text:
    A97A2384.
    JACKSON v. THE STATE.
    (496 SE2d 315)
   Blackburn, Judge.

Anthony Leroy Jackson appeals his convictions for possession of cocaine with intent to distribute and possession of a firearm by a convicted felon, contending that both his counsel and the trial court committed numerous errors. For the reasons discussed below, we reverse Jackson’s convictions.

On May 2, 1989, Investigators Donald Branch and Ron Lee of the Metro Drug Squad observed Jackson driving his car in an erratic manner on the freeway. Suspecting that Jackson was driving under the influence of alcohol, Branch and Lee contacted Trooper Neal Jump of the Georgia State Patrol for assistance by radio. Jump, in turn, contacted Trooper Michael Young. Exiting the freeway, Jackson pulled into the parking lot of a fast food restaurant without properly using his turn signal, got out of his car, and proceeded with haste toward the restaurant entrance. Young, Jump, Lee, and Branch followed Jackson to the parking lot, and these officers were later joined by Agent Andy Hay of the Georgia Department of Revenue Alcohol-Tobacco Unit. Young intercepted Jackson before he went inside the restaurant and escorted him to Jump’s patrol car. When Jump asked for Jackson’s driver’s license and registration, Jackson replied that his license had been suspended and that his registration was in the car. Jump then informed Jackson that he was under arrest for driving with a suspended license, and Jackson was searched. The search revealed that Jackson was carrying a plastic bag containing twenty-eight smaller bags of crack cocaine, another plastic bag containing approximately forty more pieces of crack cocaine, and six rounds of .357 caliber ammunition. Jackson then consented to allow other officers on the scene to search his car for the registration. During this search, a .357 caliber handgun was found under the front passenger’s seat.

Jackson’s attorney, John Davis, filed a motion to suppress the evidence found on Jackson and in his car. This motion was denied, and Jackson was convicted on May 24, 1990. Davis filed a motion for new trial on Jackson’s behalf, generally alleging insufficiency of the evidence. There was no hearing on the motion at that time. Jackson then served a portion of his prison sentence, after which he was paroled. He did not file an amended motion for new trial to allege ineffective assistance of counsel until December 9, 1996, after his parole had been revoked. By that time his attorney, Davis, had died.

1. In his first enumeration of error, Jackson contends that his motion for new trial should have been granted due to ineffective assistance of counsel. “In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), [Jackson] must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. See also Bowley v. State, 261 Ga. 278 (4) (404 SE2d 97) (1991). Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.” (Punctuation omitted.) Stephens v. State, 265 Ga. 120, 121-122 (2) (453 SE2d 443) (1995). Furthermore, “[t]here is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Punctuation omitted; emphasis supplied.) Binion v. State, 222 Ga. App. 333, 334 (1) (474 SE2d 208) (1996).

Jackson complains that his trial counsel improperly: (1) failed to conduct an investigation or interview certain witnesses; (2) failed to prepare a motion to suppress; (3) waived Jackson’s right to make an opening statement at trial; (4) failed to object to improper evidence and testimony; (5) failed to move for a bifurcation of the trial on the separate charges; (6) failed to move for a severance of the separate charges; (7) failed to advise Jackson of his right to testify at a Jackson-Denno hearing and did not call him to do so; (8) failed to allow Jackson to participate in determining trial strategy; (9) failed to file any requests to charge; (10) failed to request a charge with regard to Jackson’s right to remain silent; (11) failed to pursue dismissal of the charges due to the State’s failure to afford Jackson a speedy trial; (12) failed to cross-examine Branch and Jump at the Jackson-Denno hearing; arid (13) failed to request a charge providing limiting instructions with regard to Jackson’s prior felony convictions which were admitted into evidence.

Jackson’s claims are either legally or factually untenable. “It is not necessary to address specifically and individually each and every one of these numerous instances of challenged trial tactics. It is sufficient to note that strategic choices made after thorough investigation are virtually unchallengeable.” (Punctuation omitted.) Stephens v. State, supra at 122 (2). Moreover, Jackson has not carried his dual burden in claiming ineffective assistance of counsel — showing both error and harm. As the cocaine and the weapon which Jackson possessed were properly admitted, see Division 6 hereof, infra, there was substantial evidence of his guilt irrespective of the alleged errors committed by Davis, and Jackson has not shown that there was a probability that the outcome of the trial would have been different absent such alleged errors.

Furthermore, as Jackson did not raise his allegations of ineffective assistance of counsel for more than six years after his conviction, during which time Davis died, “[t]rial counsel [could not be] called to explain his conduct and [Jackson] adduced no expert testimony to show that the choices made during trial fell below the standard of reasonably effective assistance. . . . [Jackson’s] trial counsel made such decisions and, that he did so, affords [Jackson] no ground for a new trial. If we continue to second guess trial counsel on strategy and tactics when counsel have faithfully and diligently performed their function, we would have a proliferation of appeals on the flimsiest of grounds. It is important for appellate judges to remember that a defendant is entitled to a fair trial but not a perfect one, for there are no perfect trials.” (Punctuation omitted.) Green v. State, 218 Ga. App. 648, 651 (3) (b) (463 SE2d 133) (1995). See Sterling v. State, 223 Ga. App. 490, 491 (478 SE2d 145) (1996) (there is nothing to review on appeal where trial counsel does not testify at motion for new trial hearing).

2. In his second enumeration of error, Jackson contends that the trial court improperly admitted a statement made by Jackson after he invoked his right to remain silent under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), and that this improperly admitted statement placed his character into evidence in contravention of OCGA § 24-9-20 (b). During the drive to jail, Trooper Jump asked Jackson where he had been going before he was arrested. Jackson responded that “he could not say or his name would be on a tombstone; it was better to be quiet.” Pretermitting the efficacy of Jackson’s claim that this statement was elicited after he invoked his right to remain silent, Jackson advances no arguments as to how the absence of this testimony at trial would have resulted in a different outcome in his case. Given the weight of the evidence against Jackson, these claims, even if valid, were not reversible error. Cuzzort v. State, 215 Ga. App. 553, 557 (4) (451 SE2d 496) (1994).

3. In his third enumeration of error, Jackson claims that the trial court erred by allowing testimony both with regard to his post-arrest silence after being advised of his Miranda rights and with regard to his refusal to sign a waiver of such rights. Jackson contends further that the trial court erred by not granting a mistrial or giving the jury curative instructions with regard to this allegedly inadmissible testimony. Jackson, however, has waived the right to complain about this decision of the trial court because no objection was raised at trial. Heard v. State, 204 Ga. App. 757, 760 (5) (420 SE2d 639) (1992). Furthermore, even if the trial court did err in the manner which Jackson contends, that error was harmless in light of the overwhelming evidence of Jackson’s guilt. Sorrells v. State, 267 Ga. 236, 239-240 (5) (476 SE2d 571) (1996).

4. In his fourth enumeration of error, Jackson contends that the trial court failed to hear his motion for a new trial within a reasonable time. Although Jackson initially filed a motion for new trial on May 31, 1990, that motion alleged only the general grounds of insufficiency of the evidence. Jackson has not raised those grounds in this appeal. Jackson’s amended motion for new trial, which included all of the specific claims considered herein, was not filed until December 9, 1996, and the motion was considered at a hearing that same day. Accordingly, Jackson has not shown that he was harmed by the fact that the motion was not heard until after he chose to amend it. Furthermore, Jackson cites no legal authority in support of this contention. See Court of Appeals Rule 27 (c).

5. In his fifth enumeration of error, Jackson claims that he is entitled to a discharge and acquittal for lack of prosecution and denial of a speedy trial pursuant to OCGA § 17-7-170. This claim is patently erroneous. The record reflects that Jackson demanded a jury trial on April 23, 1990, and received it on May 18, 1990.

6. In his sixth enumeration of error, Jackson contends that the trial court erred in denying his motion to suppress because the stop and subsequent search and seizure which led to his arrest were illegal. “In reviewing a trial court’s decision on a motion to suppress, our responsibility is to ensure that there was a substantial basis for the decision. In so doing, we may consider all relevant evidence of record, wherever located, including evidence introduced at a suppression hearing and that introduced at trial; we construe the evidence most favorably to uphold the findings and judgment, and must adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. Further, since the trial court sits as the trier of facts, its findings will not be disturbed if there is any evidence to support them.” (Punctuation omitted.) Sayers v. State, 226 Ga. App. 645 (487 SE2d 437) (1997).

Jackson argues that it was improper for Branch to testify at the motion to suppress hearing with regard to statements made by Lee and Hay who searched Jackson and his car. As a result, Jackson contends that the court’s ruling was based on nonprobative hearsay. While it is true that Lee and Hay did not testify at the motion to suppress hearing, they did testify at the subsequent trial, replicating and corroborating Branch’s previous testimony. As this Court considers all evidence of record in reviewing the trial court’s denial of Jackson’s motion to suppress, including testimony elicited at the motion to suppress hearing as well as that heard at the trial, Sayers, supra, Jackson’s contention that the motion to suppress ruling was based on nonprobative hearsay is meritless. We also note that Jackson renewed his motion to suppress during his trial, and it was also denied at that time.

Furthermore, Jackson’s stop was not pretextual. Officers Branch and Lee witnessed Jackson driving erratically on the freeway, which gave them a reasonable suspicion that Jackson might be driving under the influence of alcohol. In addition, Officer Young witnessed Jackson make an improper turn into the fast food restaurant without employing his turn signal. As such, Jackson’s stop was valid.

7. In his seventh enumeration of error, Jackson contends that the court erred by allowing the State to reopen its case following Jackson’s motion for a directed verdict. “Whether to reopen the evidence is a matter which rests within the sound discretion of the trial court. Carter v. State, 263 Ga. 401, 402 (2) (435 SE2d 42) (1993). A trial court’s ruling in this regard will not be reversed in the absence of an abuse of discretion. Page v. State, 249 Ga. 648, 651 (2) (c) (292 SE2d 850) (1982). Whether there has been a reversible abuse of discretion requires a consideration of the totality of the circumstances. Gresham v. State, 204 Ga. App. 540, 542 (2) (420 SE2d 71) (1992).” Carruth v. State, 267 Ga. 221, 222 (476 SE2d 739) (1996). Furthermore, a case may be reopened to offer evidence “either in rebuttal or in corroboration of evidence already introduced by the state.” Page v. State, supra at 651 (2) (c). In the matter at hand, the State was allowed to reopen its case to call Officer Young, whose testimony corroborated the set of events surrounding the stop of Jackson described by the other officers on the scene. The trial court did not abuse its discretion in reopening the evidence.

8. In his ninth enumeration of error, Jackson claims that the court’s charge to the jury that “[y]ou may infer in this case, if you wish to do so, that the acts of a person of sound mind and discretion are the products of his will and you may infer, if you wish to do so, that a person of sound mind and discretion intends the natural and probable consequences of his act” was improper and burden shifting. Again, this contention is clearly untenable. “As our Supreme Court . . . stated in Isaacs v. State, 259 Ga. 717 (386 SE2d 316) (1989), when deciding whether a charge on intent violates Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979), the court must decide whether the alleged erroneous charge contains language of command,’ which requires the jury to find intent if a certain fact is proven, or if the charge makes it clear that it is within the jury’s discretion to find intent from the facts proved and that the State has the burden of proving intent. [Cit.] The disputed charge makes it clear that the State has the burden of proving intent.” Fortson v. State, 201 Ga. App. 272, 273 (1) (410 SE2d 774) (1991). As the court instructed the jury that “intent or intention . . . must be proven by the State beyond a reasonable doubt” directly before giving the charge in question and did not use “language of command,” Jackson’s contention that the charge was burden shifting was erroneous.

9. In his tenth enumeration of error, Jackson claims that the trial court erred in failing to give a curative instruction at any time after the State’s witnesses were allowed to testify as to his invocation of his right to remain silent and his refusal to sign a waiver of his Miranda rights. Jackson made no request for such instructions and did not raise an objection at trial. However, even if Jackson had preserved the right to complain about this matter, the error, if it existed, was not a reversible one due to the overwhelming evidence of guilt. See Sorrells, supra.

10. In his eleventh enumeration of error, Jackson contends that the court erred in charging the jury regarding the offense of possession of a firearm by a convicted felon. Jackson, however, provides no legal authority or argument in relation to this contention. As such, it must be considered to have been waived. See Court of Appeals Rule 27 (c).

11. In his twelfth enumeration of error, Jackson claims that the charge given by the court on possession of a firearm by a convicted felon eliminated reasonable doubt as the appropriate standard with regard to that count. However, in making this claim, Jackson cites one portion of the court’s charge in isolation. “The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same.” (Punctuation omitted.) Hill v. State, 205 Ga. App. 475, 476-477 (3) (422 SE2d 564) (1992). Prior to instructing the jury with the portion of the overall charge cited by Jackson, the court explained that the burden of proof rested upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. Accordingly, Jackson’s claim is meritless.

Decided January 22, 1998.

Harrison & Harrison, Anthony L. Harrison, Steven L. Morgan, for appellant.

Stephen D. Kelley, District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

12. In his eighth enumeration of error, Jackson contends that the trial court erred in failing to give limiting instructions to the jury regarding admitted evidence of Jackson’s prior convictions even though no such charge had been requested by defendant. This argument has merit. Where the State elects to use similar transactions as evidence in the present case, the trial court must instruct the jury explaining the limited purpose for the admission of the similar transactions evidence whether or not requested by the defendant. This case is controlled by Hinson v. State, 229 Ga. App. 840 (494 SE2d 693) (1997). “[T]he trial court committed reversible error in failing to give, sua sponte, a limiting instruction contemporaneous with the admission of extrinsic acts or similar crimes evidence.” Id. at 842. Accordingly, Jackson’s convictions must be reversed and remanded for a new trial.

For the reasons set forth in Division 12, supra, Jackson’s convictions for possession of cocaine with intent to distribute and possession of a firearm by a convicted felon are hereby reversed.

Judgment reversed.

Pope, P. J., and Johnson, J., concur.

       Jackson drafted his motion to suppress pro se. However, Davis filed the motion on Jackson’s behalf and represented Jackson at the hearing.

       Although Jackson contends that his deceased attorney did not properly prepare and investigate his case, Davis’ assistant at trial, Jan Whorton, testified that it was Davis’ habit to interview his clients at length prior to a trial and that Davis’ file indicated that he had interviewed Jackson. In support of his claim, Jackson principally argues that Davis failed to call certain witnesses to testify on his behalf. However, even assuming that such witnesses existed, Jackson has not shown that Davis’ decision not to call them was not trial strategy. Furthermore, Jackson has not proven to what such witnesses would have testified had they been found.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A97A2495.
    GRIFFETH v. THE STATE.
    (496 SE2d 309)
   Beasley, Judge.

In Griffeth v. State, 224 Ga. App. 462, 463 (2) (480 SE2d 889) (1997), we affirmed defendant’s conviction but remanded the case to the trial court because it erred in determining that Griffeth failed to establish a prima facie case of discrimination on the basis of race in jury selection under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

“To evaluate claims that the state or defendant used peremptory challenges in a racially discriminatory manner, the trial court must engage in a three-step process. The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent.” (Footnotes omitted.) Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996).

On remand, the court ruled that the State articulated sufficiently race-neutral reasons for its exercise of the peremptory strikes in question so that Griffeth failed to prove discriminatory intent.

“The venire from which the jury was selected was twenty percent black (six of thirty), and the jury which was selected and tried the case was approximately seventeen percent black (two of twelve). In selecting the jury, the State exercised four of its six peremptory strikes. Three of the four strikes exercised by the State were used to strike three of the black potential jurors. Of the remaining three black potential jurors presented for selection, two were accepted by the State and Griffeth, and one was accepted by the State but struck by Griffeth.” Griffeth, supra at 464.

Here, as in such cases as Burgess v. State, 194 Ga. App. 179, 180 (390 SE2d 92) (1990), voir dire was not transcribed, and the post-trial hearing was conducted based upon recollection. Griffeth challenged the State’s exercise of peremptory strikes against two black jurors. The prosecuting attorney explained that he struck these two jurors because they had relatives then being prosecuted either by the district attorney’s office or in juvenile court. Additionally, the prosecutor stated that there was one white juror who was peremptorily struck for the same reason and two others who would have been so struck but one was excused for cause and the other was not reached. When Griffeth challenged the persuasiveness of the reason given on the ground that the prosecutor had not questioned any prospective jurors on this subject during voir dire, the prosecutor responded that he had obtained the information otherwise, from his investigators, and that no such questions were asked because the State wished to remove all jurors so situated and had more than enough peremptory challenges to do so.

Griffeth contends the court erred in finding that the proffered reason was sufficient to rebut his prima facie case, because the prosecutor did not question the, jurors to confirm that they were in fact related to, or living at the same address as, or aware of, the individuals being prosecuted. Griffeth places primary reliance on Congdon v. State, 262 Ga. 683 (424 SE2d 630) (1993).

“In Congdon, [supra,] the prosecutor admittedly predicated his exercise of peremptory strikes upon a racially stereotypical belief that, as the result of an unrelated criminal investigation, all black residents of a particular neighborhood were prejudiced against the State’s white prosecuting witness.” (Emphasis omitted.) Smith v. State, 264 Ga. 449, 453 (4) (448 SE2d 179) (1994). The Supreme Court held that “ ‘[m]ere place of residence, or any other factor closely related to race, should not be regarded as a legitimate basis for exercising peremptory challenges without some corroboration on voir dire that the challenged venirepersons actually entertain the bias underlying the use of that factor.’ [Cits.]” Congdon, supra at 685.

Congdon is distinguishable because the prosecutor’s reason for exercising the peremptory strikes in this case was not related to race. “Close relations with an individual who has been in trouble with the law is a gender- and race-neutral reason sufficient to overcome a prima facie case. [Cit.]” Jackson v. State, 220 Ga. App. 98, 99 (469 SE2d 264) (1996). The prosecutor explained his non-exploration of this subject on voir dire when he stated that he had léarned that close relations existed between individuals in trouble with the law and a number of prospective jurors, and he intended to strike them all. He was not required to corroborate the truth of this information through questioning of the prospective jurors or, due to its nature, to explore whether it would affect their consideration of Griffeth’s case.

“ ‘Peremptory strikes are intended to give validity to just this type of judgment (on the part of the prosecutor), to conclusions which, while not sufficient to justify a for cause challenge, nonetheless raise the possibility of bias (on the part of prospective jurors).’ [Cits.]” Smith, supra at 454. Moreover, “[t]he law provides that a prosecuting attorney’s explanation, even if it is based upon mistake or ignorance, may be sufficient to rebut a prima facie Batson showing, so long as it is not whimsical or fanciful but is neutral, related to the case to be tried, and a clear and reasonably specific explanation of the legitimate reasons for exercising the challenges.” (Citations and punctuation omitted.) Id. at 453. In this case, as in Smith, “there is no contention that anything in the record would show that the proffered reasons did not apply to each prospective juror. Accordingly, it cannot be said that the explanations even, if based on mistake or ignorance, were whimsical or fanciful.” (Citations and punctuation omitted; emphasis in original.) Id.

Decided January 22, 1998.

Kristopher Shepherd, for appellant.

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellee.

The prosecutor stated, without contradiction, that similarly situated white jurors either were or would have been struck for the same reason. Compare Williams v. State, 262 Ga. 732, 733 (1) (426 SE2d 348) (1993). “The explanation offered for striking each black juror must be evaluated in light of the explanations offered for the prosecutor’s other peremptory strikes, and, as well, in light of the strength of the prima facie case [which was not strong here].” Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987). The fact that the State accepted three of the six black potential jurors without utilizing all of its peremptory strikes lends credence to the State’s assertion that the strikes against the two black jurors were not based on race. Higginbotham v. State, 207 Ga. App. 424, 425 (3) (428 SE2d 592) (1993).

Thus, “[t]he trial court was authorized to conclude that the prosecutor’s explanations were ‘sufficiently race neutral to overcome (appellant’s) accusation of racial discrimination in the exercise of peremptory challenges. (Cit.)’ [Cit.]” Trammel v. State, 265 Ga. 156, 158 (2) (454 SE2d 501) (1995). In other words, “[t]he trial court’s finding in this case that no racial motivation underlay the prosecutor’s exercise of peremptory strikes was not clearly erroneous. . . .” Smith, supra at 454.

Judgment affirmed.

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

       The State used the unchallenged strike to remove a potential juror who was a friend of Griffeth’s father.


author: Birdsong, Presiding Judge.

text:
    A97A2522.
    KING v. THE STATE.
    (496 SE2d 312)
   Birdsong, Presiding Judge.

Stanley King appeals his conviction for possession of methamphetamine in his bodily fluid. See OCGA § 16-13-30 (a). He contends the trial court erred by allowing introduction of evidence concerning a similar transaction regarding a 1984 conviction for sale of methamphetamine; that the trial court erred by its charge on similar transaction; and the trial court also erred by denying his motion for a directed verdict. Held:

1. King first contends the trial court erred by allowing introduction of evidence concerning his 1984 convictions for sale of methamphetamine because the transactions were not so similar that proof of the 1984 offenses proved anything about the present offense. The trial court, however, permitted the State to introduce evidence of the 1984 drug sales because the court found that “both charges involve the possession of methamphetamine, and the Court finds that proof of one tends to prove the other and that the evidence is offered for the purpose of showing intent, bent of mind, motive, and course of conduct.” On appeal, the State contends that the evidence was properly admitted to prove intent and that there is no requirement that the similar transaction and the offense being tried be identical. See Cantrell v. State, 212 Ga. App. 288 (441 SE2d 879); Woolfolk v. State, 202 Ga. App. 59 (413 SE2d 242). Indeed, “[t]he test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character.” (Citation and punctuation omitted.) Maggard v. State, 259 Ga. 291, 293 (380 SE2d 259). “Similarity is an important factor in determining the admissibility of the extrinsic crime; however, it is not the only factor, nor is it necessarily the controlling factor. The ultimate issue for admissibility is whether the evidence of other crimes has relevance to the issues in the trial of the case at bar. Depending on the purpose for which the extrinsic evidence is offered, the State may be required to prove a high degree of similarity between the relevant characteristics of the extrinsic crime and the crime charged, or it may have only the burden of showing a logical connection between the crimes which are essentially dissimilar. Ward v. State, 262 Ga. 293, 295 (2) (417 SE2d 130).” Harris v. State, 222 Ga. App. 52, 54 (473 SE2d 232).

Consequently, proof of a distinct, independent, and separate offense is never admissible unless there is some logical connection between the separate offense and the offense for which the accused is on trial so that proof of the separate offense establishes the offense for which the accused is on trial. Williams v. State, 261 Ga. 640, 641 (409 SE2d 649). To assure a defendant a fair trial on this issue, before evidence of independent offenses or acts may be admitted in evidence, the trial court must hold a hearing pursuant to Uniform Superior Court Rule 31.3 (B) at which the State must show affirmatively as to each independent offense or act it seeks to introduce: (1) the evidence of the independent offense or act is not intended to raise an improper inference about the accused’s character, but will be introduced for a purpose which is an exception to the general rule against inadmissibility, e.g., a system of mutually dependent crimes, or to show guilty knowledge, or identity, or articles connected with the offense, or prior attempts by the accused to commit the same crime upon the same victim, or to prove malice, intent, motive, or state of mind, if such is an element of the offense now charged; (2) there is sufficient evidence to prove the accused committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act that proof of the former tends to prove the latter. After the hearing, the trial court must find specifically on the record that the State has made a satisfactory showing that each of these elements has been made as to each independent offense or act. Williams v. State, supra at 642.

Further, the State must show facts establishing both that the accused committed the independent offense or act and the connection or similarity between the independent offense or act and the offense now charged is sufficient so that proof of the former tends to prove the latter. Stephens v. State, 261 Ga. 467, 468-469 (405 SE2d 483). “Proof of crimes which are similar or are closely connected to the crime charged does tend to establish the crime charged.” (Emphasis in original.) State v. Johnson, 246 Ga. 654, 655 (272 SE2d 321).

Considered in this light, we find that the trial court erred by admitting evidence of King’s 1984 convictions for sale of methamphetamine and other drugs. Even though methamphetamine was involved in the crime at bar and in some of the other drug offenses, that is the end of the similarities among the offenses. The other offenses involved sales and not use of the drug.

We cannot agree with the trial court’s determination. The facts testified to at trial show that other than the fact that the earlier offenses to some extent involved methamphetamines, there are no significant similarities between these offenses. In the earlier offenses, the drugs were sold to an undercover officer. In the present case, King was charged with possession of the methamphetamine in his bodily fluid. Thus, he was using, not selling the drug or possessing the drug for sale. Although the prosecutor urged, and the trial court found, that the prior crime was introduced to prove “intent, bent of mind, motive and course of conduct,” there is nothing about the earlier offense that proved the second. Stephens v. State, supra. Now on appeal the State argues that the prior offense was admissible to prove intent, but the State does not explain how the sale of drugs in 1984 proves the intent to use drugs in this offense. Moreover, while theoretically motive may always be relevant in a criminal prosecution, motive was not an issue in this case, and it would appear the motive to sell drugs might differ substantially from the motive to possess drugs in one’s bodily fluids. In the same manner neither bent of mind nor course of conduct was an issue here unless the prosecution intended to show King’s propensity to commit drug crimes. Under our law, however, that is not a permissible basis for introducing similar transaction evidence. Williams, supra at 641. Although our Supreme Court held in McCord v. State, 268 Ga. 499, 500 (491 SE2d 360), that evidence of a prior similar transaction was admissible to show that appellant’s “propensity for using weapons to escalate a confrontation which he had precipitated,” that is not the same thing as permitting similar transaction evidence to be admitted to show a propensity to commit criminal acts in general or a certain type crime in particular. The holding in McCord is more analogous to admitting this evidence to show scheme, plan, design, and modus operandi. Thus, McCord is distinguishable and not controlling. To read McCord broadly would mean that the exception would have completely swallowed the rule stated in OCGA § 24-2-2. Moreover, although the ten years between the purported similar transactions and the present offense is but a factor to consider in whether evidence of the earlier offenses should be admitted, in this case the dissimilarities and the years between the offenses diminish the reason for admitting this evidence.

King’s defense was that the drug was placed in his coffee without his knowledge or permission, and thus he lacked the requisite criminal intent. We note that if it were permissible to admit the prior drug sales in the trial of this case, then any earlier drug offenses would be admissible in any drug trial. That is not yet our law.

Accordingly, it was error to admit the evidence of the prior transaction, and since it cannot be said that the error was harmless, the conviction must be reversed. Robinson v. State, 192 Ga. App. 32, 34-35 (383 SE2d 593).

2. King also alleges that the trial court’s charge to the jury on the similar transaction constituted reversible error because the charge used the term “offenses” when there was only one allegedly similar transaction and the trial court did not charge the jury properly on the purpose for which the evidence was submitted. In view of our disposition in Division 1, we address this issue because the issue may again arise if the case is retried. We find no error in the trial court’s use of “offenses.” Although there was only one conviction, King, in fact, was convicted of more than one offense. Under the circumstances, use of “offenses” was correct.

In regard to the legal validity of the charge given, the charge was the one King requested. Therefore, he cannot now complain that this charge was given. Garner v. State, 267 Ga. 884, 885 (485 SE2d 729). Moreover, we note that the charge given was the pattern charge suggested by the Council of Superior Court Judges of this state and which has been cited with approval in numerous appellate opinions. Although the more the pattern charge is tailored to the particular case the more helpful it would be to the jury, in this instance we find no error in giving the complete suggested charge as it is unlikely that giving the full charge would confuse the jury or result in harmful error.

3. King further contends that the trial court erred by denying his motion for a directed verdict of acquittal. A motion for a directed verdict in a criminal case should be granted only when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Alexander v. State, 263 Ga. 474, 478 (3) (435 SE2d 187). The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), is the appropriate one to use when the sufficiency of the evidence is challenged, whether the challenge is from the denial of a directed verdict or the denial of a motion for new trial based upon alleged insufficiency of the evidence. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436). On appeal a reviewing court may consider all the evidence in the case (Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743)), and must view the evidence in the light most favorable to the verdict. Humphrey v. State, supra at 527. Review of all the evidence in this manner reveals ample evidence, particularly the laboratory test results and Ring’s statement to the police, from which any rational trier of fact could find beyond a reasonable doubt that Ring was guilty of possession of methamphetamines. Jackson v. Virginia, supra. Accordingly, the trial court did not err by denying the appellant’s motion for a directed verdict of acquittal.

Decided January 22, 1998

Louis M. Turchiarelli, for appellant.

Garry T. Moss, District Attorney, for appellee.

Judgment reversed.

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


author: Ruffin, Judge.

text:
    A97A1890.
    SCHULZE et al. v. DeKALB COUNTY et al.
    (496 SE2d 273)
   Ruffin, Judge.

Carmen Schulze and Albert Scales (“the plaintiffs”) sued DeRalb County, the DeRalb County Board of Commissioners and two DeRalb County paramedics for injuries suffered by their minor son, Albert Scales IV (“Albert IV”). The plaintiffs alleged that as a result of the paramedics’ negligence in timely failing to diagnose Schulze’s pregnancy complications and transport her to the hospital prior to the birth of Albert IV, he suffered from fetal distress and perinatal asphyxia resulting in mental retardation and developmental delays. In addition to averring negligence, the plaintiffs included a breach of implied contract claim relating to the paramedics’ alleged failure “to exercise a reasonable degree of care and skill in the management of the transfer of Carmen Schulze. . . .” The trial court granted the defendants’ motion to dismiss, concluding that the county was entitled to sovereign immunity and the paramedics were entitled to official immunity to the extent they had been sued in their individual capacity. The court also dismissed the plaintiffs’ contract claim on sovereign immunity grounds because the purported contract was implied, not written. The plaintiffs appealed, and for reasons which follow, we affirm.

As it appears that the trial court considered matters outside the pleadings in ruling on the defendants’ motion to dismiss, the motion was converted to one for summary judgment. OCGA § 9-11-12; White House v. Winkler, 202 Ga. App. 603, 605-606 (415 SE2d 185) (1992). Accordingly, we must determine in this appeal whether, under the summary judgment standard of review, the defendants met their burden of “showing that there was no genuine issue as to any material fact and that [they were] entitled to judgment as a matter of law.” (Citations and punctuation omitted.) Id. at 606. In making such determination, we review the evidence de novo. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

The record reveals that at approximately 8:00 a.m. on September 15, 1994, Schulze, who was 33 years of age and pregnant, began experiencing vaginal bleeding. At 8:17 a.m., she called 911 and requested an ambulance. DeKalb paramedics were dispatched and arrived at Schulze’s home at approximately 8:23 a.m. Upon entering the home, the paramedics noted blood on the floor and running down Schulze’s legs. The paramedics delayed transporting Schulze to the hospital in order to find someone to care for Schulze’s small child who was at her home. Schulze was admitted to DeKalb Medical Center at approximately 9:00 a.m. An emergency cesarean section was performed at approximately 9:06 a.m., and Albert IV was delivered at 9:11 a.m. Albert IV suffered from fetal distress and perinatal asphyxia.

1. Pursuant to the 1991 amendment to the Georgia Constitution, “sovereign immunity extends to the state and all of its departments and agencies.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e). This immunity also extends to counties. Gilbert v. Richardson, 264 Ga. 744, 746 (2) (452 SE2d 476) (1994). “The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e).

Additionally, OCGA § 36-1-4 provides that “[a] county is not liable to suit for any cause of action unless made so by statute.” “This includes actions brought under a theory of negligence . . .” as the plaintiffs have asserted in this case. Early County v. Fincher, 184 Ga. App. 47, 49 (2) (360 SE2d 602) (1987).

In their complaint, the plaintiffs did not state what Georgia law they claim made the county liable under a theory of negligence. Nor did the plaintiffs aver that the county waived its immunity by the purchase of insurance. In their response to the defendants’ motion, the plaintiffs asserted that the county waived its immunity to the extent it purchased liability insurance. But, they failed to show the type of liability insurance purchased or under what statutory authority the purchase resulted in a waiver of the county’s immunity. Eventually, in their response brief on appeal, the plaintiffs claimed that the county waived its immunity by purchasing liability insurance as set forth in OCGA § 33-24-51.

OCGA § 33-24-51 (a) provides that “a county ... is authorized in its discretion to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury to any person or for damage to property of any person, or for both arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the . . . county . . . under its management, control, or supervision, whether in a governmental undertaking or not, and to pay premiums for the insurance coverage.” OCGA § 33-24-51 (b) provides that whenever a county purchases insurance as authorized by OCGA § 33-24-51 (a) “to provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties, its governmental immunity shall be waived to the extent of the amount of insurance so purchased.” “OCGA § 33-24-51 (a) gives counties the right to purchase insurance; OCGA § 33-24-51 (b) describes when insurance operates to waive sovereign immunity.” Blumsack v. Bartow County, 223 Ga. App. 392, 393 (1) (477 SE2d 642) (1996).

In granting the defendants’ motion, the trial court held that “no statutory waiver applicable to the facts here has been cited, and none has been discovered by the [cjourt.” We agree. There is no evidence in the record that the county is without immunity pursuant to Georgia law or that the county waived its immunity by the purchase of insurance. Accordingly, we conclude that the county had sovereign immunity, and that this immunity had not been waived.

2. We also hold that the DeKalb County paramedics were entitled to official immunity. “The doctrine of official immunity, developed primarily in Georgia through case law, provides that while a public officer or employee may be personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are wilful, wanton, or outside the scope of his authority. [Cits.]” Gilbert, supra at 752 (6). “ ‘A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.’ [Cit.]” Johnson v. Gonzalez, 223 Ga. App. 646, 647 (478 SE2d 410) (1996).

In light of the above, we conclude the paramedics’ actions in the instant case were clearly discretionary. Upon arriving at Schulze’s home, the paramedics examined the facts: Schulze was bleeding but was capable of walking down stairs and her small child was the only other person at home with her. They exercised personal deliberation and judgment in delaying transportation of Schulze to the hospital for several minutes to make certain that the small child would not be left home alone.

Given that the paramedics’ actions were discretionary, their actions had to be “wilful, wanton, or outside the scope of [their] authority” for there to be no immunity. Gilbert, supra at 752 (6). The plaintiffs do not allege in their complaint, nor is there any evidence, that the paramedics’ actions were wilful, wanton or outside the scope of their authority. Accordingly, they are afforded official immunity.

3. Relying on the Supreme Court of Georgia’s holding in Keenan v. Plouffe, 267 Ga. 791 (482 SE2d 253) (1997), the plaintiffs argue that the paramedics cannot hide behind the shield of official immunity because they were exercising their independent medical judgment in treating Schulze.

In Keenan, a physician operated on a private-pay patient at the Medical College of Georgia Hospital. At the time of the surgery, the physician was also a faculty member at the Medical College. The surgery resulted in brain damage to the patient, for which the patient’s husband sued the physician. The court ruled that the physician was not acting within the course of his official duties as a state employee in treating the patient because the duties he was alleged to have violated were independent of his duties as a professor at the Medical College. Id. at 793. The court concluded that “[b]ecause the purpose of official immunity is not furthered by construing the phrase ‘official duties’ to encompass the exercise of medical discretion with regard to private-pay patients, we decline to construe that phrase to provide protection in this case.” Id. at 796.

While the plaintiffs attempt to apply Keenan to the instant case, the Supreme Court limited the scope of Keenan by stating that “[b]ecause this case involves the exercise of a medical discretion on a private-pay patient that was not controlled by the government employer or by statute, we do not consider whether immunity is appropriate for state-employed physicians who are required to treat particular patients, or who are alleged to have violated governmental, as opposed to medical, responsibilities, or whose medical discretion is controlled or impacted by governmental standards or constraints.” Id. at 796, n. 17. Given the limited scope of Keenan, it is inapplicable to county-employed paramedics who are not physicians and who did not treat a private-pay patient.

Decided January 9, 1998

Reconsideration denied January 23, 1998

The Keenan Law Firm, Don C. Keenan, Charles H. Allen, for appellants.

Jonathan A. Weintraub, Joan F. Roach, Elizabeth T. Marinetti, for appellees.

Additionally, the purpose of official immunity is promoted by extending it to government-employed paramedics. In fact, the legislature, in order to further protect persons rendering emergency care for no remuneration, enacted OCGA § 31-11-8. In providing immunity under OCGA § 31-11-8, the legislature “recognized that insurance for civil liability covered by the exemption would be extremely expensive and difficult to obtain. This problem, combined with the virtually unlimited potential civil liability, could be enough to drive many providers of ambulance service out of the business and greatly discourage others from entering. The effect, in many areas of the state, would be to make emergency ambulance service virtually unobtainable.” Anderson v. Little & Davenport Funeral Home, 242 Ga. 751, 754 (2) (251 SE2d 250) (1978).

Accordingly, we conclude that Keenan is inapplicable in the instant case and that the paramedics were entitled to official immunity for the performance of their discretionary duties.

4. The plaintiffs do not present any argument on appeal concerning the dismissal of the breach of an implied contract claim, and thus any claim of error is deemed abandoned. See Court of Appeals Rules 22 (d) and 27 (c) (2).

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.

       In its order, the trial court stated that it considered “all matters of record” in making its determination.

       OCGA § 31-11-8 (a) provides “[a]ny person, including agents and employees, who is licensed to furnish ambulance service and who in good faith renders emergency care to a person who is a victim of an accident or emergency shall not be liable for any civil damages to such victim as a result of any act or omission by such person in rendering such emergency care to such victim.”


author: Johnson, Judge.

text:
    A97A1946.
    GUSTAFSON et al. v. COTTON STATES MUTUAL INSURANCE COMPANY.
    (496 SE2d 346)
   Johnson, Judge.

Insureds William and Sarah Gustafson appeal the grant of summary judgment to Cotton States Mutual Insurance Company. The superior court found the Gustafsons made false statements on their application for insurance which were material to Cotton States’ acceptance of the risk and which, therefore, barred their recovery. However, we find material issues of fact remain for jury resolution and reverse.

“On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. [Cit.]” Gentile v. Bower, 222 Ga. App. 736 (477 SE2d 130) (1996). In order to prevail at summary, judgment under OCGA § 9-11-56, “the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in the light most favorable to the Gustafsons as nonmovants, the record reveals the following pertinent facts: Sarah Gustafson began looking for a new homeowner’s insurance policy in September 1992 when her previous insurer increased its rates. She contacted Cotton States’ agent Martha Long, a woman who had been Mrs. Gustafson’s long-time acquaintance, neighbor, and co-worker. On September 18, 1992, Mrs. Gustafson completed an application for insurance with Cotton States. There is no evidence that she was given an application to read and fill out. Rather, Long claims to have asked Mrs. Gustafson each of the questions listed on the application and to have accurately recorded her responses. These questions may have been asked over the telephone. Mrs. Gustafson, however, states that Long failed to ask her all of the questions on the application and did not accurately record her answers. Long recalls specifically asking Mrs. Gustafson “whether she or her husband had ever suffered any prior losses.” Mrs. Gustafson recalled telling Long that jewelry had been stolen from her home four years earlier. Yet the application states: “[Q.]7. Has the applicant ever had a fire or theft loss? [A.]7. Y. Comments: 4 yrs. ago, someone broke into house & stole jewelry which was not cov.” Long does not specifically state in her affidavit that she asked about fire losses, only that Mrs. Gustafson did not disclose any. Mrs. Gustafson said she did not mention fire losses because Long did not ask her about them. Moreover, Mrs. Gustafson said Long already knew about the fire losses when the application was taken because they had discussed them previously. In fact, Mrs. Gustafson specifically recalls that when her house was destroyed by fire in 1983, Long discussed the fire with her and offered sympathy.

Also, when Long asked Mrs. Gustafson if she kept a dog on the premises, Mrs. Gustafson responded “yes” and admitted she had a Chow. Long agrees Mrs. Gustafson gave an affirmative answer to the question. Moreover, Long admits she saw a dog on the premises the same day the application was completed. Nevertheless, Long recorded Mrs. Gustafson’s answer to that question as “N.” Long explained that Mrs. Gustafson said the dog would be given away before the policy was issued.

After Long took the information, Mrs. Gustafson went to Long’s office and signed the last page of the insurance application. Mrs. Gustafson contends this last page was all she was given and that she never saw the first three pages of the application which contained Long’s questions and her answers. Also, in March 1993, in connection with the refinancing of her home, Mrs. Gustafson signed another application for insurance. However, she denies having seen the first three pages of the application, which are almost identical to those of the first application. She also denies being asked any additional questions by Long at that time.

On November 27, 1994, fire destroyed the Gustafsons’ home. Upon investigating the fire, Cotton States discovered the Gustafsons had experienced five prior fire losses. About a year after the November 1994 fire, Cotton States informed the Gustafsons that because their application for insurance contained material misrepresentations regarding the prior fires and the dog on the premises, their policy was “rescinded and declared void ab initio.” Cotton States returned the Gustafsons’ premiums. Cotton States’ underwriter manager gave an affidavit stating that Cotton States would not have issued the policy had it been aware of the prior fires or the Chow.

The evidence in this case is sufficient to authorize a finding that Mrs. Gustafson truthfully answered the questions she was asked, but that Long did not record the answers accurately. Mrs. Gustafson consistently denied being asked whether she suffered any prior fire losses when she applied for insurance with Cotton States. Although Cotton States contends Mrs. Gustafson’s testimony is contradictory on this point, a careful reading of the record reveals only explainable inconsistencies in Mrs. Gustafson’s testimony. That Gustafson did not “disclose” fire losses is irrelevant under these circumstances because if she was not asked this question, the insurer cannot complain that she answered it falsely. Further, Mrs. Gustafson admitted at the time of the application that she had a Chow but added that she would find the dog a new home. Mrs. Gustafson said she found another home for the dog, although she eventually took it back. Thus, a jury could find that Mrs. Gustafson gave truthful answers to Long’s questions when they were posed but that Long failed to record answers which reflected the situation accurately.

Whether an insured may escape the consequences of the agent’s having inserted inaccurate or untruthful information into the application depends on whether the insured is excused from reading and verifying the accuracy of the application before signing it. O’Kelly v. Southland Life Ins. Co., 167 Ga. App. 455, 456 (305 SE2d 873) (1983). Where an application is signed in blank and authority given by applicant to the agent of the company to fill out the application from information given him, any false answers inserted in the application, which is attached to and made a part of the policy issued, unless inserted by a misleading device or artifice perpetrated by such agent, will be binding on the applicant.” (Citations and punctuation omitted; emphasis in original.) Id.

We cannot say, given the dearth of evidence on this point, that Mrs. Gustafson was excused from reading the application before signing it. Even if Mrs. Gustafson was presented only with the signature page of the application, there is no evidence Long did anything which prevented Gustafson from reading the entire application. “This is not such ‘misleading artifice or device’ as amounts to fraud. [Cit.]” Hall v. World Omni Leasing, 209 Ga. App. 115, 118 (2) (433 SE2d 297) (1993). Though the Gustafsons may be charged with the inaccurate or untruthful answers recorded by Long, this does not end our inquiry because Cotton States may still be estopped from rescinding the contract if it had actual knowledge of the misrepresentations. O’Kelly v. Southland Life Ins. Co., supra at 457.

Decided January 23, 1998.

Victoria D. Little, for appellants.

Swift, Currie, McGhee & Hiers, Craig A. Langley, for appellee.

Even if the application contained material misrepresentations sufficient to void the policy under OCGA § 33-24-7, “there is a general rule that if an insured makes a false statement on an application and the company’s agent has actual knowledge that the statement is false, the agent’s knowledge is imputed to the insurer, and the insurer is thereafter estopped from urging this defense.” (Citation omitted.) Jones v. United Ins. Co. &c., 177 Ga. App. 102, 103 (338 SE2d 532) (1985); Graphic Arts Mut. Ins. Co. v. Pritchett, 220 Ga. App. 430, 431 (1) (469 SE2d 199) (1996).

In this case, the evidence is sufficient to give rise to a finding that Long had actual knowledge of the Gustafsons’ previous fire losses and ownérship of a Chow when she prepared the application. We cannot disregard Gustafson’s testimony that prior to making the application she discussed a previous fire with Long and that Long offered sympathy. In addition, Long’s own affidavit testimony established that she knew the Chow was on the premises when the application was completed. Long’s belief that the dog would be given away does not alter the fact that she knew the dog was there when she wrote “N” on the application. Because Long was Cotton States’ agent, her knowledge may be imputed to Cotton States. “Notice to the agent of any matter connected with his agency shall be notice to the principal.” OCGA § 10-6-58. Moreover, actual notice to the agent constitutes actual, not merely constructive, notice to the principal. Millan v. Residence Inn &c., 226 Ga. App. 826, 827 (487 SE2d 431) (1997). Because there is evidence from which a jury may find that Cotton States had actual knowledge of the false statements, an issue of fact remains as to whether Cotton States is estopped from rescinding the policy on the basis urged.

Judgment reversed.

Pope, P. J., and Blackburn, J., concur.

       Cotton States failed to elicit testimony from Mrs. Gustafson regarding which questions Long specifically asked when they completed the application for insurance. Mrs. Gustafson’s testimony is often non-responsive, vague, and subject to interpretation. For example, Mrs. Gustafson did not, as Cotton States urges in its brief, give a recorded statement in which she “was presented with the application and confirmed that it contained the questions which had been asked of her by Martha Long.” Rather, Mrs. Gustafson was asked the following: “Q. Alright. They print out a copy here, but this is a computer generated application, do you recall going through the application process on the computer? A. Martha and I sat down and she went through and asked me a lot of questions. Q. Alright. The questions that she probably asked you are here, I’m showing you is page two of four where it asks about where you’re employed, your date of birth, prior insurance carrier and things along those lines. Are these the questions you recall her asking? A. Um, huh.” Cotton States never followed up on this line of questioning in the recorded statement to confirm that Mrs. Gustafson actually saw the first three pages of the application document. In fact, one may draw an inference from this statement that Mrs. Gustafson did not review the printed application document at the time she applied for the insurance because it existed only on a computer. This recorded statement reveals only that Mrs. Gustafson recalls being asked questions like the ones suggested to her. So, when Mrs. Gustafson later explains that she did not actually see the first three pages of the application until this litigation, she is not contradicting her prior testimony, but, rather, supplementing it. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986). Further, Cotton States did not in either the recorded statement or in the later examination under oath establish which questions Long specifically asked Mrs. Gustafson and what answers she specifically gave.


author: Andrews, Chief Judge.

text:
    A97A2006.
    BOYD v. THE STATE.
    (497 SE2d 3)
   Andrews, Chief Judge.

Willie Boyd appeals from his conviction of one count of assisting in the sale of cocaine.

1. Boyd’s first two enumerations are that the court erred in allowing undercover agent Denson to testify concerning an out-of-court co-conspirator’s statement to Denson implicating Boyd.

Viewed with all inferences in favor of the jury’s verdict, Brewer v. State, 219 Ga. App. 16, 17 (1) (463 SE2d 906) (1995), the evidence was that law enforcement had been conducting undercover operations for illegal drug sales and Denson was investigating the Walthourville Seafood Deli. On June 10, 1993, Denson and a confidential informant went to the deli where Denson talked to Robinson who asked him if he wanted marijuana. Denson replied that he wanted “some rocks” of crack cocaine. At that point, Robinson looked at a man seated in the deli and called him “Pokey.” Pokey, later identified as Boyd, got up and started to leave, and Robinson told Denson to stop Pokey and have him get what Denson needed. Denson went to the man and told him he wanted $300 worth of crack. Pokey told him to wait for awhile and left. Denson then watched Pokey get in a blue Buick, drive across the street, and talk with another man. The second man, Dean Kelly, then got in the Buick and came back across the street.

Denson was preparing to leave the deli, thinking Pokey was not going to return, when Robinson identified the man coming into the deli as one of the Kelly boys and told Denson “[tjhat’s you right there, talk to the guy [Kelly].” Denson approached Kelly who gave him 15 rocks of crack. Asked how much, Kelly replied $300 and said Pokey had given him the 15 rocks.

Kelly testified at trial and acknowledged that he and Boyd were together that day, driving around in a rented blue Buick, and that he handed the rocks to Denson and took his $300. On the stand, he initially denied stating that he got the crack from Pokey, but then said he did not really recall his conversation with Denson.

The state then recalled Denson, and the statement identifying Pokey Boyd as the source of the rocks was introduced as substantive evidence pursuant to Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982).

Despite Boyd’s arguments to the contrary, the statement was admissible as substantive evidence and there was no error. In Walton v. State, 225 Ga. App. 701 (484 SE2d 765) (1997), Walton’s common-law wife would not implicate him at his trial for striking her, but her prior statement to the investigating officer that Walton struck her was allowed. See, e.g., Mason v. State, 226 Ga. App. 712 (1) (487 SE2d 476) (1997); Alford v. State, 224 Ga. App. 451, 455 (2) (480 SE2d 893) (1997).

2. Boyd contends that the trial court improperly considered a prior conviction for purposes of recidivist sentencing under OCGA § 17-10-2 (a). That section provides that, when sentencing in non-capital felonies, the judge “shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty . . ., or the absence of any prior conviction and pleas, provided that only such evidence in aggravation as the state has made known to the defendant prior to the defendant’s trial shall be admissible” (Emphasis supplied.)

At sentencing, State’s Exhibit 3, a copy of Boyd’s 1995 conviction for possession of cocaine, was introduced. Boyd’s counsel objected because the exhibit was not “served upon us at the beginning of the trial and just saw it a minute ago, and we have no time to make preparation for it. . . .” In response, the prosecutrix stated only that “defense counsel was given, on the plea sheet that was given, information . . . that he had a prior conviction and he was told about it before the trial. He is not entitled to a copy of it.” We have not been referred to nor have we found the referenced “plea sheet” in the record before us.

Discussing OCGA § 17-10-2 (a), Mitchell v. State, 202 Ga. App. 100 (1) (413 SE2d 517) (1991) reiterated that “ ‘[State a] Hendrixson, [251 Ga. 853 (310 SE2d 526) (1984)] (held) that the important requirement was that the defendant be given an “unmistakable advance warning that the prior convictions will be used against him at sentencing” (cits.), so that he will have “enough time to rebut or explain ‘any conviction record’ ” (cit.).’ ”

Merely giving notice of intent to present similar transaction evidence “does not vitiate the state’s need to give notice that it plans to use a prior conviction in aggravation of punishment.” Armstrong v. State, 264 Ga. 237, 238 (2) (442 SE2d 759) (1994). If such similar transaction written notice is coupled with an oral notice pursuant to OCGA § 17-10-2 (a), that may constitute the “unmistakable advance warning.” Kendrick v. State, 224 Ga. App. 72, 75 (8) (479 SE2d 464) (1996); Miller v. State, 219 Ga. App. 284, 288 (5) (464 SE2d 860) (1995); Wainwright v. State, 208 Ga. App. 777, 780 (2) (b) (432 SE2d 555) (1993).

The state has not shown the required advance warning, and we reverse and remand solely for resentencing.

3. Without citing any applicable authority, Boyd contends the trial court’s charge that proof beyond a reasonable doubt did not “mean to a mathematical certainty or beyond all doubt” was reversible error. It was not. Brown v. State, 264 Ga. 48, 49 (3) (a) (441 SE2d 235) (1994); Pilcher v. State, 214 Ga. App. 395, 396 (448 SE2d 61) (1994).

Decided January 23, 1998.

Richard D. Phillips, for appellant.

Dupont K. Cheney, District Attorney, Carole E. Wall, Assistant District Attorney, for appellee.

Judgment reversed as to sentence.

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

       Although he was charged with four counts of selling or assisting in selling cocaine, not guilty verdicts were either directed or returned by the jury on the other three counts.


text:
    A97A2465.
    A97A2484.
    FLANDERS v. THE STATE. BANFIELD v. THE STATE.
    (496 SE2d 344)
   Johnson, Judge.

A jury found Perry Flanders guilty of burglary and giving a false name to a law enforcement officer. In the same trial, Robert Banfield was found guilty of burglary. Although they have filed separate appeals from the convictions entered on the verdicts, Flanders and Banfield raise similar issues. Therefore, both appeals will be considered in this single opinion.

1. Flanders and Banfield challenge the burglary convictions, contending the verdicts were contrary to or against the weight of the evidence and that the evidence was insufficient to support the convictions.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellants] no longer [enjoy] a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Frazier v. State, 219 Ga. App. 768, 771 (3) (467 SE2d 338) (1996). So viewed, the record shows the following: At approximately 2:00 a.m., a store in an area known as Shellman was broken into and food stamps were taken. A neighbor heard the security alarm, went outside and saw a car leaving the area. When a sheriff’s deputy arrived, the neighbor told him the car was light in color, large, and had four or five people in it. A short time later, the deputy spotted a car fitting that description parked in an area about ten minutes away from the store. The deputy asked the five occupants for their names. Flanders told the deputy his name was “Chase Johnson.” Three of the other occupants also gave the deputy false names, although one, Banfield, eventually told the deputy his real name. Approximately two hours before the burglary was committed, the same deputy had briefly stopped the same car in the Shellman area. The car was occupied by Banfield and four other males, but, at that time, the officer did not ask the other occupants their names.

After further investigation, all of the men were arrested. Two of the men, Oliver Drake and Flanders’ brother, Terry Flanders, after being read and having waived their Miranda rights, gave police written statements in which they admitted that all of the men were in the car when they decided to burglarize the store. The two men stated that Perry Flanders and Banfield acted as “lookouts” during the burglary, that Banfield drove the car and allowed one of the other men to use a jack handle from his car to enter the building, and that Banfield kept the food stamps. Drake and Terry Flanders pled guilty.

At trial, Drake and Terry Flanders recanted those parts of their pre-trial statements implicating the appellants, Perry Flanders and Banfield. They testified that, contrary to their earlier statements, the appellants were not present when the burglary was being planned, did not know that the store was being burglarized, did not keep any food stamps, and did not otherwise participate in the burglary. Drake claimed that portions of his written statements were added after he signed the statements and that he made the remaining inculpatory statements only because he believed he would be given a lighter sentence if he implicated Perry Flanders and Banfield. Terry Flanders testified that he falsely implicated Perry Flanders and Banfield because officers told him they would “let [him] out of jail” if he did.

Both appellants argue that the burglary convictions should be reversed because they were based solely on the pre-trial statements of Drake and Terry Flanders, when those statements were recanted at trial. This argument is without merit.

“[A] prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence. ... If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of words uttered under oath in court.” (Citation and punctuation omitted.) Gibbons v. State, 248 Ga. 858, 862-864 (286 SE2d 717) (1982). The jury was authorized to believe the witnesses’ prior inculpatory statements rather than their present exculpatory testimony. Brown v. State, 175 Ga. App. 246, 247 (1) (333 SE2d 124) (1985). Although it was not necessary for the two accomplices’ statements to be corroborated, see Frazier v. State, 257 Ga. 690, 699 (16) (362 SE2d 351) (1987), the evidence did corroborate their pre-trial statements. The witnesses’ prior statements, coupled with evidence that the appellants were in the company of the confessed burglars just before and immediately after the crime was committed, as well as evidence that the appellants gave the officer false names immediately after the burglary, were sufficient to authorize a rational trier of fact to find Flanders and Banfield guilty of burglary beyond a reasonable doubt. See Smith v. State, 224 Ga. App. 352, 353 (1) (480 SE2d 356) (1997); Mosier v. State, 223 Ga. App. 75, 76 (476 SE2d 842) (1996).

Decided January 23, 1998.

James R. Coppage, for appellant (case no. A97A2465).

Roy L. Allen, Jr., for appellant (case no. A97A2484).

Dupont K. Cheney, District Attorney, James S. Archer, Assistant District Attorney, for appellee.

2. Perry Flanders also challenges the sufficiency of the evidence to support his conviction of giving a false name to a law enforcement officer. Flanders does not deny that he gave the officer a false name. Instead, he claims that he lacked the requisite intent to mislead the officer as to his identity because police already knew his name. See OCGA § 16-10-25. We note in passing that Flanders points to no evidence in the transcript showing that the officer who asked him for his name actually knew it. We note further that the question of whether Flanders intended to mislead the officer is quite different from that of whether the officer was actually misled.

More importantly, “[wjhether the requisite intent is manifested by the circumstances is a question for the trier of fact, and, on review, this court will not disturb the factual determination unless it is contrary to the evidence and clearly erroneous.” (Citation and punctuation omitted.) Watson v. State, 222 Ga. App. 814, 816 (476 SE2d 96) (1996). Considering the circumstances of the case as proved, the evidence was sufficient to convince a rational jury that Flanders intended to mislead the officer as to his identity. See Douglas v. State, 194 Ga. App. 182 (390 SE2d 98) (1990). See generally Grisson v. State, 225 Ga. App. 816, 817-818 (484 SE2d 802) (1997).

Judgments affirmed.

Pope, P. J., and Blackburn, J, concur.


author: Eldridge, Judge.

text:
    A98A0171.
    A98A0197.
    GRIFFIN v. THE STATE. HOLLEY v. THE STATE.
    (496 SE2d 480)
   Eldridge, Judge.

Appellants Lisa Griffin and Talia Holley were charged separately in Stephens County State Court with theft by taking for allegedly stealing merchandise from their employer, Cato’s, a clothing retailer. On May 27, 1997, both defendants filed motions to suppress written statements given to the store’s Loss Prevention Specialist, Mike Weaver. In separate orders dated June 13, 1997, the trial court refused to hold a pretrial hearing as to the voluntariness of the statements. Both defendants filed applications for discretionary appeals, which were granted by this Court. For the reasons set forth herein, we reverse the trial court’s determination that the defendants were not entitled to a hearing on the voluntariness of their statements and remand with directions to the court to conduct such hearing and make an express determination as to the voluntariness and, therefore, admissibility of the statements.

The relevant facts show that both defendants were employed by Cato’s. On January 14, 1997, Holley was taken to a small room and questioned for several hours by Weaver, who was a private employee of the store. During the questioning, Holley asserts that Weaver accused her of stealing from the store, screamed at her, and threw papers around the room. She claims that, when she insisted she was innocent, Weaver “threatened to have me locked up immediately unless I admitted to him that I had stolen from Cato’s.” As a result, she agreed to write out a confession “word for word as he said it.”

Griffin was questioned under similar circumstances the next day; she also asserts that Weaver screamed at her and threw papers. She claims that Weaver threatened that she “would be raising [her] baby from a detention center”; she was denied the opportunity to call her parents; and she was not permitted to leave until she confessed to stealing. She contends that her written confession resulted from this questioning.

In their signed confessions, both defendants admitted that they had placed merchandise that had not been paid for in shopping bags for customers; they refunded money to customers for merchandise that they knew had been stolen previously; and they personally took merchandise from the store without paying for it.

Both defendants were charged with theft by taking in separate accusations. They separately filed motions to suppress the statements on May 27, 1997, asserting that the statements were involuntary and, therefore, inadmissible under OCGA § 24-3-50. A motions hearing was held, during which the defendants were not permitted to present evidence regarding the voluntariness of their statements to Weaver. Instead, the trial court limited testimony to that which addressed whether or not Weaver was acting as a private or public official at the time of the questioning; Weaver was the only witness. Following his testimony, the trial court established that Weaver had no official, public capacity and was, instead, a privately employed agent of the store. Based on this finding, the trial court, citing Gaston v. State, 153 Ga. App. 538, 539 (265 SE2d 866) (1980), determined that the defendants were not entitled to a separate hearing on the voluntariness of the statements at any time. The trial court held that the statements were admissible and any question as to voluntariness must be resolved by the jury as going to the weight and credibility of the evidence. Both defendants appeal from this ruling.

The only issue before this Court is whether, under OCGA § 24-3-50, the defendants are entitled to a hearing and threshold determination by the trial court on the voluntariness of statements secured by private action before the evidence becomes admissible, or whether the issue of voluntariness is to be decided by the jury as a matter of weight and credibility.

OCGA § 24-3-50 reads as follows: “To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” “A confession is an admission freely and voluntarily made by the accused whereby he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act, and the share and participation he had in it. [Cit.]” Pressley v. State, 201 Ga. 267, 270 (39 SE2d 478) (1946); see also Allen v. State, 187 Ga. 178, 180-181 (200 SE 109) (1938); Imwinkelried et al., Courtroom Criminal Evidence 788 (2nd ed. 1993) (hereinafter “Imwinkelried”); Black’s Law Dictionary 296-297 (6th ed. 1990).

There is no indication within this statute or in subsequent case law which limits the applicability of the statute to confessions made to state actors or agents. See generally Mathis v. State, 249 Ga. 454, 456-457 (291 SE2d 489) (1982); Bonds v. State, 232 Ga. 694, 695 (208 SE2d 561) (1974). Therefore, even when made to a witness who is not a state agent, as in this case, a confession must be voluntary to be admissible for any purpose under OCGA § 24-3-50. See Allen v. State, 85 Ga. App. 355, 358-359 (69 SE2d 638) (1952) (holding that an involuntary confession is without probative value); see also Mincey v. Arizona, 437 U. S. 385 (98 SC 2408, 57 LE2d 290) (1978); Fain v. State, 165 Ga. App. 188 (300 SE2d 197) (1983).

The conclusion that the statute applies equally to state and private action is further supported by a historical analysis of the origins of the voluntariness requirement of the statute, which can be traced to the development of the English doctrine on voluntary confessions and the common law. Wigmore recognized that the doctrine developed in several stages. 3 Wigmore, Evidence, p. 291, § 817 (Chadbourn rev. 1970) (‘Wigmore”). Beginning in the 1500s, a confession was technically a guilty plea and was admissible, regardless of the circumstances under which it was acquired. Id. p. 292, § 818 (1). However, during the 17th and 18th centuries, the English courts began to recognize that confessions were often extracted by torture or the promise of pardon, making such confessions inherently unreliable. Id. pp. 294-295, § 818 (3). “[Confessions vary in value according to the circumstances in which they are made. Some are clearly trustworthy; others are worthless.” Id. p. 302, § 820b. “Among the circumstances that may be fatal to the trustworthiness of a testimonial narration is the fact that it is uttered under the direct and palpable pressure of an inducement to substitute something else than the truth. The statement thus presented may appear so likely to be the result of such an influence that it will be rejected as testimony.” Id. p. 286, § 815. In Warickshall’s Case, 1 Leach Cr.C. 298 (1783), the emerging voluntariness doctrine “received a full and clear expression, and confessions not entitled to credit because of the promises or the threats by which they had been obtained were declared inadmissible in evidence. From this time on, the history of the doctrine is merely a matter of the narrowness or broadness of the exclusionary rule.” Wigmore, supra at p. 297, § 819.

As such, the primary justification of the English voluntariness doctrine on confessions was “preventing receipt of unreliable evidence.” Imwinkelried, supra at p. 790, § 2304; see also McCormick, Evidence, pp. 231-232, § 111 (1954). Since confessions had been forced by the crown, church, nobility, and powerful, no distinction was made between the value of confessions resulting from official state action and those secured by private individuals.

During the 18th century, the common law voluntariness doctrine was transplanted to the American colonies and “was the rule in the United States during most of the 19th century, although presumably without the anticonfession bias common in England during the early 1800s.” Imwinkelried, supra at p. 791, § 2304. This doctrine applied to both private and official state action. Id. p. 791, § 2304, n. 16; see also id. p. 798, § 2305, n. 52.

The Georgia General Assembly first codified this common law doctrine as § 3716 of the original Code of 1863. As previously stated, during this period, coerced confessions were excluded in the United States because they were considered inherently unreliable as evidence, not because they violated some state or federal constitutional guarantee. Id. pp. 792-793, § 2304. In fact, the Georgia Constitutional Bill of Rights did not come into existence until the new Georgia Constitution was adopted in 1866. Ware, A Constitutional History of Georgia, p. 122.

It was not until the middle of the 20th century that the United States Supreme Court looked to procedural fairness, based on federal constitutional due process guarantees, to protect individuals from oppressive state action and to exclude coerced confessions. Id. p. 793, § 2304; see, e.g., Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966); Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964); Payne v. Arkansas, 356 U. S. 560 (78 SC 844, 2 LE2d 975) (1958); Fikes v. Alabama, 352 U. S. 191 (77 SC 281, 1 LE2d 246) (1957). As a constitutional matter, it is now clear that a voluntariness hearing under Jackson v. Denno, supra, must be held when there is an assertion that the defendant has been subjected to coercive state action. Further, it is also clear that confessions which result from coercive interrogations conducted by private citizens are not subject to a constitutional due process analysis in determining whether or not to exclude the confession at trial. See Colorado v. Connelly, 479 U. S. 157 (107 SC 515, 93 LE2d 473) (1986); see also generally Calhoun v. State, 144 Ga. 679, 681 (87 SE 893) (1916) (regarding self-incrimination). In this case, the trial court correctly determined that Weaver had no official, public capacity; therefore, the defendants were not entitled to a Jackson-Denno hearing as a matter of constitutional law and procedure. Accordingly, no constitutional analysis is necessary in this case.

However, “[t]he states may, of course, employ standards more stringent than the due process requirements pronounced in the federal precedents, but standards less stringent are outlawed.” Wig-more, supra at pp. 307-308, § 820d.; see also Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992); State v. Estevez, 232 Ga. 316, 317 (206 SE2d 475) (1974). If a state’s statutory standard is more beneficial to the accused, such standard is binding on that state’s courts. Imwinkelried, supra at p. 797, § 2305, n. 47; p. 918, § 2702. By enacting the original 1863 statute, recodified as OCGA § 24-3-50, the Georgia General Assembly deemed inadmissible all involuntary confessions, i.e., those that result from the hope of benefit or the fear of injury, not just confessions resulting from official state action.

In this case, however, the State cited to Gaston v. State, supra, and asserted that the defendants were not entitled to any hearing, at any time, on the issue of voluntariness solely because no state action was involved in securing the confessions and the constitutional standards did not apply to the private individual’s actions. Gaston v. State involved a confession to a private individual, the victim. The defendant failed to present any evidence of coercion. As such, this Court decided that, absent state action, the defendant was not entitled to a voluntariness hearing because his constitutional rights were not violated. However, the defendant’s rights under OCGA § 24-3-50 were not raised by the defense or considered by this Court in Gaston v. State. Therefore, the trial court in this case erred in relying on Gas-ton v. State in refusing to conduct a hearing, pursuant to OCGA § 24-3-50, on the voluntariness of the defendants’ confessions as to the threshold issue of the admissibility of the confessions. Under this statute, the voluntariness of the confessions is a legal determination that the trial court must make at some time prior to admission.

Further, although this Court recognizes that there is no absolute requirement that a voluntariness hearing be held outside the presence of the jury, it would be the better practice that it be done outside the presence of the jury as a matter of fairness and judicial economy. See Pinto v. Pierce, 389 U. S. 31, 32 (88 SC 192, 19 LE2d 31) (1967); Peinado v. State, 223 Ga. App. 271, 272 (477 SE2d 408) (1996); Schneider v. State, 130 Ga. App. 3, 5-6 (202 SE2d 238) (1973); Hilliard v. State, 128 Ga. App. 157, 158 (195 SE2d 772) (1973). “The judge must use appropriate means to insulate the jury from inadmissible evidence while balancing the rights of the parties to present their cases, make their admissibility arguments, and preserve the record for appeal. Various methods are available to the trial judge to prevent the jury from hearing evidence that is inadmissible for any purpose[,]” including resolving issues in a pretrial conference, hearing motions in limine, or hearing arguments on objections during trial outside the presence of the jury. Leonard, The New Wigmore: A Treatise on Evidence p. 1:7, § 1.3.

Regardless of the procedural device employed by the court, both the State and the defendants must have the opportunity to put forth evidence regarding the circumstances surrounding the confession. Cardell v. State, 119 Ga. App. 848, 852-853 (168 SE2d 889) (1969). The State has the burden to prove that the confession was voluntary within the meaning of OCGA § 24-3-50 by a mere preponderance of the evidence. See Lawrence v. State, 235 Ga. 216, 219 (219 SE2d 101) (1975); Peinado v. State, supra at 273; Billings v. State, 212 Ga. App. 125 (441 SE2d 262) (1994); Jones v. State, 174 Ga. App. 783 (331 SE2d 633) (1985). Upon consideration of the evidence, the trial court must make a threshold determination that the confession was voluntary and, therefore, admissible as a matter of law, and such express finding should appear in the record. See Sims v. Georgia, 385 U. S. 538 (87 SC 639, 17 LE2d 593) (1967); see also Cofield v. State, 247 Ga. 98 (274 SE2d 530) (1981); Cardell v. State, supra at 853. But, cf. Eady v. State, 182 Ga. App. 293, 298 (355 SE2d 778) (1987) (implicit in the court’s denial of the motion to suppress was the determination that the confession was voluntary under OCGA § 24-3-50).

Decided January 23, 1998.

Nina M. Svoren, Timothy P. Healy, for appellants.

James E. Cornwell, Jr., Solicitor, for appellee.

Thurbert E. Baker, Attorney General, Mary B. Westmoreland, Deputy Attorney General, Carol A. Callaway, Neal B. Childers, Senior Assistant Attorneys General, amici curiae.

Only upon such determination of voluntariness may the evidence be submitted to the jury for its consideration. However, the defense retains the right to present testimony and cross-examine witnesses regarding the circumstances surrounding the voluntariness of the confession. See Crane v. Kentucky, 476 U. S. 683, 688-690 (106 SC 2142, 90 LE2d 636) (1986) (holding that the defendant had the right to present a complete defense and, therefore, was entitled to introduce testimony about the environment in which the confession was obtained, since this kind of evidence is often relevant to its reliability and probative weight, as well as “to the ultimate factual issue of the defendant’s guilt or innocence”); Smith v. State, 263 Ga. 782, 784 (439 SE2d 483) (1994). After considering the evidence, the jury must decide what weight the evidence is to be afforded and may accept or reject the evidence based on such credibility determination. See OCGA § 24-9-80; Sims v. Georgia, supra at 544; Cooper v. State, 256 Ga. 234 (347 SE2d 553) (1986); see also Torcia, 4 Wharton’s Criminal Evidence § 629, pp. 116-117 (14th ed. 1987).

This case is remanded to the trial court with directions to hold a hearing, make an express threshold determination of voluntariness under OCGA § 24-3-50 on the record, and, only upon finding that the statements were voluntary, admit the defendants’ confessions.

Judgments reversed and remanded with directions.

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

       “In the middle of the 1800s . . . counsel were able to advance seriously the argument ‘that the law assumes that a man may falsely accuse himself upon the slightest inducement.’ ” Wigmore, supra at p. 298, § 820a., quoting R. v. Baldry, 2 Den. C.C. 430 (1852). “This, -then, was certainly one of the reasons why, in one way or another, on principle or without principle, many judges came to set themselves against the use of confessions, and to exclude them on pretexts which were in themselves trivial and irrational but in fact represented a fixed judicial sentiment.” Wigmore, supra at p. 299, § 820a. (1).

       We recognize that, if admissibility arguments are held in the presence of the jury and a confession is deemed to be inadmissible based on its involuntary nature, it is not automatically reversible error. However, curative instructions would be necessary to prevent the jury from considering the inadmissible evidence in reaching their verdict. If these instructions prove to be inadequate upon subsequent review, it may be reversible error under the circumstances.

       This Court feels compelled to note that, even if the defendants’ assertions regarding the circumstances leading to their confessions, as they presently appear in the record, were undisputed, they do not appear to rise to a “slightest hope of benefit or remotest fear of injury” that would exclude the confessions as involuntary under OCGA § 24-3-50. See Cooper v. State, 256 Ga. 234, 235 (347 SE2d 553) (1986); Tyler v. State, 247 Ga. 119, 122 (274 SE2d 549) (1981); Anderson v. State, 224 Ga. App. 608 (481 SE2d 595) (1997); Mungin v. State, 183 Ga. App. 290 (358 SE2d 673) (1987); Sampson v. State, 165 Ga. App. 833 (303 SE2d 77) (1983); see also OCGA § 24-3-51.


author: Judge Harold R. Banke.

text:
    A98A0238.
    STEWART v. THE STATE.
    (496 SE2d 329)
   Judge Harold R. Banke.

Jeffrey L. Stewart was convicted of possession of cocaine with intent to distribute, possession of cocaine, and a recidivism count. In his sole enumeration, he challenges the sufficiency of the evidence on the distribution charge.

This case arose after a Metro Drug Task Force deputy surveilling an area behind a grocery observed Stewart exchanging small objects stored in a matchbox for cash. Stewart kept the matchbox on top of a nearby dumpster, rather than on his person. After witnessing about five such transactions, the deputy radioed for backup officers to arrest Stewart. Just as they arrived, however, Stewart walked into the store, and the officers stopped another individual who coincidentally matched Stewart’s description. When the officers realized their error, they performed a pat-down search on Stewart, but found nothing. Stewart then returned to his post behind the grocery and conducted several more transactions. At that point, the officers reemerged and arrested Stewart, who had $445 in his pocket. Just prior to the arrest, the deputy observed Stewart remove an object from the matchbox, place the matchbox on a pole, and give the object to an individual standing nearby. After noticing the proximity of the officers, that individual tossed the object he had just purchased and a crack pipe into a nearby dumpster. The deputy found 3.4 grams of cocaine in the matchbox and a rock of cocaine and the pipe in the dumpster. Held:

The evidence, viewed in the light most favorable to the verdict, was sufficient to permit the trier of fact to find all the essential elements of the crimes of possession of cocaine with intent to distribute and possession of cocaine. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The deputy’s observations of Stewart exchanging the objects contained in the matchbox (which later tested positive for cocaine) for currency provided direct proof of the offenses. Lester v. State, 226 Ga. App. 373, 377 (2) (487 SE2d 25) (1997). This evidence undermines Stewart’s contention that the State built its case solely on circumstantial evidence. The amount of currency found on Stewart’s person provided additional evidence of Stewart’s intent to distribute. Compare McNair v. State, 226 Ga. App. 516, 518 (1) (487 SE2d 100) (1997). The evidence was clearly sufficient to present a question for the factfinder.

Judgment affirmed.

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

Decided January 23, 1998.

William H. Newton III, for appellant.

Tambra P. Colston, District Attorney, Lisa W. Tarvin, Assistant District Attorney, for appellee.

       The possession charge merged with the distribution charge for sentencing purposes.