destroyed by fire.

1. The statutory requirements for notice of cancellation of an automobile insurance policy are governed by OCGA § 33-24-45. “The notice requirements of the statutes regarding cancellation of insurance policies are mandatory and require strict compliance and failure to adhere to the requirements results in noncancellation of the policy. [Cits.]” Pennsylvania &c. Ins. Co. v. Person, 164 Ga. App. 488, 490 (1) (297 SE2d 80) (1982). In this case, the attempted notice of cancellation by Cotton States did not conform to the relevant statutes or to its own policy language for two reasons, either of which will suffice to render the cancellation ineffective.

First, OCGA § 33-24-44 (b) requires: “[w]ritten notice stating the time when the cancellation will be effective, which shall not be less than 30 days from the date of mailing or delivery. ...” The policy itself likewise requires “at least 30 days notice,” not 20 days as contended by Cotton States. The purported notice on its face provided only 14 days’ notice. It therefore complies with neither the statute nor the relevant policy provision.

Cotton States contends that its attempted notice should be construed as actually stating the appropriate time period and that the policy should be “deemed” to be cancelled 30 days after the notice date. This contention has been decided adversely to Cotton States in Holcomb v. Southern Guar. Ins. Co., 143 Ga. App. 788 (240 SE2d 128) (1977). In that case, a workers’ compensation insurer provided 11 days’ notice of cancellation to the insured. Relying upon a predecessor statute to OCGA § 33-24-44 requiring 15 days’ notice, this court held that the purported notice did not meet the plainly stated requirements of the statute, and “thus the policy was never canceled.” 143 Ga. App. at 788. Failure to provide the 30 days’ notice mandated by the statute is apparent on the face of the purported notice, and results in noncancellation of the policy.

Second, OCGA § 33-24-45 (c) provides: “No notice of cancellation of a policy issued for delivery in this state shall be mailed or delivered by an insurer . . . except for one or more of the following reasons. . . .” It then lists eight reasons for cancellation, none of which appears on the notice of cancellation in this case. The policy itself provides that after it is in effect for 60 days, cancellation will occur only for nonpayment of premium, suspension or revocation of a driver’s license, or a material misrepresentation in obtaining the policy.

“This risk does not meet our eligibility requirements” is a mere conclusory statement and not a valid reason for cancellation under OCGA § 33-24-45 (c) or the relevant policy language. Cotton States attempted to cure this inadequate notice by means of its contentions in this litigation. In those contentions, it asserted for the first time that it actually had cancelled the policy on the basis of “reasonable suspicion of criminal activity.” Contentions in the trial court, however, cannot amend or alter the stated reason Cotton States gave on the notice required by OCGA § 33-24-45 (d). Moreover, OCGA § 33-24-45 (c) (7) (C) provides for cancellation where the insured or other operator has “a conviction record, criminal or traffic . . . which is such that his operation of an automobile might endanger the public safety.” Even assuming that a bona fide conviction for counterfeiting satisfies the requirements of OCGA § 33-24-45 (c), “suspicion” or accusation of criminal activity by word of mouth or a newspaper article is not a “conviction record” and does not satisfy those requirements.

Cotton States further contends that because OCGA § 33-24-45 (c) requires a notice of cancellation to be given “as required by Chapter 39 of this title,” the language found in one section of that title may be engrafted onto OCGA § 33-24-45 (c) to provide additional reasons for cancellation. However, “a reasonable suspicion . . . [of] criminal activity” is mentioned only in OCGA § 33-39-11, a provision regarding disclosure of adverse underwriting decisions. This language is applicable only when the insurer has advised the insured that it will provide the reason or reasons for an adverse underwriting decision upon request and the insured has made a written request. Here, Cotton States failed to list a statutory reason and failed to advise that further reasons were available upon request. Cotton States cannot transform information disclosure provisions from a separate Code section, which come into play only after an insurance company has sent a proper notice of cancellation, into an additional valid reason for cancellation under OCGA § 33-24-45 (c).

Cotton States also contends that because “[the bank] has conceded that it received the notice of cancellation” it has waived its right to insist upon compliance with the strict requirements of OCGA § 33-24-45 (c). This assertion is without foundation in the record and is contrary to Cotton States’ own statement of undisputed material facts below. “[I]n Georgia law a waiver is not favored and must be voluntary, knowing, and unequivocal. [Cit.]” Myers v. Texaco Refining &c., 205 Ga. App. 292, 295 (1) (422 SE2d 216) (1992). Cotton States points to no evidence in the record supporting a voluntary, knowing, and unequivocal waiver by the bank. Its own statement of the facts relevant to the issue is not supported by the record.

Citing Michigan law, Cotton States also contends that the bank cannot recover because it stands in the shoes of the insured, and the insured allegedly has waived her right to recover in this action. However, the language in the policy’s loss payable clause provides that any loss shall be paid “as interest may appear” and that insurance with respect to the interest of the loss payee shall not become invalid because of specified acts or omissions of the insured. Under this policy language, also known as a “New York standard” or “union” mortgage clause, there is a separate contract between the insurer and the loss payee. The loss payee on such a policy therefore has an independent cause of action for recovery of the policy proceeds, unaffected by any action of the insured. See generally Southern Gen. Ins. Co. v. Key, 197 Ga. App. 290, 292 (398 SE2d 237) (1990). This contention has no merit.

Cotton States correctly notes that the denial of summary judgment to an insurer was reversed by the Georgia Supreme Court where an insured admitted receipt of the notice of cancellation, even though the statutory requirements for mailing were not met. The purpose of the statute is to assure actual notice of cancellation to an insured, and where a proper notice admittedly was received that purpose has been accomplished. However, “[t]his holding would not be applicable where receipt of notice of cancellation is denied by the insured. Failure to follow the strict mandate of the statute would authorize summary judgment, upon proper motion, for the insured. [Cit.]” (Emphasis supplied.) Travelers Indem. Co. v. Guess, 243 Ga. 559, 561, n. 2 (255 SE2d 55) (1979). As noted above, the bank consistently has denied receipt of notice. Cotton States did not comply with the statute or its own policy requirements, either with regard to the timing of the notice of cancellation or the reason given for cancellation. Cotton States therefore cannot rely upon admitted delivery of a proper notice to excuse its failure to comply with the statutory requirements. Its attempted notice of cancellation was invalid and resulted in non-cancellation of the policy.

Decided November 29, 1993

Reconsideration denied December 15, 1993

Adams, Clifton & Sanders, Janney E. Sanders, for appellant.

McClure, Ramsay & Dickerson, John A. Dickerson, for appellee.

2. “There having been no valid cancellation of the policy, and it being undisputed that no notice of nonrenewal was mailed or delivered to [the insured] within 30 days of the . . . policy expiration date, as required by [OCGA § 33-24-45 (e) (1)], it follows that the policy must be deemed to have been renewed automatically for an additional . . . period on that date. [Cit.]” Alexander Underwriters Gen. Agency v. Lovett, 177 Ga. App. 262, 265 (2) (339 SE2d 368) (1985); see also Ga. Mut. Ins. Co. v. Mims, 187 Ga. App. 783 (2) (371 SE2d 426) (1988). Because Cotton States failed to follow the strict mandate of the statute or the requirements of its own policy, either with regard to the time interval before cancellation or the reason given for cancellation, the attempted cancellation was ineffective. Because no notice of nonrenewal was provided under OCGA § 33-24-45 (e) (1), the policy was extended under its terms for an additional six months, during which the loss occurred. The trial court erred in denying summary judgment to the bank on the issue of coverage under the subject policy.

Judgment reversed.

Beasley, P. J., and Cooper, J., concur.

       Cotton States alleges, and the bank conceded for the purposes of summary judgment below, that the purported notice was mailed. However, the bank has consistently denied ever receiving any notice of cancellation.


author: Cooper, Judge.

text:
    A93A1325.
    WILLIAMS v. THE STATE.
    (439 SE2d 11)
   Cooper, Judge.

Appellant was convicted by a jury of kidnapping with bodily injury, robbery by intimidation, possession of less than one ounce of marijuana and criminal use of an article with an altered identification mark. Appellant appeals from the denial of his motion for new trial.

1. Appellant argues that the evidence was insufficient to support the conviction. The victim testified that he was an acquaintance of both appellant and the co-defendant and that one night, at the request of the co-defendant, he rode with appellant and the co-defendant to purchase some marijuana. Upon arriving at their destination, the victim got out of the car and went across the street to purchase the marijuana. While he was gone, appellant and the co-defendant discussed a plan whereby they would steal the marijuana from the victim and beat him so that he would be reluctant to report the incident to the police. When the victim returned to the car, appellant and the co-defendant told him they needed to drive to a friend’s house to get the money for the marijuana. However, unbeknownst to the victim, appellant and the co-defendant were actually planning to follow through with their plan to steal the marijuana. The co-defendant drove with the victim in the passenger seat and appellant in the back seat to a secluded location where he stopped the car. Appellant got out of the car, went to the front passenger window and flashed what appeared to be a police badge at the victim. Appellant told the victim he was under arrest and pulled him out of the car, ripping off his shirt. Appellant and the co-defendant made the victim take off all of his clothes and lie face down on the ground. Appellant and the co-defendant kicked and hit the victim, and appellant held a metal pipe to the victim’s head to make the victim believe it was a gun. Appellant and the co-defendant took the remainder of the marijuana from the victim and left the victim in the woods. When he was sure that appellant and the co-defendant were gone, the victim walked through the woods to a nearby house where he called the police. Several days later, appellant and the co-defendant were arrested while riding around in the co-defendant’s car. A substance which subsequently tested positive for marijuana and a gun with the serial number scratched off were found in the car. The co-defendant testified and admitted his participation in the scheme. He also testified that he and appellant had smoked marijuana earlier in the day and that the gun belonged to appellant. Appellant argues that the evidence failed to show kidnapping because the victim went willingly with appellant and the co-defendant. However, the victim only consented to going with appellant and the co-defendant to find their friend so that they could get the money to pay for the marijuana purchased by the victim. The victim did not knowingly and willingly consent to go with appellant and the co-defendant to the remote area of the woods where the co-defendant and appellant attacked and abandoned him. See Peavy v. State, 159 Ga. App. 280 (1b) (283 SE2d 346) (1981). Also, even though the co-defendant admitted that the marijuana found in the car belonged to him, he testified that he and appellant had smoked some earlier that day. We conclude that the evidence was sufficient for a rational trier of fact to find appellant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In two enumerations of error, appellant contends that he was denied the effective assistance of counsel, citing 24 alleged deficiencies in his trial counsel’s performance. “Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), establishes the benchmarks for determining whether trial counsel’s representation of a defendant in a criminal case was so deficient as to result in the denial of the defendant’s right to assistance of counsel under the Sixth Amendment. Strickland requires a convicted defendant complaining of ineffective assistance of counsel to make a two-part showing. Under Strickland’s first component, the defendant must show that counsel’s representation ‘fell below an objective standard of reasonableness.’ [Cit.] In regard to this component, Strickland emphasizes that counsel’s ‘overarching duty’ is ‘to advocate the defendant’s cause ... to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.’ [Cit.] In determining whether the defendant has established that counsel’s performance was constitutionally deficient, the court should keep in mind that ‘counsel’s function ... is to make the adversarial testing process work in the particular case.’ [Cit.] ‘Counsel has a duty to make reasonable investigations.’ [Cit.] Moreover, the defendant must ‘overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” ’ [Cit.]” (Punctuation omitted.) Jowers v. State, 260 Ga. 459, 461-462 (2) (396 SE2d 891) (1990).

(a) Appellant argues that he was denied the effective assistance of counsel because his trial counsel was subsequently disbarred. The record reflects that appellant’s case was tried in June 1991, and in July 1992, his trial attorney was disbarred. See In the Matter of William G. Posey, 262 Ga. 326 (419 SE2d 21) (1992). “Alleged acts of professional misconduct in unrelated matters and cases fail to establish inadequacy or prejudice to this appellant arising out of this criminal prosecution. [Cit.]” Robinson v. State, 210 Ga. App. 278 (435 SE2d 718) (1993). We decline to hold that the subsequent disbarment of appellant’s trial counsel rendered his previous representation of appellant ineffective. Appellant must still make the requisite showing under Strickland that his counsel’s representation “fell below an objective standard of reasonableness.”

(b) Appellant alleges that his trial counsel failed to introduce evidence on his behalf. The record reveals that after the State rested its case, appellant’s counsel conferred with appellant and announced to the court that the defense would present no evidence. “ ‘Trial strategy and tactics do not equate with ineffective assistance of counsel. . . .’ [Cit.]” Nolan v. State, 204 Ga. App. 170, 172 (419 SE2d 72) (1992). Appellant’s trial counsel did not testify at the hearing on appellant’s motion for new trial. Although appellant testified, he did not articulate any specific defense which his counsel failed to raise. Thus, appellant failed to show “that the purported deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy. . . .” Nolan, supra.

(c) We find no merit to appellant’s argument that his trial counsel was deficient in not moving to disqualify the district attorney. The district attorney’s wife knew the victim and the victim’s mother and was called as a witness to testify about a conversation she had with the victim’s mother and the investigating officer. We find no basis on which the district attorney should have been disqualified based on his wife’s marginal involvement in the case.

(d) Appellant alleges that his attorney’s performance was deficient because he did not submit any requests to charge. Upon review of the court’s charge, it appears that the trial court covered all of the law applicable to the case. Appellant has not specifically stated what charge his attorney should have requested, and the failure to file written requests to charge does not, without more, make trial counsel ineffective. See Randall v. State, 207 Ga. App. 637 (428 SE2d 616) (1993).

(e) Three of appellant’s alleged deficiencies arise from his attempted escape. The record reflects that during a recess appellant escaped but was captured approximately one-and-one-half hours later. Appellant contends that his attorney should have moved for a mistrial, that he should have voir dired the jury on their knowledge of the events and that he should not have suggested that appellant waive his presence during the remainder of the trial. Following the escape attempt, the trial judge gave appellant and his counsel time to confer. The only parts of the trial remaining were closing arguments and the court’s charge. After conferring with appellant, appellant’s attorney suggested that appellant be allowed to waive his presence for the remainder of trial. The trial judge questioned appellant about whether he understood his right to be present during the trial and the effect of his waiver of that right. Appellant indicated that he understood his right to be present and that he waived his presence because it was preferable to being in shackles. The record also reveals that one of the jurors saw the escape and was immediately sequestered from the other jurors. The trial judge spoke directly to appellant about whether he wanted that juror replaced with an alternate, and appellant stated that he agreed to the replacement of the juror. There is no evidence that any of the other jurors witnessed the events surrounding the escape. We find no merit to appellant’s arguments that his counsel was in any way deficient in the way he handled the events following appellant’s escape attempt.

(f) Appellant also argues that his counsel waived appellant’s right to a Brady inspection. Specifically, appellant argues that certain inconsistent statements by the victim were not given to appellant. However, the record reveals that appellant’s counsel filed a Brady motion, and that all exculpatory material was turned over to appellant’s counsel. Moreover, the prosecutor stated in his place the nature of the victim’s inconsistent statements. Accordingly, we find no merit to appellant’s argument.

(g) Appellant’s contention that during the voir dire his counsel should have moved to strike a parole officer for cause is without merit. The nature of a parole officer’s work does not necessarily impute a possible bias to the parole officer which would require his ex-cusal for cause. See Culbertson v. State, 193 Ga. App. 9 (386 SE2d 894) (1989).

(h) Appellant argues that his counsel failed to cross-examine the co-defendant about his plea agreement. Decisions on how to conduct cross-examination are matters of trial strategy within the exclusive province of trial counsel after consultation with his client. Ruffin v. State, 201 Ga. App. 792 (2b) (412 SE2d 850) (1991).

(i) Appellant contends that his counsel should have objected and moved for a mistrial when the co-defendant testified that his grandparents kicked him out of the house for hanging around with appellant. The record reflects that appellant’s counsel promptly objected to the testimony, and the trial judge sustained the objection and instructed the jury to disregard it. We cannot conclude that the testimony placed appellant’s character in issue such that a mistrial was required. See Jacobson v. State, 201 Ga. App. 749 (2) (412 SE2d 859) (1991).

(j) Similarly, we find no merit to appellant’s argument that his counsel failed to object and move for mistrial when evidence was interjected regarding satanic worship. Contrary to appellant’s argument, the record reveals that his trial counsel strenuously objected to the testimony. Although the trial judge overruled the objection, we find no deficiency in appellant’s counsel’s handling of the matter.

(k) Although appellant argues that his counsel failed to object to a videotape of the co-defendant’s statement to police, the record reflects that appellant’s counsel did object to the introduction of the videotape and argued zealously against its admission. The trial judge ruled out parts of the videotape but allowed other portions of the tape into evidence over the objection of appellant’s counsel.

(l) Appellant alleges that his trial counsel was deficient in failing to have portions of the videotape transcribed. However, the record does not support appellant’s contention that it was his counsel’s conduct which resulted in the videotape not being transcribed. Furthermore, the tape was admitted into evidence as an exhibit, although appellate counsel has failed to include it as part of the record on appeal. Consequently, we find no merit to this argument.

(m) Appellant argues that his counsel failed to reserve objections to the charge of the court. However, a review of the trial court’s charge reveals that it was complete and adequate, and appellant has failed to show any error in the charge. See Argo v. State, 192 Ga. App. 794 (3) (386 SE2d 545) (1989).

(n) Appellant’s argument that his counsel failed to conduct any meaningful cross-examination is without merit. The record reflects that trial counsel cross-examined some witnesses and declined to cross-examine others. However, these matters were within the province of trial strategy. See Ruffin v. State, supra.

(o) Appellant contends that his counsel should have moved to sever the drug and gun charges from the kidnapping and armed robbery charges because the drug and gun offenses occurred on a different day than the kidnapping and armed robbery. Appellant has failed to show that the charges should have been severed, and we do not find any deficiency in his counsel’s performance in declining to move for a severance of the charges.

(p) Appellant’s argument that his counsel failed to object to evidence of appellant’s juvenile parole is without merit inasmuch as there was no such evidence introduced. Although a witness employed by the Georgia Division of Youth Services testified that he was involved in an attempt to locate appellant and the co-defendant, this testimony did not rise to the level of placing appellant’s character in issue. See Jacobson, supra at 751.

(q) Appellant’s contention that his trial counsel should have requested a charge on equal access is without merit because such a charge was not warranted by the evidence.

(r) The record, which contains appellant’s counsel’s trial file, does not support appellant’s contention that his counsel failed to adequately investigate the case.

(s) Appellant’s argument that his counsel failed to present evidence at sentencing is without merit. Appellant was convicted of kidnapping with bodily injury and received the mandatory life sentence pursuant to OCGA § 16-5-40 (b).

(t) Appellant alleges that his counsel failed to protect his right to arraignment, but fails to support this allegation with argument or citation of authority. Thus, this enumeration is deemed abandoned pursuant to Court of Appeals Rule 15 (c).

(u) Appellant also contends that his counsel failed to interview defense witnesses. Appellant has not shown how any witness alleged to have not been interviewed would have been favorable to his defense, and we find no merit to his argument. See Evans v. State, 207 Ga. App. 358 (427 SE2d 837) (1993).

(v) Finally, appellant’s argument that his counsel failed to discuss the case with him is not supported by the record. Appellant testified during the hearing on the motion for new trial that his counsel visited him at the jail and discussed the case. It is also apparent from the trial transcript that trial counsel discussed various aspects of the case with appellant.

For the foregoing reasons, we find appellant’s claim of ineffective assistance of counsel to be without merit.

Decided November 5, 1993

Reconsideration denied December 15, 1993

Alden W. Snead, J. M. Raffauf, for appellant.

David McDade, District Attorney, Jackie Stanton, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A1372.
    FAIN v. THE STATE.
    (439 SE2d 64)
   Smith, Judge.

Larry Fain was indicted with Michelle Hamilton for the offenses of possession of methamphetamine with intent to distribute, OCGA § 16-13-30 (b), and possession of marijuana, OCGA § 16-13-30 (j) (1)-Immediately prior to trial, Hamilton pled guilty to possession of methamphetamine with intent to distribute. The jury found Fain guilty of both charges.

In the course of investigating information they received regarding drugs at Fain’s home, Snellville police officers verified that Fain was the owner or lessor of the premises; they then posed as trash collectors, riding a garbage truck in order to pick up Fain’s trash on four different occasions. After the trash was collected from Fain’s house it was kept separate from other trash. At the end of Fain’s street, it was transferred to another vehicle and transported to another location for examination. Several suspicious items found in Fain’s trash led the officers to obtain a search warrant for his home. See California v. Greenwood, 486 U. S. 35 (108 SC 1625, 100 LE2d 30) (1988).

Fain and Hamilton were in the house on the morning the warrant was executed. The officers found three plastic baggies containing white powder in Hamilton’s purse, which was on the coffee table in the den. A forensic chemist from the state crime laboratory testified at trial that these baggies contained 5.5 grams of methamphetamine. The officers also found a .357 revolver, a beeper, hypodermic needles, and a mirror on which there was white powder residue, a razor blade, and a straw in the master bedroom; triple beam scales and a white crystal powder commonly used as a cutting agent on a shelf in the master bedroom closet; a fast food tray with a green leafy substance, a spoon containing balls of cotton, a white powdery residue, and a hypodermic needle cap in the master bathroom; numerous baggies with cut-out corners and corners cut from plastic baggies in an unused shower in the master bath; and a plastic baggie containing seeds, identified at trial as marijuana, in the kitchen.

At trial, Hamilton testified that although she previously had used it, Fain “turned her on” to methamphetamine, supplying her with the drug basically in return for her “companionship.” She began spending more and more time at his home and had her own room there. She denied ever actually witnessing Fain selling methamphetamine, but she related conversations she had with Fain regarding his distribution of the drug to others. She testified that the two baggies of methamphetamine found in her purse had been given to her by Fain; she found the third in the laundry room and took it.

Detective Harold Thomas testified that after arresting Fain, he had advised him of his rights, told him traces of drugs had been found in the bedroom, and asked him where the rest of the drugs were. Fain at first denied there were more drugs in the house but then stated “[t]here’s a gram back there,” directing attention to the bathroom. However, no more drugs were found in the bathroom. Notes extracted from Fain’s garbage, as well as notes found in the living room, were introduced into evidence. Among other things, the notes contained lists of names followed by monetary amounts. Testimony of police officers established that such notes were commonly used as normal bookkeeping practices in the drug trade.

1. In three enumerations of error, Fain raises the general grounds. He makes several arguments in support of his contention that the evidence was insufficient to authorize the jury to convict him, first arguing that no evidence existed that the white powdery substance found on various items in his bedroom was methamphetamine. However, the methamphetamine charge against Fain was based on his constructive possession of the drugs found in Hamilton’s purse and not on the white powder on the items found in his bedroom. The items found in his bedroom, commonly used drug paraphernalia, were relevant to show Fain’s involvement with drugs.

Fain also maintains that only Hamilton’s testimony connected him with the drugs found in her purse and, since she was an accomplice, it was necessary for her testimony to be corroborated in order to support his conviction. OCGA § 24-4-8; see Claybrooks v. State, 189 Ga. App. 431, 432 (375 SE2d 880) (1988). The principle Fain cites is correct. In Georgia, a defendant may not be convicted on an accomplice’s uncorroborated testimony. The required corroboration must be “independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty.” (Citations and punctuation omitted.) Id. However, OCGA § 24-4-8 provides that “corroborating circumstances may dispense with the necessity for the testimony of a second witness.” Slight corroborative evidence from an extraneous source is all that is required to support the verdict, and it may be by circumstantial evidence. Bennett v. State, 202 Ga. App. 699 (415 SE2d 310) (1992). It is for the jury to decide whether the evidence offered as corroboration is sufficient to support a conviction, and “[i]f the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said as a matter of law, that the verdict is contrary to the evidence.” (Citations and punctuation omitted.) Cody v. State, 195 Ga. App. 318 (1) (393 SE2d 692) (1990).

In this case, there was no corroborating testimony. Unlike Claybrooks, though, the physical evidence found in Fain’s home, particularly that found in the bedroom occupied by him and the bath used by him, was circumstantial evidence corroborating Hamilton’s testimony that connected Fain with the drugs.

Fain argues as well that four people were living at the house, including his brother and his daughter, all of whom had equal access to the places where drugs were found. However, it was undisputed that Fain was the owner or lessor of the premises, raising a rebuttable presumption that the drugs were his. Mobley v. State, 190 Ga. App. 771, 773 (1) (380 SE2d 290) (1989). No evidence was introduced to show that any of the other occupants of the house had access to Fain’s bedroom or bathroom, where numerous items of drug paraphernalia were found. “The equal access rule which appellant invokes [cits.] applies for the most part to areas which are open, notorious and easily accessible to other persons. The [items of drug paraphernalia were] found in a bedroom in areas where accessibility was that of the occupants of the bedroom and not others. [Cits.]” Cantrell v. State, 204 Ga. App. 330, 331 (419 SE2d 141) (1992). Although it is arguable that Hamilton, who spent some time in Fain’s bedroom with him, had equal access to the items, the equal access doctrine does not apply to those charged with being in joint constructive possession of contraband. Jackson v. State, 188 Ga. App. 834, 838-839 (5) (374 SE2d 777) (1988). The jury was charged on sole and joint possession, actual and constructive possession, and equal access. They were authorized to conclude that Fain and Hamilton were in joint possession of methamphetamine with intent to distribute and that Fain possessed marijuana. See Butler v. State, 192 Ga. App. 710, 712-713 (2) (386 SE2d 371) (1989).

2. Fain contends the trial court erred in the admission of certain evidence over objection.

(a) He argues that it was error to admit into evidence the notes found in his trash, because no evidence showed that they were written by him and others had equal access to the trash. Even assuming the equal access doctrine may be applied in the context of the admissibility of such evidence, we find no error. Although it is true that no witness identified the handwriting on the notes as Fain’s, the State verified that Fain was the owner or lessor of the premises from which the garbage was taken, and similar notes were found in the living room on an envelope addressed to Fain. Since Fain was not on trial for possessing the notes, the State was not required to prove Fain’s possession of the notes beyond a reasonable doubt. Brooks v. State, 197 Ga. App. 194, 195 (2) (397 SE2d 622) (1990). The notes were relevant to the issues of whether probable cause existed for the search warrant and whether Fain was distributing drugs. Whether they were written by Fain or by another person was an issue affecting the weight of the evidence, not its admissibility, and therefore was for the jury. We find sufficient foundation for the notes’ admission into evidence. Id. at 195-196 (2).

Decided November 29, 1993

Reconsideration denied December 15, 1993

Glyndon C. Pruitt, for appellant.

Daniel J. Porter, District Attorney, David Keeton, Assistant District Attorney, for appellee.

(b) Fain maintains the trial court erred in admitting certain photographs depicting some of the objects found in the search of his house. These included the depiction of a white powdery substance that was never identified as methamphetamine. The transcript does not support Fain’s assertion that a police officer testified in a manner that suggested or conveyed the impression that the substance was methamphetamine. In identifying the photographs, the officer consistently used the terms “white powder residue,” “white powder substance,” and “white powdery substance.” References to drugs were made in the course of later explaining, hypothetically, the ways in which the various items of paraphernalia found in Fain’s home could be used. However, Fain objected to the introduction of the photographs before these explanations were made. We find no error in the introduction of the photographs.

3. Because Fain did not request a charge on the necessity of the corroboration of accomplice testimony, his contention that the trial court erred in failing to give such a charge lacks merit. Harvey v. State, 205 Ga. App. 863, 864 (2) (424 SE2d 18) (1992). See Bone v. State, 178 Ga. App. 802, 808 (6) (345 SE2d 46) (1986).

Judgment affirmed.

Beasley, P. J., and Cooper, J, concur.


text:
    A93A1395.
    ROSSER v. THE STATE.
    (439 SE2d 72)
   Smith, Judge.

Phillip Bernard Rosser a/k/a Rayvaris Anderson and a co-defendant were convicted of trafficking in cocaine, OCGA § 16-13-31 (a) (1), as well as other charges. Rosser appeals following the denial of his motion for new trial. He asserts that the admission of certain hearsay statements offered by a State’s witness based on “necessity” violated his right to a fair trial and his right to confront the witnesses against him. We agree and reverse.

1. On February 22, 1991, Marietta-Cobb-Smyrna narcotics agent Robert Jones received information regarding illegal drug activity at a certain apartment in Cobb County. Jones determined that the apartment was leased to appellant’s sister, Angela Rosser. Jones observed Phillip Rosser and a co-defendant, Harry Shannon Butler, enter and leave the apartment several times in a vehicle described to Jones as one allegedly used by the suspects. He also testified that some pager numbers were traced to a “Phillip Brown” at the same apartment.

On February 28, 1991, Jones went through discarded garbage outside the apartment unit under investigation. The address on a letter in the garbage connected it to the apartment. He also found rolling papers, as well as a razor blade that field-tested positive for cocaine. Jones then procured a search warrant for the apartment and executed it later that same day with several other agents.

When Jones and the other officers first arrived at the apartment, the vehicle used by Rosser and Butler was not present. The officers decided to wait for the suspects to return. Two officers watched the apartment in an unmarked car while Jones and the other officers waited across the street in a parking lot. From across the street, Jones observed Rosser and Butler enter the complex as expected, but he could not make radio contact with the officers watching the apartment.

After waiting for a time then considered sufficient for Rosser and Butler to enter the apartment, Jones and the other uniformed officers drove into the complex, but they found Rosser and Butler standing in the parking lot outside the apartment. The two were arrested in the parking lot and taken into the apartment. The two gave false names to police when informed that the search warrant bore their names, but later acknowledged their true identities. A search of Rosser’s person produced a small amount of marijuana and $1,806 in cash. Both men were wearing large amounts of jewelry and also had pagers.

Rick Hardin, a Marietta police officer assigned to the search team, testified that during the course of the search, he learned that crack cocaine was stored outside the apartment. He searched the apartment complex grounds and located a McDonald’s sack containing 354 “hits” of crack cocaine outside the apartment building, about 25 feet from the doorway to the building, under a bush partially covered by some pine straw. Inside the apartment, Hardin located 250 empty plastic baggies in the hallway and in a closet.

Over objection, Agent Jones was recalled and testified that, after execution of the search warrant at her apartment, Angela Rosser told him that she knew her brother was using her apartment for drug activities and that her brother came in and grabbed a McDonald’s bag just before the police entered her apartment.

“Confrontation in a criminal trial includes the right to ask questions and secure answers from the witness confronted. [Cit.] However, the United States Supreme Court has not interpreted ‘confrontation’ to signify the exclusion of every hearsay exception, and has provided the following method to resolve confrontation challenges based on the admission of hearsay testimony: ‘The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. (Cits.) The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that “there is no material departure from the reason of the general rule.” ’ Ohio v. Roberts, 448 U. S. 56, 65 (100 SC 2531, 65 LE2d 597) (1980).” Higgs v. State, 256 Ga. 606, 608-609 (7) (351 SE2d 448) (1987).

The threshold question, unavailability of the witness, is typically established “because of death or in cases where the witness may not be compelled to testify, as in the case of a wife who cannot be compelled to testify against her husband.” Glisson v. State, 188 Ga. App. 152, 154 (2) (372 SE2d 462) (1988). The case of Adams v. State, 191 Ga. App. 16 (381 SE2d 69) (1989), relied upon by the State, establishes that a declarant may be deemed unavailable to testify for “necessity” purposes because she could not be found. The witness in Adams, just as in the present case, was presumed to be alive and was otherwise compellable to testify.

In finding the “necessity” requirement satisfied in Adams, this court observed that “[t]he trial court made every effort to locate Thibodeau and obtain her attendance in court. The trial judge, after interrogating the child’s (and appellant’s) family, found that they were deliberately hiding the child, shifting her from place to place and lying to deputies and others, to prevent her from testifying. The trial was continued to secure Thibodeau’s presence, and the child’s grandmother, with whom the child had been living, was ordered to produce her. When she was not produced, the court held the child’s grandmother in contempt, sentencing her to 10 days in jail. Not until all avenues were exhausted did the trial court allow the statement to be admitted into evidence.” Id. at 17 (2).

Adams does not attempt to establish minimal criteria for establishing “necessity” under circumstances where the party offering hearsay testimony asserts that the declarant is unavailable because she cannot be located. In Ohio v. Roberts, supra, the United States Supreme Court discussed the unavailability requirement and held that “ ‘the lengths to which the prosecution must go to produce a witness . . . is a question of reasonableness.’ [Cit.] The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness.” Id. 448 U. S. at 74.

In determining whether minimal good-faith efforts were made in this case, we first observe that the missing declarant was not on any witness list provided to Rosser by the State pursuant to a timely request under OCGA § 17-7-110. The State knew, or should have known, that the admission at trial of statements made to police by Angela Rosser on the day of the search and arrests required that Ms. Rosser be presented as a witness, if available. The State likewise knew, or should have known, that failing to place Ms. Rosser on the witness list implied that any statements she made outside the defendants’ presence would not be relied upon at Rosser’s trial. In considering whether good faith efforts were made to find this witness, we cannot ignore the State’s failure to acknowledge her status as a witness in the first instance.

In addition, an investigator for the district attorney’s office testified that he spent a total of four-and-one-half to five hours searching for Ms. Rosser. The investigator first determined that she no longer lived at the apartment where the statements were originally made. He checked the Criminal Justice Information System (CJIS) and found that Ms. Rosser had completed a sentence served on probation for a prior shoplifting conviction. The investigator then contacted the probation department and obtained a Marietta address. The investigator subsequently found that Ms. Rosser was no longer living at that address and that the house was for sale. From the yard sign, the investigator contacted a Kathryn Samanski, who informed him that Ms. Bobbie Rosser had been living in the house and that Angela, her daughter, had been living there with her. Ms. Samanski suggested that the investigator contact the “section eight housing department.” A supervisor confirmed that Bobbie Rosser was no longer on the program and informed the investigator that Cobb County Legal Aid was also looking for Bobbie Rosser. Attorneys there likewise had lost contact with Bobbie Rosser. It appears that no further efforts were made to find the declarant prior to trial.

Phillip Rosser was indicted on December 3, 1991. There is no suggestion that the State made any effort to keep track of Angela Rosser prior to the State investigator’s failed efforts to locate her. Those efforts were initiated on June 18 or 19, 1992. The trial began on June 22, 1992. The State does not suggest that the significant delay in bringing the case to trial was due to actions on Rosser’s part. No subpoena was ever served on Ms. Rosser. The State in effect argues that Angela Rosser’s prior statements were admissible at trial due to “necessity” despite the complete lack of any evidence showing that Ms. Rosser herself was considered necessary to the State’s case until a few days prior to trial — a trial not commenced until over six months from the date Rosser was indicted. We cannot find a good faith undertaking to locate and present Angela Rosser at the trial of Phillip Rosser under the circumstances presented. Ohio v. Roberts, supra. Compare Adams v. State, supra. The State cannot simply create a “necessity” to allow hearsay into evidence at trial by its own lack of diligence in keeping track of its witnesses. We must reverse the conviction, and appellant is entitled to a new trial.

Decided December 1, 1993

Reconsideration denied December 15, 1993.

Alan J. Baverman, for appellant.

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

2. Rosser apparently concedes that if Angela Rosser’s statements were held properly admitted at trial, the evidence was sufficient to convict him. We agree. Rosser instead argues that absent the introduction of that hearsay, the evidence was insufficient to convict him of trafficking in cocaine. However, even assuming this to be the case, “in making a determination as to the sufficiency of the evidence the appellate court considers the evidence in its entirety, including, not excluding, that admitted on trial but found inadmissible on appeal. [Cit.]” Glisson v. State, 192 Ga. App. 409, 410 (385 SE2d 4) (1989). This enumeration presents no error for review.

Judgment reversed.

Beasley, P. J., and Cooper, J., concur.