text:
    A99A0978.
    BISCHOFF v. PAYNE.
    (522 SE2d 257)
   Phipps, Judge.

Karen Bischoff filed this personal injury action against Vanessa Payne. Bischoff seeks damages for physical injuries allegedly received as a result of a November 1996 rear-end collision caused by Payne’s negligence. Bischoff appeals judgment on a jury verdict in Payne’s favor.

Bischoff’s treating physician (Dr. Loftman) and a diagnostic radiologist employed by the defense (Dr. Jeffries) gave depositions which were read to the jury before the testimony of other witnesses was heard. In his deposition, Dr. Loftman testified that after the 1996 collision he diagnosed Bischoff as suffering from a symptomatic herniated cervical disc. Based on his understanding of Bischoff’s medical history, Dr. Loftman opined that the herniated disc was causing Bischoff physical pain which began with a January 1995 automobile accident in which she also was involved. On the basis of his review of an MRI of Bischoff’s neck performed shortly after the 1996 collision, Dr. Jeffries testified that Bischoff’s disc herniation was not caused by any injury received in that collision.

At the beginning of the trial, Bischoff moved in limine to prohibit Payne from introducing documentary evidence of prior lawsuits filed by Bischoff or her prior medical history. Bischoff argued that such evidence was irrelevant to the issues in this suit. The court deferred ruling on the admissibility of the documentary evidence until after Bischoff testified. The court, however, noted that the bare fact of prior litigation involving Bischoff was irrelevant and indicated that questions concerning the admissibility of this documentary evidence should be resolved outside the jury’s presence before the evidence was presented to the jury.

At trial, Bischoff testified on direct examination that in the 1996 collision she received a whiplash injury resulting in neck pain radiating into her shoulder and back, as well as numbness in her arm. She acknowledged that prior to this collision she had experienced neck pain resulting from another whiplash injury. But she maintained that the prior injury simply resulted in a tensing of her neck muscles and that, when this collision occurred, she was on the road to recovery.

On cross-examination, Payne elicited testimony from Bischoff that in 1984 a vehicle she was driving was struck, also in the rear, by another vehicle. After the 1984 accident Bischoff complained of neck pain and numbness in her arm and was hospitalized for six days. In 1986, Bischoff suffered a slip-and-fall in which she hit her head. In 1990, she sustained a work-related injury to her left shoulder. As a result of a January 17, 1995 automobile accident, Bischoff was given a cervical collar for a neck injury and sustained permanent, debilitating injuries to her lower back.

1. Bischoff first contends that the court erred in allowing Payne to impeach her with a recent deposition; in permitting Payne to inform the jury that the deposition was given in a lawsuit arising from the January 17, 1995 accident; and in admitting evidence concerning property damage sustained in that accident.

During cross-examination, Payne asked Bischoff whether the 1995 accident was more severe than the one in 1996. After Bischoff raised a vagueness objection, the court directed Payne to be more specific. Payne then asked whether there was more property damage done to Bischoff’s car in the 1995 accident. When Bischoff responded “I don’t recall that. I really don’t know,” Payne asked whether she remembered giving a deposition in the lawsuit arising from the 1995 accident.

Bischoff objected and moved for a mistrial. Outside the presence of the jury, Bischoff complained that Payne had informed the jury of the prior lawsuit without complying with the procedure delineated by the court. Bischoff argued that Payne could not impeach her with the deposition but could use it only to refresh her memory, and that this could be done without referring to the lawsuit in which the deposition was given. The court admonished Payne for informing the jury of the prior lawsuit without first obtaining a ruling as to its admissibility outside the jury’s presence; but, after learning of the contents of the deposition, the court overruled Bischoff’s objection and denied her motion for mistrial, ruling that testimony given by Bischoff in the deposition could be used to impeach her trial testimony. In the presence of the jury, Payne was allowed to show that in deposition given by Bischoff in the lawsuit arising from the prior accident, she testified that it had caused more damage to her vehicle than the 1996 accident. Bischoff then acknowledged that the impact of the 1995 collision had caused her to be thrown forward and strike the steering wheel, whereas in the 1996 accident she did not strike any interior part of the car.

Bischoff is correct in her argument that the proper use of her deposition was to refresh her memory and not to impeach her. See Johnson v. State, 255 Ga. 552, 556 (4) (a) (341 SE2d 220) (1986) (where a witness merely states that she does not remember, she cannot be impeached by the showing of former statements with respect to the facts which she claims not to remember). And documents used to refresh a witness’s present recollection generally cannot be admitted in evidence. Platt v. Nat. Gen. Ins. Co., 205 Ga. App. 705, 708 (1) (b) (423 SE2d 387) (1992).

But evidence of injuries sustained by Bischoff in the 1995 accident was relevant and admissible in this suit. In arguing otherwise, Bischoff relies on a line of decisions exemplified by Wages v. Sibran, Inc., 171 Ga. App. 14, 15 (1) (318 SE2d 679) (1984). The general rule applied in these cases is that evidence of similar acts or omissions of a party is irrelevant and inadmissible in a negligence action. Wages, however, recognizes an exception to this rule under which evidence concerning a plaintiff’s “other” injuries may be admissible to show that the injuries currently at issue are not the result of negligence by the defendant. This exception is applicable here.

Payne questioned Bischoff concerning property damage in order to show the relative severity of the two collisions. Bischoff did not object to the question. The testimony elicited from Bischoff authorized the jury to find that the physical impact on Bischoff was greater in the earlier collision, thereby increasing the probability that she sustained more serious injuries then. In the context of the entire case, any error by the court in allowing Payne to impeach Bischoff with the deposition rather than use it to refresh her memory, and to show that the deposition was given in a lawsuit arising from an earlier collision, was harmless.

2. Bischoff next contends that the court erred in permitting Payne to impeach her with allegations in a complaint filed by Bisch-off as a result of a January 21, 1995 automobile accident. Bischoff also complains of the court’s admission of evidence that the prior litigation was settled.

Under cross-examination, Bischoff was asked if she had sustained severe disabling injuries in a January 21, 1995 accident. She responded in the negative. Outside the presence of the jury, Payne then showed that a complaint filed by Bischoff as a result of the 1995 accident in fact alleged that Bischoff had sustained severe, disabling physical injuries, as well as mental suffering. The court ruled that Payne could impeach Bischoff with the allegations in the earlier suit if she denied having filed a complaint alleging such damages. Upon being questioned in the presence of the jury, Bischoff testified that the complaint sought damages for mental suffering only. Payne then introduced the prior complaint in evidence and informed the jury of its allegations. Bischoff asserted that the complaint was dismissed because her injuries were “mainly mental.” Following an unreported bench conference, Payne elicited testimony from Bischoff showing that the case was settled for $5,000.

Bischoff argues that she was not subject to impeachment based on the allegations of the complaint, because such allegations were drawn by her attorney and are not evidence. It has been held that allegations in pleadings in other cases which are contradictory to a party’s trial testimony may be introduced in evidence for purposes of impeachment. Krasner v. Lester, 130 Ga. App. 234, 235 (1) (202 SE2d 693) (1973). Therefore, there is no merit in the above argument.

Nor is there any merit in Bischoff’s argument that her settlement of the prior lawsuit was inadmissible. As authority, Bischoff relies on Allison v. Patel, 211 Ga. App. 376, 382 (1) (438 SE2d 920) (1993). Allison holds that the fact that plaintiff settled with co-defendant tortfeasors is not relevant as to either defendant’s negligence or the amount of plaintiff’s damages. In this case there were no co-defendant tortfeasors. Payne was merely allowed to show that Bischoff had settled a lawsuit arising from an earlier accident in order to impeach Bischoff’s testimony that the complaint had been dismissed. “A witness may be impeached by disproving the facts testified to by [her].” OCGA § 24-9-82.

3. Bischoff complains of improper comments by Payne in closing argument.

During closing argument, Payne’s attorney alluded to a July 1991 slip-and-fall by Bischoff at a restaurant. Bischoff objected on the ground that there was no evidence of such a fall. The court then instructed the jury that the statement by counsel was not evidence and should not be considered. Without any additional objection by Bischoff, Payne’s attorney was allowed to proceed. We find no error by the trial court.

4. The remaining issues raised by Bischoff in this appeal relate to instances where evidence was admitted without objection. Consequently, these issues have not been preserved for appellate review.

Judgment affirmed.

Smith and Eldridge, JJ, concur.

Decided September 7, 1999.

Clifford H. Hardwick, for appellant.

Fain, Major & Wiley, John K. Miles, Jr., for appellee.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A99A1316.
    BUCK v. THE STATE.
    (522 SE2d 252)
   Johnson, Chief Judge.

After a bench trial, Jeffrey Buck was convicted of possession of cocaine. On appeal, he challenges the trial court’s denial of his motion to suppress, arguing that the police detained him unlawfully and that his consent to search was not valid. We disagree with both arguments and affirm.

In reviewing a trial court’s ruling on a motion to suppress,
the evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citations and punctuation omitted.) Williams v. State, 236 Ga. App. 102 (511 SE2d 216) (1999).

So viewed, the evidence shows that a groundskeeper for a softball field called police to report that an unoccupied parked car blocked his access to a storage shed on the field. When an officer arrived, no one was in or near the car. Nor was anyone other than the groundskeeper in the area. The officer ran a tag check on the car and learned that it had not been reported stolen. The officer telephoned the registered owner, Patricia Buck, but no one answered. The officer walked around the area in search of the car’s owner. Another officer arrived, and the two walked along some nearby railroad tracks.

Jeffrey Buck, who had been walking along the tracks, approached the officers. The officers asked Buck if the car was his, and Buck replied that it was. The officers then asked him his name. Buck gave his name, but had no identification. Buck was carrying a pair of women’s high-heeled shoes; the shoes were wet and covered with sand. The first officer asked Buck where he got the shoes. He responded that he found them by a nearby bridge. When asked what he was doing in the area, Buck told the officers that he was sunbathing. The first officer asked Buck if he traveled 40 miles from his home to sunbathe there, to which Buck replied that he had. Buck appeared to be extremely nervous. Because of the circumstances, the officer became concerned as to whether a woman was in the area and whether she was safe. One of the officers asked Buck if he had drugs or weapons on his person. He said he did not and agreed to let the officer pat him down. The pat-down did not reveal any weapons or contraband.

As Buck and the first officer stood by the tracks, the other officer walked toward the creek area from which Buck had come. Two more officers arrived. One officer stayed with Buck and the first officer. The other officer joined in the search of the creek bank. The first officer testified that he and Buck just stood there during the search of the area, with little or no conversation. The officer testified that Buck was free to leave at that point, though he did not so inform Buck.

One of the officers at the creek radioed the first officer and reported seeing prints from a woman’s high-heeled shoes in the sand. The officer testified that there was torn clothing on the ground and it looked as if there had been a struggle in the area. He also found fresh cigarette butts and ashes on the creek bank.

Buck told the officers he had not been in the area where the cigarette butts were found. The officers wanted to see if Buck had the same brand of cigarettes as those found near the creek. One of the officers asked Buck if he had any cigarettes in his possession. He said he did not. The officer asked Buck if he would allow police to search him. Buck said he did not mind. Buck handed one of the officers the sunglasses case he was holding. The officer opened the case and discovered a clear plastic bag containing a white powdery substance which tested positive for cocaine. Buck was arrested and taken to police headquarters. Officers continued to search the area because of their suspicions surrounding the apparently absent woman, but found nothing.

There are at least three levels of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment; (2) brief seizures that must be supported by reasonable suspicion; and (3) full-scale arrests that must be supported by probable cause. State v. King, 227 Ga. App. 466, 468 (489 SE2d 361) (1997).

The detention in this case falls within the second type of encounter. The officers testified that they initially sought to find the owner of the car which blocked the shed. When they first encountered Buck and asked him about the car and his reason for being in the area, the officers learned that Buck was carrying women’s shoes, was alone, was extremely nervous, and was not the registered owner of the car. The officers’ investigation of the area revealed evidence of a struggle, torn clothing and high-heel prints in the sand. The officers’ initial questioning and observations caused them to form a reasonable and articulable suspicion that a woman may have been a victim of foul play and that Buck may have been involved. If there is a reasonable suspicion of criminal wrongdoing, based upon specific and articulable facts from which it can be determined that the actions of the police officers are not arbitrary or harassing, the officers may briefly detain the individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. Gonzalez v. State, 235 Ga. App. 253, 254 (509 SE2d 144) (1998). Under the circumstances presented here, the officers were authorized to detain Buck temporarily to maintain the status quo while obtaining more information. See Mallarino v. State, 190 Ga. App. 398, 401 (2) (379 SE2d 210) (1989).

Buck complains that officers were not authorized to detain him as long as they did without probable cause. The United States Supreme Court has adopted a two-part inquiry for evaluating the reasonableness of an investigative stop: (1) whether the officers’ action was justified at its inception, and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place. State v. Johnson, 209 Ga. App. 84, 86 (432 SE2d 580) (1993).

The second part of this inquiry includes a consideration of the requirement that investigative detentions be brief. In assessing the effect of the length of the detention, it must be determined whether the officers diligently pursued their investigation. Johnson, supra. No rigid time limitation is imposed; instead, we must consider the law enforcement purposes to be served by the stop and the time reasonably needed to effectuate those purposes. Mallarino, supra. “Much as a bright line rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria.” (Citation and punctuation omitted.) State v. Grant, 195 Ga. App. 859, 864 (3) (394 SE2d 916) (1990). “A key consideration is whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing.” (Citation and punctuation omitted.) Mallarino, supra at 402. Applying these factors to the facts of this case, we find that the officers’ detention of Buck for approximately one hour from the time they approached him until the time he consented to the search of his sunglasses case was not unreasonable. See id. (thirty-three-minute detention before consent given reasonable under circumstances); Grant, supra (more than one hour investigative detention reasonable).

It was during this reasonable detention that the officers asked for and obtained Buck’s consent to search his sunglasses case. A valid consent during a lawful detention eliminates the need for probable cause. Eaves v. State of Ga., 236 Ga. App. 279, 280 (2) (511 SE2d 621) (1999); O’Donnell v. State, 200 Ga. App. 829, 833 (1) (409 SE2d 579) (1991). Thus, because the detention was authorized, the only question remaining is whether Buck’s consent to search was valid.

Decided September 7, 1999.

Darel C. Mitchell, for appellant.

Daniel J. Porter, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.

Voluntariness of consent is a factual determination to be made by considering the totality of the circumstances. State v. Norrington, 203 Ga. App. 574, 575 (417 SE2d 203) (1992). In looking at the totality of circumstances, the court may consider such factors as the age of the accused, the length of detention, whether he was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of these factors on the accused. No single factor is controlling. Id. Contrary to Buck’s contention, officers were not required to inform him that he had a right to refuse the request to search. See Semelis v. State, 228 Ga. App. 813, 814 (1) (a) (493 SE2d 17) (1997). The giving of such information is but one factor to be taken into account. Id.

Buck was 32 years old on the date of the incident. Although Buck waited at the scene about an hour as officers investigated the circumstances surrounding his presence there, there was no prolonged questioning, no weapons were drawn, no physical restraints were placed on him, and no threats were made. The trial court’s finding that Buck freely and voluntarily consented to the search was authorized by the evidence. See generally Benavides v. State, 193 Ga. App. 737, 739 (388 SE2d 886) (1989). The trial court did not err in denying Buck’s motion to suppress.

Judgment affirmed.

Smith and Eldridge, JJ, concur.


author: McMurray, Presiding Judge.

text:
    A99A0877.
    WALKER v. THE STATE.
    (521 SE2d 861)
   McMurray, Presiding Judge.

Defendant was tried at a bench trial and convicted of driving under the influence of a prescription drug to an extent that it was less safe for her to drive. This appeal followed. Held:

Defendant challenges the sufficiency of the evidence, arguing that the State failed to prove that her erratic driving, slurred speech and inability to pass field sobriety tests were associated with her admitted use of an “antidepressant” prescription drug.

Decided August 27, 1999

Reconsideration denied September 8, 1999

Ralph M. Hinman III, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, David P. Soulis, for appellee.

Although there is no proof that defendant’s use of an “antidepressant” prescription drug caused her erratic driving, it is undisputed that defendant refused the arresting officer’s request for her to submit to a state-administered chemical test of her blood to determine whether a prohibited substance was the cause of defendant’s impaired driving abilities. This evidence authorized a presumption that defendant was under the influence of a substance which impaired her driving. OCGA § 40-6-392 (d); Mendoza v. State, 196 Ga. App. 627, 629 (2) (396 SE2d 576); Brooks v. State, 187 Ga. App. 194 (1) (369 SE2d 801). And while this Court held in Brinson v. State, 232 Ga. App. 706 (503 SE2d 599), that such a presumption, alone, is insufficient to authorize a finding of guilt beyond a reasonable doubt, defendant’s refusal in the case sub judice to submit to a state-administered blood test, along with proof of defendant’s erratic driving (weaving off the road), her slurred speech, her unsteadiness on her feet and her inability to pass field sobriety tests, authorizes the trial court’s finding that defendant is guilty, beyond a reasonable doubt, of drug-influenced driving in violation of OCGA § 40-6-391 (a) (2). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); see Albert v. State, 236 Ga. App. 146, 150 (3) (511 SE2d 244).

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


author: Eldridge, Judge.

text:
    A99A0887.
    JONES v. THE STATE.
    (521 SE2d 614)
   Eldridge, Judge.

Appellant, James C. Jones, was convicted by a Dawson County jury of trafficking in methamphetamine on March 6, 1997. Appellant appeals from the trial court’s denial of his motion for new trial and his extraordinary motion for new trial. Without challenging the sufficiency of the evidence, appellant raises three enumerations of error.

The evidence at trial showed the following: On December 8, 1994, Agent John Anderson, a deputy with the Dawson County Sheriff’s Department assigned to the Appalachian Drug Task Force, obtained and executed a search warrant for appellant’s Dawson County residence. The search warrant also authorized agents of the drug task force to search the garage which was located on the premises. When the agents arrived at appellant’s residence, appellant was in the garage. In the garage, the agents found a hollowed-out car battery which, according to Agent Anderson, is typically used to hide drugs or valuables; an Igloo cooler bearing a scent of methamphetamine; a four-inch PVC pipe bearing a scent of methamphetamine; digital scales; triple beam scales; and a garbage bag containing jars of methamphetamine powder and two commonly used cutting agents, Inositol powder and Super B vitamin supplement. The garbage bag was found hanging from a door in the garage. Solomon Noble, a forensic chemist with the Georgia Bureau of Investigation (“GBI”), testified at trial that the total weight of the methamphetamine found in appellant’s garage exceeded 200 grams.

At trial, appellant asserted an equal access defense, contending that he was no longer able to work in the garage due to a back injury and that the garage was used by other people in the community. The defense called multiple witnesses who were friends and relatives of appellant and who testified that they worked on cars in the garage. Among these witnesses was Johnny Jones, appellant’s brother, who testified that he worked on cars in appellant’s garage; that appellant was normally present whenever anyone else was using the garage; and that he (Johnny Jones) did not have any knowledge of the methamphetamine found in appellant’s garage. Additionally, appellant testified that he was unaware that the methamphetamine was in his garage.

In rebuttal, the State called several witnesses, including Lloyd Roebuck, the confidential informant (“Cl”) who had given Agent Anderson information concerning the presence of methamphetamine in appellant’s garage, leading to Agent Anderson’s procurement of the search warrant. Roebuck testified that he had purchased methamphetamine from appellant on December 7, 1994; that later on the same day, he sold part of the methamphetamine he had purchased from appellant to an undercover agent and was arrested; and that, at the time of his arrest, he gave the arresting officers appellant’s name as the person from whom he had purchased the methamphetamine and a physical description of appellant.

1. Appellant alleges that the trial court erred in allowing the State to call Roebuck as a witness because his testimony constituted evidence of a separate crime, the character of appellant had not been placed in issue, and the State had not provided notice that it intended to present evidence of a similar transaction.

(a) At trial, appellant’s trial counsel initially objected to the testimony of Roebuck, arguing that the State had not provided notice of the State’s intention to present evidence of a similar transaction, as required by Uniform Superior Court Rules (“USCR”) 31.1 and 31.3, and that the testimony did not rebut appellant’s defense of equal access. The trial court ruled that Roebuck’s testimony was admissible and recessed court. After the recess of court, the trial court agreed to hear further argument from defense counsel regarding Roebuck’s testimony. Defense counsel stated:

Well, I think what I am going to say makes it easier for [the trial court]. There is this case called Willis versus the State. I don’t know if the [c]ourt can find it, 193 Georgia appeals, page 59, paragraph four that this is a case that is pretty similar to this and the last sentence in it is the one that kills the defendant’s position in the case. ... So my argument as to the introduction of similar crimes and not having been given notice is not, under the law that I found is not valid.

As such, appellant’s trial counsel affirmatively waived his objection to the State’s failure to provide notice of a similar transaction under USCR 31.1 and 31.3.

(b) Furthermore, even if appellant had not waived such objection, Roebuck’s testimony constituted admissible evidence of impeachment and of the crime charged, both of which are outside the scope of USCR 31.1 and 31.3.

[A]n indictment charging the commission of an offense, without showing that the date alleged therein is an essential averment, covers any offense of the nature charged within the appropriate period of limitation, including the date alleged. The State is not confined to proof of a single transaction, but may prove or attempt to prove any number of transactions of the nature charged within the period, although punishment upon conviction is limited to a single offense, and acquittal or conviction, upon proper plea, operates as a bar to further prosecution for any offense of the nature charged within the period.

(Citations and punctuation omitted.) Miller v. State, 226 Ga. App. 509, 511 (486 SE2d 911) (1997). The indictment in this case charged appellant with “possessing] and having] under his control 28 grams and more of a controlled substance, to wit: Methamphetamine, in violation of the Georgia Controlled Substance Act.” Roebuck testified that he purchased 28 grams or more of methamphetamine from appellant on December 7,1994. The indictment was returned on May 10, 1995, so the transaction on December 7, 1994, was within the statute of limitation. See OCGA § 17-3-1 (c). Therefore, Roebuck’s testimony concerning the December 7, 1994 transaction was admissible as evidence of the crime charged.

Further, Roebuck’s testimony constituted impeachment evidence. “[T]he State is permitted to rebut statements of a defendant who testifies at trial by disproving the facts testified to. [Cits.]” Howard v. State, 206 Ga. App. 610, 611 (2) (426 SE2d 181) (1992). In this case, appellant testified that he had no knowledge of the methamphetamine that police found in his garage. Roebuck’s testimony established that appellant did have knowledge of the methamphetamine in his garage on December 7, 1994. Roebuck’s testimony was, therefore, admissible as impeachment evidence, because it tended to discredit and disprove appellant’s claim that he had no knowledge of the methamphetamine discovered in his garage on December 8, 1994.

(c) Additionally, appellant contends that, even if Roebuck’s testimony concerning the December 7, 1994 transaction was admissible, the trial court erred because Roebuck “inferred [sic] in his testimony that he had bought drugs from appellant on other occasions.” Specifically, appellant now objects to two statements made during Roebuck’s testimony: (1) that Roebuck did not buy methamphetamine from appellant unless he got an ounce or more; and (2) that Roebuck did not recall the location that appellant retrieved the drugs from that particular time. However, appellant has waived his right to appellate review of this issue because he failed to object at trial. Benson v. State, 233 Ga. App. 58, 60 (503 SE2d 316) (1998).

2. In his next two enumerations of error, appellant alleges that his trial counsel was ineffective.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990).

To establish a claim of ineffective assistance of counsel, [appellant] must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). [Appellant] must establish both the performance and the prejudice components of the Strickland test.

Johnson v. State, 222 Ga. App. 722, 728 (9) (475 SE2d 918) (1996). “A conviction will not be reversed on the basis of ineffective assistance of counsel unless counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Citations and punctuation omitted.) Cunningham v. State, 222 Ga. App. 740, 743-744 (2) (475 SE2d 924) (1996); Strickland v. Washington, supra at 669.

(a) Appellant contends that he was denied effective assistance of counsel because trial counsel failed to elicit certain testimony from witness Johnny Jones. “Decisions regarding which witnesses to present are matters, of trial strategy. When founded on legitimate evi-dentiary concerns, such decisions do not constitute ineffective assistance of counsel. [Cit.]” DeYoung v. State, 268 Ga. 780, 786 (5) (493 SE2d 157) (1997).

In this case, Johnny Jones, appellant’s brother, testified in appellant’s case-in-chief and denied ownership of the methamphetamine found in appellant’s shop or that he had ever seen any methamphetamine in appellant’s shop. At the motion for new trial hearing, trial counsel testified that after the introduction of Roebuck’s testimony in rebuttal, Johnny Jones, who was also in custody for possession of methamphetamine, stated to him that “I (Johnny Jones) can go in and testify that that’s my dope.” Trial counsel testified that, based on the words Johnny Jones used and Johnny Jones’ tone of voice and demeanor, he felt the testimony would be perjury. Trial counsel further testified that he felt that Johnny Jones’ testimony asserting ownership of drugs, after having previously denied ownership and after Roebuck testified he had purchased drugs from appellant the previous day, would be counterproductive. Under the above facts, the trial court’s finding that appellant was not denied effective assistance of counsel was not clearly erroneous and must be affirmed.

(b) Additionally, appellant contends that he was denied effective assistance of counsel because his trial counsel had an actual conflict of interest. In particular, appellant contends: (1) that trial counsel was actively representing both appellant and appellant’s brother, Johnny Jones; (2) that Johnny Jones offered to testify that the methamphetamine found in appellant’s garage belonged to Johnny Jones, rather than appellant; and (3) that trial counsel declined to elicit such testimony from Johnny Jones because of trial counsel’s active representation of Johnny Jones’ interests. Ineffective assistance of counsel does not result from the refusal of counsel to use possibly perjured testimony. Stephenson v. State, 206 Ga. App. 273 (424 SE2d 816) (1992); see also Nix v. Whiteside, 475 U. S. 157 (106 SC 988, 89 LE2d 123) (1986); Harris v. New York, 401 U. S. 222, 225 (91 SC 643, 28 LE2d 1) (1971); York v. State, 207 Ga. App. 494 (428 SE2d 113) (1993).

To establish ineffective assistance of counsel due to a conflict of interest on the part of trial counsel, a defendant who raised no objection at trial must prove that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance. Where the contention is only the possibility of conflict, this is insufficient to impugn a criminal conviction.

(Citations and punctuation omitted.) Leon v. State, 237 Ga. App. 99 (513 SE2d 227) (1999).

The relationship of attorney-client may be expressly created by written contract, or may be inferred from the conduct of the parties. Although generally the test of employment is the fee, the basic question in regard to the formation of an attorney-client relationship is whether it has been sufficiently established that advice or assistance of the attorney is both sought and received in matters pertinent to his profession.

(Citations and punctuation omitted.) Huddleston v. State, 259 Ga. 45, 46-47 (376 SE2d 683) (1989).

In this case, appellant failed to demonstrate that trial counsel actively represented the interests of Johnny Jones. The only evidence before the court was the testimony of trial counsel. Trial counsel testified that, at the time of appellant’s trial, he had not entered into “any sort of relationship” with Johnny Jones, nor had he told Johnny Jones that he would represent him. Although Johnny Jones had inquired of trial counsel as to the possibility of trial counsel representing him, trial counsel testified that he had told Johnny Jones that he was currently busy with appellant’s case and that he would have to “investigate as to whether [he] would represent [Johnny Jones].” Trial counsel further testified that “after the turning of events in this case, I decided not to represent Johnny Jones in any fashion in any case.”

Further, the record does not support that Johnny Jones, while offering to testify that he possessed the methamphetamine in question, sought legal advice from trial counsel as to his own interest. Rather, the record indicates that Johnny Jones was merely offering to aid in appellant’s defense by claiming the methamphetamine found in appellant’s garage. Nor does the record support that trial counsel’s statement to Johnny Jones that “[i]f you go in and claim the dope at this point in this trial, then I think the result of that would be that both of you would go to jail” constituted legal advice to Johnny Jones. Therefore, appellant has failed to establish that an actual conflict of interest existed.

However, even if appellant had established an actual conflict of interest, appellant must further establish that the conflict adversely affected his lawyer’s performance. See Fogarty v. State, 231 Ga. App. 57, 59 (3) (497 SE2d 628) (1998). In this case, trial counsel testified that his actual reason for declining to elicit such testimony from Johnny Jones was his belief that the testimony would constitute perjury and that such testimony would have hurt, rather than have aided, appellant’s defense. Therefore, even if an actual conflict of interest had existed, appellant has failed to establish that trial counsel would have acted otherwise absent the conflict of interest. Accordingly, we cannot say that the trial court’s determination that appellant was not entitled to a new trial based on ineffective assistance of counsel was clearly erroneous.

Decided August 10, 1999

Reconsideration denied September 8, 1999

Summer & Summer, Chandelle T. Summer, Toby J. Clarkson, for appellant.

Lydia J. Sartain, District Attorney, Scott A. Drake, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


text:
    A99A1037.
    PETERSON v. HOLTRACHEM, INC.
    (521 SE2d 648)
   Eldridge, Judge.

Maryellen Peterson, defendant-appellant, challenges the trial court’s grant of summary judgment to plaintiff-appellee Holtrachem, Inc. Because we find that the trial court erred as a matter of law, we reverse the grant of summary judgment to Holtrachem. We also . remand the case to the trial court with direction to grant summary judgment in favor of Peterson.

The facts of this case are not in dispute. In 1997, Peterson was a part-time employee of Textiles Specialties & Chemicals d/b/a CS Industries (“CS Industries”). On April 17, 1997, Peterson signed a check in the amount of $13,769.80 on the account of CS Industries, made payable to Holtrachem. However, Peterson signed only her name on the check and did not note that she was signing in her representative capacity on behalf of CS Industries. The drawee bank returned the check to Holtrachem due to insufficient funds. Pursuant to OCGA § 13-6-15, Holtrachem sent a certified letter on March 9, 1998, to Peterson demanding payment for the check, plus a service charge. Peterson received the letter and responded thereto, but did not comply with Holtrachem’s demand.

On April 27, 1998, Holtrachem filed suit against Peterson in the State Court of Gwinnett County. Peterson responded and admitted the above facts, but denied that she was liable in her personal capacity.

Holtrachem filed a motion for summary judgment on July 29, 1998. Peterson responded and filed her own motion for summary judgment on August 27,1998. No hearing was conducted. On November 30, 1998, the trial court granted Holtrachem’s motion for summary judgment. Peterson filed a timely appeal. Held:

In her sole enumeration of error, Peterson contends that the trial court erred as a matter of law in finding that she was personally liable on the check and in granting Holtrachem’s motion for summary judgment upon such finding. We agree.

In granting summary judgment to Holtrachem, the trial court applied this Court’s ruling in Kolodkin v. Cohen, 230 Ga. App. 384 (496 SE2d 515) (1998). In Kolodkin, this Court considered whether an individual was personally liable for a check he signed in 1995 and which was drawn on a business account. In finding that the individual was liable, this Court construed OCGA § 13-6-15 in pari materia with OCGA § 11-3-403 as it then existed.

Prior to July 1, 1996, OCGA § 11-3-403 provided that an individual who signed his or her own name to a negotiable instrument was personally obligated on the instrument if it did not include either (1) the name of the person or entity represented or (2) the representative capacity of the signing individual. OCGA § 11-3-403 (2) (a), (b). Further, OCGA § 13-6-15 delineated the damages for which a “person” was liable in a civil suit once it is established that they wrote a bad check. Since the term “person” as used in that statute had not been construed, this Court found that the statute created a “limited exception to the general corporate principle that an individual who signs in a representative capacity is not personally liable [,]” and relied upon OCGA § 11-3-403 as support for such finding. Kolodkin, supra at 386. Accordingly, the individual in Kolodkin was determined to be a “person” who was personally liable for the bad checks and who could be assessed damages under OCGA § 13-6-15.

However, the holding of Kolodkin is inapplicable here, since the check in this case was written and signed in 1997, a year after the General Assembly revised Georgia’s Uniform Commercial Code. In so doing, the legislature specifically changed the statutory provisions regarding who shall be liable on an instrument negotiated by a business. See Ga. L. 1996, pp. 1306, 1364, § 1; see also Legislative Review, 13 Ga. State Univ. Law Rev. 41, 48 (1996). The relevant amended provision states as follows:

Decided August 12, 1999

Reconsideration denied September 8, 1999

Leonard S. Goldstein, for appellant.

McGee & Oxford, James J. Brissette, for appellee.

If a representative signs the name of the representative as drawer of a check without any indication of the representative status and the check is payable from an account of the represented person who is identified on the check, the signer is not liable on the check if the signature is an authorized signature of the represented person.

OCGA § 11-3-402 (c). Therefore, as written, the revised statute has the exact opposite effect of the previous statute in that it codifies the rule that an authorized representative is not personally liable when he or she signs a negotiable instrument on behalf of the represented entity, even if the instrument does not indicate on its face that it is being signed in a representative capacity. Id.

Since establishing such liability is a threshold issue which must be resolved before a trial court can determine what damages, if any, are available under OCGA § 13-6-15, if it is established that a defendant is not obligated on a bad check, the issue of damages thereon is moot. As such, OCGA § 13-6-15 has no effect on the result of this case.

Accordingly, applying OCGA § 11-3-402 (c) to the facts of this case, Peterson cannot be held personally liable since the check was imprinted with the name of the represented business. Peterson was entitled to summary judgment in her favor.

Judgment reversed and remanded with direction.

Pope, P J, and Smith, J., concur.

       It is unclear from the facts as presented in Kolodkin whether the check, as written, was missing the represented company’s name, the representative capacity of the individual who signed the check, or both.

       Subsequent to the 1996 revision, OCGA § 11-3-403 now addresses the issue of unauthorized signatures, an issue not present in this case.

       Even if it had been a consideration in this case, OCGA § 13-6-15 still should be construed in pari materia with OCGA § 11-3-402 (c), as amended.


text:
    A99A1068, A99A1069.
    SHELLEY v. THE STATE (two cases).
    (521 SE2d 855)
   McMurray, Presiding Judge.

Defendants Kareem O. Shelley and Courtney G. Shelley are brothers. They were tried jointly before a jury and convicted of armed robbery. The evidence which authorized these convictions reveals that defendants joined together and committed three armed robberies along with co-defendants Calloway and Emmon during a single-night, multi-county crime spree. The third armed robbery is the subject in the cases sub judice.

The first armed robbery occurred at a Fulton County convenience store at about 11:30 p.m. on November 18, 1996. The store’s clerk testified that there were four assailants and that two of the men were armed with handguns. This victim positively identified defendant Kareem O. Shelley as an armed assailant. The second armed robbery occurred at a Gwinnett County eating establishment known as the “Waffle House.” This time, defendant Courtney G. Shelley remained in the car and served as a “getaway driver.” The restaurant’s manager testified that there were three assailants; that two of the men were armed, and that defendant Kareem O. Shelley was a gunman. The third armed robbery occurred at about 1:00 a.m. on November 19, 1998, at a DeKalb County eating establishment also known as the “Waffle House.” Latoya Brown, a waitress at this restaurant, testified that she was on duty during the armed robbery; that there were three armed assailants, and that defendant Courtney G. Shelley was one of the gunmen.

Each of the defendants filed a notice of appeal, submitting identical enumerations of error, after the denial of their motions for new trial. Held:

1. Eyewitness testimony corroborated co-defendants Calloway’s and Emmon’s testimony that defendants were parties to the three armed robberies in question, including the armed robbery of the DeKalb County ‘Waffle House.” This evidence, and proof that defendants were together on the night of the armed robberies, is sufficient to authorize the jury’s finding that defendants are guilty, beyond a reasonable doubt, of the charged offense of armed robbery. OCGA § 16-8-41 (a); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); see Allen v. State, 224 Ga. App. 324, 325 (3) (480 SE2d 328). Although there were differences and uncertainties as to certain testimony in the cases sub judice, these matters were for jury resolution — not this Court. Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489); see Berry v. State, 268 Ga. 437 (1), 438 (490 SE2d 389).

2. Defendants contend the trial court erred in denying their respective motions to sever the parties based on the likelihood of mistaken identity and the spillover effect of more evidence against one than there was against the other.

The decision of whether to sever was within the trial court’s discretion, and we will not disturb that ruling absent a showing of clear abuse of that discretion. OCGA § 17-8-4; Stephens v. State, 170 Ga. App. 267 (1) (316 SE2d 847). Although eyewitness Latoya Brown questioned the reliability of her own identification testimony — that defendant Courtney G. Shelley was a gunman at the DeKalb County “Waffle House” armed robbery — based on her view that the defendants “look a lot alike,” this uncertainty does not demand a finding that the denial of a motion to sever was an abuse of discretion. See Kelley v. State, 248 Ga. 133, 135 (3) (281 SE2d 589). The factors a trial court must consider in exercising its discretion in regard to a motion to sever are (1) whether the number of defendants will create confusion as to the law and evidence applicable to each, (2) whether there is a danger that evidence admissible against one defendant will be considered against the other despite the court’s instructions, and (3) whether the defendants’ defenses are antagonistic to each other or to each other’s rights. Cain v. State, 235 Ga. 128, 129 (218 SE2d 856). None of these factors is present in the cases sub judice.

There was no danger of confusion based on the number of defendants on trial in the cases sub judice because there were only two. There was no evidence admissible against one defendant which was inadmissible against the other. And the defenses of the respective defendants were not antagonistic. They both asserted alibi defenses. These circumstances demonstrate that the trial court did not abuse its discretion in denying defendants’ motions to sever.

3. Defendants waived their right to complain about allegedly improper comments uttered during the State’s opening statement by failing to object. “A party cannot ignore what he thinks to be error, take his chance on a favorable verdict, and complain on appeal.” West v. State, 224 Ga. App. 190,191 (2) (480 SE2d 238). Defendants’ assertions regarding other allegedly improper comments uttered during the State’s closing argument are unauthorized expansions of each defendant’s third enumeration of error. We therefore have no jurisdiction to consider these assertions. Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649).

4. In their fourth enumeration of error, defendants each assert ineffective assistance of trial counsel. An ineffective assistance of counsel claim must be supported by a showing that trial counsel’s performance was deficient, and that the result of the trial would have been different but for the alleged deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674); Fargason v. State, 266 Ga. 463, 465 (4) (467 SE2d 551). Although each defendant asserts an extensive list of their respective attorney’s inadequacies at trial, neither defendant has proffered argument or citation of authority showing that any of these alleged inadequacies would have changed the trial’s outcome. Under such circumstances, we will not set aside the trial court’s order denying defendants’ motions for new trial based on ineffective assistance of counsel. A trial court’s findings on the effectiveness of counsel must be upheld unless it is shown that those findings are erroneous. Smith v. State, 234 Ga. App. 586, 588 (1) (506 SE2d 406).

Decided August 27, 1999

Reconsideration denied September 8, 1999

Elaine T. McGruder, for appellants.

J. Tom Morgan, District Attorney, Robert E. Statham III, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

5. Defendants’ complaint as to the trial court’s charge on reasonable doubt was similarly rejected in McDuffie v. State, 210 Ga. App. 112,114 (2) (435 SE2d 452). Other challenges to the trial court’s jury instructions are unauthorized expansions of each defendant’s final enumeration of error. We therefore have no jurisdiction to consider these assertions. Krebsbach v. State, 209 Ga. App. at 475 (2), supra.

Judgments affirmed.

Andrews, P. J., and Ruffin, J., concur.


text:
    A99A1437.
    JOINER v. THE STATE.
    (522 SE2d 25)
   Eldridge, Judge.

This Court granted defendant Teresa Ann Joiner’s application for interlocutory appeal from the denial of her motion to suppress blood alcohol test results. In her sole enumeration of error, the defendant contends that the trial court erred in denying her motion because her implied consent notice was untimely under OCGA § 40-6-392 (a) (4). We affirm the trial court’s ruling.

1. The defendant’s reliance on OCGA § 40-6-392 (a) is misplaced. This statute provides that, when a person is arrested for DUI under OCGA § 40-6-391, an implied consent notice for chemical testing must be given at the time of the arrest for DUI in order for the test results to be admissible in a subsequent civil or criminal trial. Accordingly, the defendant asserts that, because she allegedly was under arrest within minutes of a fatal traffic incident, the failure of police officers to give her the implied consent notice at the time of arrest makes the results of her chemical tests inadmissible at trial. However, the defendant’s argument fails for two reasons.

(a) The record clearly demonstrates that the defendant was not arrested for DUI until November 1998, five months after the traffic incident. The facts of this case are as follows: At 11:55 p.m. on June 11, 1998, Officer Jimmy Moreland of the Newton Police Department responded to a report that a pedestrian had been involved in a traffic incident on Highway 91 north of Newton. When Officer Moreland arrived at the accident scene, the defendant was kneeling over the body of her husband, Stokes Joiner. The defendant had run over her husband’s head with her truck. Stokes Joiner had died of a massive head wound before the police arrived. Officer Moreland testified that the defendant repeatedly cried out “I killed my husband” and “Why, Stokes? Why?” Officer Moreland testified that he had been surprised at the scene, because Stokes Joiner had been one of his bosses.

The officer advised the defendant of her Miranda rights, took her into custody because she was extremely distraught, and handcuffed her before placing her in the back of the police car. However, Officer Moreland testified at the motion hearing that, when he took the defendant into custody, he had not had the opportunity to investigate the scene; did not intend to question the defendant; had not conducted field sobriety tests; had not charged the defendant with any crime; and thought that the victim’s death was the result of an accident.

Approximately 30 minutes later, Officer Edward Etheridge of the Georgia State Patrol arrived at the scene. He testified that, by this time, the defendant was in the back seat of the patrol car and was “very emotional. She was yelling. She was screaming. She was trying to get out of the . . . car, indicating that she wanted to run to Mr. Joiner.” Officer Etheridge testified that the defendant was not under arrest when he arrived at the scene; that the defendant was taken into custody because she was the driver of the vehicle that ran over the victim; and that he asked the other officers to transport the defendant to the police station because she was trying to “do things there that we couldn’t allow her to do,” i.e., get out of the police car and run to the victim. Deputy John Lilly transported the defendant to the sheriff’s department. After the defendant was removed from the scene, Officer Etheridge conducted an on-site investigation of the incident.

Special Agent John Pike from the Georgia Bureau of Investigation (“GBI”) interviewed the defendant at the sheriff’s department at approximately 3:28 a.m. regarding the incident. At approximately 5:00 or 6:00 a.m., immediately following his on-site investigation, Officer Etheridge met with the defendant at the sheriff’s department and gave her an implied consent notice, as well as another Miranda warning, because she had been involved in a serious collision which caused a fatality. See OCGA §§ 40-5-55 (a); 40-5-67.1.

The defendant was taken to a hospital in Camilla and was given a blood test at 7:11 a.m. According to Officer Etheridge, the defendant did not request or receive an independent blood alcohol test. The defendant was not charged with any crime at that time and was released from police custody following the blood test without being booked and without bond.

Months later, based upon the results of the defendant’s blood test, Officer Etheridge issued two Uniform Traffic Citations to the defendant for first degree vehicular homicide and DUI. On November 6, 1998, almost five months after the traffic incident, Officer Ether-idge swore out an arrest warrant for the defendant on the same charges. An indictment on these charges was issued on November 16, 1998.

Accordingly, the record in this case demonstrates that the defendant received an implied consent notice and blood test before her arrest for DUI. Therefore, the notice was not untimely under OCGA § 40-6-392. since that statute does not apply to situations where the notice and test precede a DUI arrest.

(b) Further, it does not matter whether the defendant was, in fact, under arrest for any other crime besides DUI prior to the implied consent warnings, because the requirement of OCGA § 40-6-392 (a) (4) does not apply to such arrests. Although OCGA § 40-6-392 (a) (4) does not contain language that expressly limits an “arrest” to one based upon a violation of OCGA § 40-6-391 (the DUI statute), OCGA § 40-6-392 as a whole addresses only the admissibility of evidence in a trial based on a violation of OCGA § 40-6-391. This Court

must seek to give meaning to each part of the statute and to avoid constructions which render a portion of the statute mere surplusage. A statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes in pari materia, are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto. Finally, it is a basic rule of construction that a statute or constitutional provision should be construed to make all its parts harmonize and to give a sensible and intelligent effect to each part, as it is not presumed that the legislature intended that any part would be without meaning.

(Citations and punctuation omitted.) Holmes v. Chatham Area Transit Auth., 234 Ga. App. 42, 44 (505 SE2d 225) (1998). See also Jordan v. State, 223 Ga. App. 176 (477 SE2d 583) (1996). In this case, the relevant DUI statutes include, inter alia, OCGA §§ 40-5-55; 40-5-67.1; 40-6-391; and 40-6-392.

(i) To construe OCGA § 40-6-392 so as to require that an implied consent notice be given “at the time of arrest” to any person involved in a traffic incident which results in a serious injury or death, where it may be unclear as to whether the person was driving under the influence, creates a serious conflict with the express provisions of OCGA §§ 40-5-55 and 40-5-67.1. OCGA § 40-5-55 (a) reads as follows:

any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities. . . . The test or tests shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state who is involved in any traffic accident resulting in serious injuries or fatalities.

(Emphasis supplied.) See also OCGA § 40-5-67.1 (a); Stevenson v. State, 264 Ga. 892, 893 (453 SE2d 18) (1995). As to testing that follows a person’s involvement in such traffic accident, it is not required that the person be arrested prior to such testing. Seith v. State, 225 Ga. App. 684, 686 (484 SE2d 690) (1997); Brown v. State, 218 Ga. App. 469, 470 (1) (462 SE2d 420) (1995); see also Stevenson v. State, supra. However, at the time such tests are requested, an implied consent notice must be given. OCGA § 40-5-67.1 (b)..

The clear purpose of such provisions is to mandate chemical testing in certain cases, particularly those in which the signs and symptoms of DUI may be masked by the driver’s injuries or may not be immediately evident because of the confusion at the scene of a traffic incident. By requesting and performing chemical testing under these circumstances, a determination can be made later as to “whether a violation of [OCGA §] 40-6-391 has occurred, so that the person may in addition be charged with it, and to provide proof thereof.” Davis v. State, 187 Ga. App. 517, 519 (370 SE2d 779) (1988).

(ii) Without this statutory authorization allowing giving the implied consent notice and chemical testing absent an arrest, law enforcement officers are caught in a quandary, i.e., in order for the results of a chemical test to be admissible at trial on DUI charges resulting from a traffic incident involving serious injuries or fatalities, police officers must arrest the driver for DUI and give them an implied consent notice upon such arrest, even if there was insufficient probable cause at the time of the incident for an arrest based upon DUI. See State v. Burke, 230 Ga. App. 392 (496 SE2d 755) (1998); Davis v. State, supra. Such interpretation of this statute is contrary to the law and public policy of this state and is expressly rejected by this Court.

(iii) Further, the legislative intent to allow chemical testing under these circumstances at times other than “at the time of arrest” is demonstrated in the timing of the adoption of these statutes. OCGA § 40-6-392 requiring notice “at the time of arrest” was adopted in 1983. Ga. L. 1983, p. 1000, § 14. Six years later, in 1989, the legislature adopted the provision of OCGA § 40-5-55 (a) requiring that chemical testing for drivers involved in certain traffic incidents be administered “as soon as possible.” Ga. L. 1989, p. 1698, § 1. OCGA § 40-5-67.1, mandating that an implied consent notice be given at the time the chemical test is requested, was not adopted until 1992.

It is presumed that the legislature enacts statutes with “full knowledge of the existing condition of the law and with reference to it.” (Citations and punctuation omitted.) Hillman v. State, 232 Ga. App. 741, 743 (1) (b) (503 SE2d 610) (1998). One can presume that the legislature, in subsequently adopting OCGA §§ 40-5-55 and 40-5-67.1, intended to provide for the admissibility of chemical test results in situations where a person is arrested for DUI after a chemical test reveals his or her intoxication, as in this case.

Therefore, it does not matter whether the defendant had been arrested for vehicular homicide or any other crime besides DUI prior to the informed consent and chemical test. This Court cannot construe OCGA § 40-6-392 (a) (4)’s “at the time of arrest” implied consent notice requirement as applying to any arrest, but only to DUI arrests which occur prior to an implied consent notice. This Court determined in Division 1 (a), supra, that the defendant was not under arrest for DUI prior to the implied consent notice and chemical testing. Accordingly, the prohibitions of OCGA § 40-6-392 (a) do not apply in this case.

2. The only remaining issue is whether the notice was timely under OCGA §§ 40-5-55 and 40-5-67.1. Reading such statutes in pari materia, the required timing of the implied consent notice for a person who has been driving a vehicle in this state, is involved in a traffic incident resulting in serious injuries or a fatality, and is not arrested at that time for a violation of OCGA § 40-6-391 is as follows: (a) law enforcement officers must administer chemical tests for alcohol and drugs as soon as possible, and (b) the implied consent notice must be given at the time such test is requested, which may or may not be at the time of actual testing.

Because such incidents often involve extensive investigation at the scene by police officers, removal of victims and wreckage from the scene, and various other factors which could potentially delay this chemical testing, the determination of whether the implied consent notice and tests were given in a timely manner must necessarily be determined by the individual circumstances of each case. See generally Edge v. State, 226 Ga. App. 559, 561 (487 SE2d 117) (1997); Seith v. State, supra at 687. In reviewing the trial court’s determination as to timeliness on appeal,

[w]hile the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citations and punctuation omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). Further, “[t]his Court must construe the evidence most favorably to upholding the trial court’s judgment in this regard. [Cits.]” State v. Burke, supra at 393.

In this case, the trial court applied the wrong standard when it considered whether the implied consent notice was untimely when not given “at the time of arrest,” under OCGA § 40-6-392 (a) (4). See Division 1, supra. However, even under this stricter standard, the trial court found that the circumstances of this case warranted such delay. We agree.

The defendant was discovered on the highway near her truck and her dead husband’s body at 11:55 p.m. The defendant was “yelling” and “screaming” when placed into the police car by the investigating officers. At this time, there was a “fair risk” that she “would not have been able to make an intelligent choice concerning the state’s request for a blood test, and there also was a fair risk that [she] would not have been able to understand [her] right to undergo an independent test.” Townsend v. State, 236 Ga. App. 530, 532 (1) (b) (511 SE2d 587) (1999).

Further, when GBI officers questioned the defendant three hours later, Officer Etheridge still had not returned from the scene of the incident and the defendant had not been charged with any crime. As soon as he finished investigating the scene, Officer Etheridge met with the defendant and gave her an implied consent notice and Miranda warnings. Shortly after the blood test, the defendant was released from custody without being charged.

Decided August 11, 1999

Reconsideration denied September 8, 1999.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, for appellee.

Under the unique circumstances of this case, we find that the defendant received a timely implied consent notice under OCGA §§ 40-5-55 and 40-5-67.1. There was no error.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

        Miranda v. Arizona, 384 U. S. 436, 444 (86 SC 1602, 16 LE2d 694) (1966).

       If an individual submits to such testing by the State, they also are entitled to additional independent tests at their own expense. Id. An individual has the right to refuse such testing under OCGA § 40-5-67.1 (d), and the consequences for such refusal include suspension of one’s driver’s license or admission of such refusal in a criminal trial. OCGA §§ 40-5-67.1 (d); 40-6-392 (d).


text:
    A99A1539.
    WELDY v. THE STATE.
    (521 SE2d 858)
   McMurray, Presiding Judge.

Defendant Michael Calvin Weldy appeals his jury conviction for two counts of aggravated child molestation and two counts of child molestation.

1. Defendant contends the trial court erred in excluding evidence that the four-year-old victim may have falsely accused another person (her babysitter) of child molestation.

Before admitting proof of a victim’s false allegation of sexual misconduct by another, the trial court must make a threshold determination outside the presence of the jury in the exercise of its discretion and determine whether a reasonable probability of falsity exists. Smith v. State, 259 Ga. 135,136 (1) (377 SE2d 158). The definition of “reasonable probability” in such context has been said to be a probability sufficient to undermine confidence in the outcome. Strickland v. State, 205 Ga. App. 473, 474 (422 SE2d 312). At a hearing on this subject in the case sub judice, it was shown that the victim, when she was three years of age, affirmed during an interview with a Department of Family & Children Services (“DFCS”) caseworker that her babysitter touched her “bottom.” There is no indication in the record, however, that this allegation is false, or that it even related to a prior act of child molestation. The trial court recognized these deficiencies and excluded defendant’s use of the victim’s statement regarding her babysitter. Under such circumstances, we cannot say the trial court abused its discretion in excluding defendant’s use of the victim’s prior statement regarding her babysitter. See Eason v. State, 215 Ga. App. 614 (451 SE2d 820). It is highly unlikely that introduction of this evidence would have aided defendant’s cause or otherwise undermined the State’s case. See Strickland v. State, 205 Ga. App. at 474, supra.

Decided August 27, 1999

Reconsideration denied September 8, 1999.

Neil A. Smith, for appellant.

Lydia J. Sartain, District Attorney, Jennifer C. Bagwell, Assistant District Attorney, for appellee.

2. Defendant contends in his second enumeration of error that “[t]he trial court erred in its determination that the alleged victim’s taped statements were reliable.” An examination of the trial transcript reveals that defendant waived his right to raise this assertion on appeal by failing to object at trial to admission of an audiotape and a videotape of the victim’s interview with DFCS caseworkers. Indeed, the trial transcript reveals that defendant’s trial attorney insisted that the jury consider these recordings and follow along with a transcript of the victim’s taped interview. A criminal defendant cannot complain of errors or rulings which his own conduct procured or aided in causing. See Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251). Arguments challenging the admission of statements by the victim other than her taped interview constitute unauthorized expansions of defendant’s second enumeration of error. Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649).

3. Defendant’s final enumeration of error challenges the Hall County Sheriff’s practice of greeting prospective jurors as they enter the courthouse for jury duty. We reject this assertion for the same reasons this Court rejected an identical assertion in House v. State, 237 Ga. App. 504, 506 (2) (a) (515 SE2d 652).

Judgment affirmed.

Andrews, P. J, and Ruffin, J., concur.


author: Phipps, Judge.

text:
    A99A0969.
    MARSHALL v. THE STATE.
    (522 SE2d 273)
   Phipps, Judge.

David Carl Marshall was convicted by a Richmond County jury of burglary and armed robbery. Marshall enumerates as error the trial court’s denial of his motion for a directed verdict, charges to the jury on reasonable doubt and reasonable doubt as to identity, and denial of his motion for a new trial. He also claims that counsel was ineffective and that the evidence was insufficient to authorize the verdict. We find no merit in these enumerations of error, and we affirm.

Viewing the evidence in a light most favorable to the jury’s verdict, Gracie Watson and Lucille Levert, two elderly sisters and house mates, received their monthly Social Security and Veterans Administration checks on November 1, 1995. When the mail arrived, the sisters immediately took the checks to the grocery store to cash the checks and settle their outstanding bill with the store. Marshall, who evidently had seen the sisters retrieve the checks from their mail, followed them into the grocery store. Marshall asked them if they had cashed their checks and then demanded “his money” for a “hot pad.” The store owner ordered Marshall to leave and he did. The sisters returned home to find Marshall had broken into their house. He grabbed a screwdriver and held it to Watson’s throat, forcing her onto the bed. Although the sisters attempted to resist, Marshall was able to take $300 from Watson.

1. In his first and second enumerations of error, Marshall claims the evidence was insufficient to authorize the verdict and that the trial court erred in denying his motion for a directed verdict. We must reverse if “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 324 (99 SC 2781, 61 LE2d 560) (1979).

The State has the burden of proving Marshall’s identity as the perpetrator of the offense. See Mallory v. State, 271 Ga. 150, 152-153 (4) (517 SE2d 780) (1999); Hodges v. State, 147 Ga. App. 434 (249 SE2d 149) (1978). When asked if the man who had approached her about the heating pad was in the courtroom, Watson responded, “I don’t see him,” although she did testify on redirect examination that Marshall looked like her attacker. Levert was also unable to identify Marshall as her assailant.

Alphonzo Williams, a detective for the Augusta Police Department, testified that Watson and Levert had, separately, been shown 18 photographs, and that each immediately identified Marshall as their attacker. Williams also testified that each showed a high degree of certainty in identifying the appellant.

Although Marshall was not identified unequivocally in court, this does not require a reversal. Boscaino v. State, 186 Ga. App. 133 (1) (366 SE2d 789) (1988). “The eyewitness’ failure positively to identify appellant in court did not invalidate [his] earlier unequivocal identification. ‘That a witness is somewhat hesitant of an identification on one occasion is not contradictory to a firm identification upon another. . . .’ [Cit.]” Hatcher v. State, 175 Ga. App. 768, 769 (334 SE2d 709) (1985).

After reviewing the evidence in a light most favorable to the ver-diet, we find that the State produced evidence from which a rational trier of fact could have found Marshall guilty of burglary and armed robbery beyond a reasonable doubt.

2. In his third and fourth enumerations of error, Marshall challenges the trial court’s jury charges on reasonable doubt and reasonable doubt as to identity. Marshall made no objection to these jury charges at trial. “[A] failure to object [to a jury charge] in a criminal case constitutes a waiver unless there has been substantial error which is harmful as a matter of law.” Early v. State, 218 Ga. App. 869, 870 (463 SE2d 706) (1995).

We find no error in the trial court’s charge to the jury regarding reasonable doubt. This court has upheld a charge which contains language nearly identical to the language complained of by Marshall. Andrews v. State, 236 Ga. App. 152 (511 SE2d 258) (1999).

The Supreme Court of Georgia has upheld a charge with respect to identity which is essentially the same charge which appellant has enumerated as error. See Mallory v. State, supra.

Reading the charges as a whole, the trial court did not improperly define the evidentiary standard of reasonable doubt. Therefore, we find no error.

3. In his fifth and sixth enumerations of error, Marshall claims that he received ineffective assistance of counsel at trial and in preparation for trial. We disagree. Georgia adheres to the two-part test for effectiveness stated in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). See Perkins v. State, 260 Ga. 292 (392 SE2d 872) (1990). Marshall must show that (1) his counsel’s performance was deficient and (2) the deficient performance prejudiced the defense. Strickland, 466 U. S. at 687.

Marshall submits that it was deficient preparation for trial for his attorney to fail to attempt to interview the victims of the crime. However, counsel did speak to the victims prior to trial, and her cross-examination of the victims shows no lack of preparation. Marshall also takes the position that counsel failed to spend adequate time in preparing for the trial, and that the lack of preparation was compounded by counsel’s failure to ask for a continuance and by her failure to meet in person with Marshall prior to the trial (although she did speak with him by telephone). Although Marshall’s counsel had been recently appointed to the case, she did spend an entire weekend preparing for trial. We do not find that as a matter of law this was inadequate. A review of the record shows that Marshall’s trial counsel was prepared for trial and was an effective advocate.

4. Inasmuch as we have denied Marshall’s enumeration of errors one through six, his seventh enumeration of error, alleging that the trial court erred in denying his amended motion for a new trial, has no merit.

Decided September 8, 1999.

Stanley C. House, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith and Eldridge, JJ., concur.


text:
    A99A1092.
    CONTRACT HARVESTERS, INC. v. MEAD COATED BOARD, INC. et al.
    (522 SE2d 260)
   Eldridge, Judge.

Appellant, Contract Harvesters, Inc. (“Contract Harvesters”), appeals from the trial court’s grant of summary judgment in favor of the appellees, Mead Coated Board, Inc. (“Mead”) and Sam Rigdon.

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 nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). Summary judgment appeals are de novo reviews because summary judgment rulings are strictly matters of law and are not based at all on finding of facts, made by court or jury, nor on weighing of evidence, nor on credibility of witnesses. Summary judgment rulings are based on undisputed facts.

(Citations and punctuation omitted.) Jenkins v. Brice, 231 Ga. App. 843-844 (499 SE2d 734) (1998); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in the light most favorable to the appellant as the non-moving party, the evidence shows the following: Contract Harvesters is a Georgia corporation which was engaged in the logging business. Charles Hester is the President and sole shareholder of Contract Harvesters. Contract Harvesters began to do business with the predecessor of Mead in approximately 1965 or 1966 and continued the business relationship with Mead until June 23, 1993. For several years prior to 1993, Contract Harvesters and Mead entered into an annual contract each January. Each annual contract ended on December 31 of the year in which it was signed. The annual contract did not identify any specific tracts or volume of timber to be cut. Separate contracts or addenda to the annual Timber Cutting Agreement were entered into between Mead and Contract Harvesters during the course of each annual Timber Cutting Agreement and became part of the annual agreement. These agreements were entitled “Delivery Orders,” and described the individual tract to be cut, the date by which such timber was to be harvested, and the price to be paid for the timber. The price to be paid for the timber under each delivery order was separately negotiated and took into account a number of factors, including the location of the tract and the terrain of the land on which the timber was to be cut. Under the terms of the annual contract, delivery orders which were not completed the preceding year became part of the annual contract entered into in January of the new year. This case arose out of events which occurred in 1993.

1. Contract Harvesters alleges that the trial court erred in granting appellees’ motion for summary judgment, in that there is a genuine issue of fact as to the appellees’ breach of the January 2, 1993, written contract with Contract Harvesters.

Both parties agree that they entered into an annual timber cutting agreement on January 2, 1993, which was effective through December 31, 1993. The 1993 annual contract set forth the general terms governing Contract Harvesters’ timber harvesting work on behalf of Mead. The parties further agree that there were nine delivery orders which were entered into between the parties that became addenda to and part of the 1993 annual contract. Each delivery order contained a description of a tract of timber to be cut, the price Contract Harvesters would be paid for the timber, and the dates for performance. The 1993 annual contract and the nine addenda thereto were signed by Sam T. Rigdon, who was a District Manager for Mead, on behalf of Mead, and by Charles Hester on behalf of Contract Harvesters.

Around April 1993, Rigdon, on behalf of Mead, orally informed Contract Harvesters that it would not be given any new delivery orders because its production was no longer needed and because it had cut over the line on some tracts. Rigdon further orally informed Contract Harvesters that it had sixty days to complete work on the delivery orders that were pending. The last day that Contract Harvesters was allowed to deliver cut timber to Mead was June 23,1993. Appellees argue that they did not breach the contract by electing not to give Contract Harvesters additional tracts of timber to cut and by requiring Contract Harvesters to complete its work under the contract within 60 days. However, it is undisputed that all nine delivery orders gave Contract Harvesters substantial time beyond June 23, 1993, the last date Contract Harvesters was allowed to deliver timber to Mead, to complete the cutting and delivery of the timber.

Charles Hester testified that, out of the nine delivery orders, three delivery orders had not been completed when Contract Harvesters was given notice, without reason and opportunity to cure, that it had sixty days to complete its work; that Contract Harvesters was unable to complete cutting the timber on these three tracts due to Mead’s premature termination of the contract; that the remaining timber left on these three tracts was given to other loggers to cut; and that Contract Harvesters was not paid for the timber it was unable to cut due to the premature termination of the contract by Mead. Hester further testified that Contract Harvesters ceased doing business on June 23, 1993, because Mead was the only company for which it cut timber.

Further, paragraph 17 of the 1993 annual contract set forth the procedure for early termination of the contract. Under paragraph 17, the contract could “be terminated by either party in the event of a breach of the Agreement by the other party, if such breach [had] not been cured within ten (10) days after written notice to the party accused of breaching the Agreement, setting out the nature of such breach.” There was no evidence of record that Mead followed the requirements of paragraph 17 prior to terminating the contract.

Consequently, a genuine issue of fact exists as to such claim, and it was error for the trial court to grant the appellees’ motion for summary judgment on the breach of the January 2, 1993 written contract.

2. Contract Harvesters contends that the trial court erred in granting the appellees’ motion for summary judgment on its claim based on the appellees’ agreement to provide Contract Harvesters with a minimum quota of 850 to 1,000 cords of timber per week. While Contract Harvesters asserts that it brought this claim under the alternative theories of breach of oral contract and fraud as a tort, this was not asserted in the trial court. At the trial level, Contract Harvesters only set forth a claim for fraud. “Grounds for reversal which may be considered on appeal are limited to those which were argued before the trial court.” (Citations and punctuation omitted.) In the Interest of C.W, 227 Ga. App. 763, 767-768 (3) (490 SE2d 442) (1997). Therefore, this Court will not consider the oral contract claim on appeal.

In its answer and at summary judgment, Mead denied that it promised Contract Harvesters a certain quota of timber to be cut weekly. However, Contract Harvesters submitted evidence to the contrary, creating a material issue of fact as to fraud. Charles Hester, by both deposition and affidavit, stated that in February 1993, Rigdon, individually and on behalf of Mead, orally promised Contract Harvesters a quota of 850 to 1,000 cords of timber per week, if Contract Harvesters would purchase new equipment and upgrade its existing equipment; that 850 to 1,000 cords of timber would have consisted of between 85 and 120 truck loads of timber; that in reli-anee on appellees’ promise, Contract Harvesters spent approximately $500,000 on new equipment and upgrading its existing equipment; that appellees provided Contract Harvesters with a quota of 850 to 1,000 cords of timber per week for approximately one month; that after about one month, appellees began to lower Contract Harvesters’ quota below 850 cords per week; and that within two months, Contract Harvesters’ quota was down to 17 to 20 loads per week. Hester further testified that after June 23, 1993, he had to sell almost all of Contract Harvesters’ equipment for between $250,000 and $300,000, which was at a loss, and that Contract Harvesters retained only a loader, two log trucks, and a motor grader, which were worth only about $75,000.

Where, as here, “the facts, as testified to by the parties, create a conflict in the evidence as to a material issue, summary judgment is precluded.” (Citation omitted.) Bearden v. Bearden, 231 Ga. App. 182, 184 (499 SE2d 359) (1998). Accordingly, the trial court’s grant of summary judgment to the appellees on Contract Harvesters’ fraud claim was error.

3. Contract Harvesters further alleges that the trial court erred in granting appellees’ motion for summary judgment, in that there is a genuine issue of fact as to whether Mead was indebted to Contract Harvesters for timber that was delivered and improperly classified as cull wood during 1993.

The evidence shows that when Contract Harvesters delivered a load of timber to the scale house at Mead’s sawmill, an employee of Mead would inspect the timber. After the timber was taken off the truck, the driver would be given a ticket which indicated how much of the timber was determined to be cull wood. Contract Harvesters was paid at a reduced rate for the timber determined to be cull wood. Contract Harvesters contends that timber was improperly classified by Mead as cull wood and that it was not paid at the proper rate for this timber.

In support of its motion for summary judgment, Mead submitted as evidence the affidavits of Rigdon and James R. Shepard, who is employed by Mead in its accounting department and holds the position of “Manager, Accounting, Woodlands and Wood Products.” Rig-don averred that Contract Harvesters was paid for all the wood delivered to Mead which was determined to be cull wood. Shepard averred that he had examined the accounting records and that Contract Harvesters was paid for all the “timber cut and delivered in the year 1993, with the exception of one check in the amount of $2.25, which was returned by Contract Harvesters.”

Decided September 8, 1999.

Ham, Jenkins, Wilson & Wangerin, Phillip B. Ham, for appellant.

Lawson, Davis & Pickren, Paul R. Jordan, Wayne Jernigan, for appellees.

Mead, did not tender any evidence that the timber they designated as cull wood and for which they paid Contract Harvesters at a reduced rate was, in fact, cull wood and not usable in the same manner as the timber not designated as cull wood. However, Contract Harvesters tendered evidence, through both the deposition and affidavit of Hester, that the usual standard in the timber industry was for cull wood to be set aside and not processed with the normal timber. However, Mead processed the timber, which it designated as cull wood, along with, and in the same manner as, the normal timber. This testimony creates an inference that such timber was improperly designated as cull wood and that Contract Harvesters was improperly paid for such timber under the terms of the contract. Accordingly, it was error for the trial court to grant summary judgment to appellees on this claim.

4. Contract Harvesters also alleges that the trial court erred in having ex parte communications with one of the attorneys for the appellees. In this enumeration, Contract Harvesters makes only a general allegation and points to no specific ex parte communications which allegedly occurred. Further, Contract Harvesters “give[s] no reference to the record, cite[s] no áuthority, and make[s] no argument].] . . . Therefore, under Court of Appeals Rule 27 (c) (2), this Court deems said claim of error abandoned. [Cits.]” Chancellor v. Gateway Lincoln-Mercury, 233 Ga. App. 38, 45 (502 SE2d 799) (1998).

Additionally, this Court, having examined the entire record, finds there is nothing in the record which shows that appellees made any ex parte communications with the trial court. “When enumerations of error are unsupported by the record, no question for decision thereon is presented to this [C]ourt on appeal.” (Citations and punctuation omitted.) Dyer v. State, 169 Ga. App. 387, 388 (312 SE2d 861) • (1984).

.. Judgment reversed.

Pope, P. J., concurs. Smith, J., concurs in judgment only.

       Cull wood is timber that is not usable or suitable for a particular cut, does not meet the standards and specifications established by the company for whom it is being cut, and has a substantially reduced value.


author: Ellington, Judge.

text:
    A99A1578.
    TAYLOR v. THE STATE.
    (522 SE2d 266)
   Ellington, Judge.

Donna Taylor was convicted after a bench trial of trafficking in methamphetamine, OCGA § 16-13-31 (e), and of several other drug, traffic, and firearms charges. Taylor appeals from the judgment of conviction, contending the trial court erred in denying her motion to suppress evidence seized from her person at the jail. Because the search was lawful, we affirm.

On appeal from a motion to suppress, the evidence is viewed in a light most favorable to upholding the trial court’s judgment. The credibility of witnesses and the weight accorded their testimony “rest with the trier of fact, who is under no obligation to believe a witness, even in the absence of contradictory testimony.” (Citation and punctuation omitted.) Anderson v. State, 267 Ga. 116, 118 (2) (475 SE2d 629) (1996). Viewed in this light, the record reveals the following:

On February 10, 1996, after conducting surveillance, investigators with the Gordon County Sheriff’s Office stopped Donna Taylor as she drove away from the residence of a reliable confidential informant (“Cl”). Based on the earlier surveillance and information obtained moments before the arrest during a telephone conversation with the Cl, the investigators believed Taylor was then in possession of at least an ounce of methamphetamine. The Cl told the investigators that Taylor had the drugs “down in her pants, not in her pants pocket.” Moreover, the Cl reported that before Taylor left the residence, she prepared a sample of the drug for his use, leaving a mixture of methamphetamine and water in a syringe. During a consent search of Taylor’s truck, the investigators found electronic scales, a facial compact containing a white powdery substance, two spoons, T-shirts bearing the acronym “S.L.U.T.,” which stands for “Stop Legalized Urine Testing,” and a concealed .25 caliber pistol. Taylor was placed under arrest for possessing the pistol and transported to the Gordon County Jail.

When Taylor was booked into the jail, a female dispatcher employed by the Sheriff’s Office searched Taylor pursuant to instructions from one of the investigators and in accordance with jail policy. In a private room, the dispatcher asked Taylor to disrobe. As Taylor complied, the dispatcher noticed a large bulge in Taylor’s underwear. The dispatcher retrieved from Taylor’s underwear a paper towel-wrapped package containing 57.4 grams of methamphetamine. Taylor testified that the dispatcher forcibly recovered the methamphetamine during a body cavity search. Upon finding the methamphetamine, the investigators sought and obtained a warrant to take samples of Taylor’s blood and urine to test for the presence of drugs. The test results were positive for methamphetamine and diazepam.

Taylor argues that the methamphetamine evidence should be suppressed because it was obtained following an illegal body cavity search. Moreover, she argues that her blood and urine test results should be suppressed because the warrant which authorized taking the test samples was based upon and tainted by the earlier seizure of methamphetamine. We do not agree.

To entertain Taylor’s argument that she was subjected to an illegal body cavity search, we must conclude the court found that such a search occurred. The trial court, however, in findings issued from the bench, specifically credited the testimony of the employee who searched Taylor. The court found that Taylor was strip-searched by a female jail employee who “in plain view . . . observed a bulge under [Taylor’s] clothes.” The court did not believe Taylor’s testimony that she was subjected to a more invasive body cavity search, and we are bound by that finding. See, e.gAnderson v. State, 267 Ga. at 118 (2).

1. Taylor’s strip search was lawful for two reasons:

(a) Taylor was arrested for illegally possessing a firearm, a serious criminal offense. She does not contest the legality of that arrest. Once a defendant has been placed under custodial arrest, police may conduct a search of his or her person. United States v. Robinson, 414 U. S. 218, 235 (94 SC 467, 38 LE2d 427) (1973); Eberhart v. State, 257 Ga. 600, 602 (2) (361 SE2d 821) (1987); Causey v. State, 208 Ga. App. 389, 390 (3) (430 SE2d 594) (1993). “It is also plain that searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.” United States v. Edwards, 415 U. S. 800, 803 (94 SC 1234, 39 LE2d 771) (1974). However, although the scope of a custodial search is broad and is premised solely upon the legality of the arrest and not upon a showing of probable cause that weapons or contraband would be found, United States v. Robinson, 414 U. S. at 235, searches which involve the inspection of or intrusion into the body will be closely scrutinized to see that they comport with due process. United States v. Edwards, 415 U. S. at 808, n. 9; Rochin v. California, 342 U. S. 165, 172-174 (72 SC 205, 96 LE 183) (1952). Whether the scope of that personal search is valid depends, generally, upon the reasonableness of the search in light of its purpose. See Holtzendorf v. State, 125 Ga. App. 747, 749 (188 SE2d 879) (1972).

Based upon the evidence then available, the investigators reasonably believed that Taylor had a large quantity of methamphetamine concealed in her pants, contraband she could discard or destroy at the first available opportunity. Police are authorized to use reasonable measures to prevent the destruction or concealment of evidence. See Merriweather v. State, 228 Ga. App. 246, 248 (3) (491 SE2d 467) (1997). Because the methamphetamine was hidden in Taylor’s pants, a search of her clothing and a visual inspection of her body were necessary. Consequently, the investigators took Taylor to the jail where she could be searched by a female jail employee in relative privacy. The strip search was conducted in a reasonable manner without abuse or intrusion into the body; therefore, we find it did not violate Taylor’s Fourth Amendment rights. See United States v. Robinson, 414 U. S. at 235; United States v. Klein, 522 F2d 296, 300 (1st Cir. 1975); Swain v. Spinney, 932 FSupp. 25, 27 (2) (D. Mass. 1996).

Decided September 8, 1999.

Adam & Talley, Jeffery C. Talley, J. Lane Bearden, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

(b) Taylor was strip-searched as part of an inventory search incident to her admission into the prison population. The United States Supreme Court has held that pre-trial detainees may be subjected to strip searches and “visual body cavity inspections” on less than probable cause when, applying a balancing test, the need for the particular search outweighs the detainee’s privacy interest and the search is conducted in a reasonable place and manner. Bell v. Wolfish, 441U. S. 520, 559-560 (III) (D) (99 SC 1861, 60 LE2d 447) (1979); see also United States v. Edwards, 415 U. S. at 802-804, n. 6; Scott v. State, 216 Ga. App. 692, 696 (5) (455 SE2d 609) (1995). “Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U. S. at 559.

The trial court found that Taylor’s search was conducted in a private room by a female jail employee. We find no case or statutory law that requires the female who searched Taylor to be a certified police officer. The search was performed at the direction of a police officer who had reason to believe that Taylor had contraband hidden beneath her clothes. The search was conducted in a reasonable manner, and it did serve the legitimate purposes of preserving evidence of crime and of keeping contraband from the prison population. The search was proper. See Bell v. Wolfish, 441 U. S. at 559-560; Swain v. Spinney, 932 FSupp. at 27-28.

2. Because the strip search was lawful, it did not taint the subsequent warranted search and seizure of Taylor’s blood and urine samples. See State v. Wright, 204 Ga. App. 382, 383 (2) (419 SE2d 334) (1992). The trial court did not err in denying Taylor’s motion to suppress.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


text:
    A99A1661.
    MURRY v. THE STATE.
    (522 SE2d 269)
   McMurray, Presiding Judge.

This appeal followed defendant’s conviction for possession of less than an ounce of marijuana.

On September 25, 1998, Lieutenant K. T. Smith of the Clayton County Sheriff’s Department, just after initiating a routine traffic stop, observed “an object [go] outside the [suspect car’s] passenger side window.” After the car stopped, Lieutenant Smith investigated the area where the object was ejected and discovered “a clear plastic baggie with a green leafy substance in it, suspected marijuana.” The car’s driver, Tommy Douglas, denied owning the suspected marijuana, but defendant Murry, the car’s front seat passenger, accused Douglas of possessing the suspected marijuana and tossing it out the passenger window before yielding to Lieutenant Smith’s stop signal. Held:

1. Since defendant stipulated at trial to the admission into evidence of his two prior convictions for possession of less than an ounce of marijuana, he cannot complain that the trial court erred in admitting these prior convictions into evidence as similar transaction evidence. A criminal defendant cannot complain of an error or ruling which his own conduct procured or aided in causing. See Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251).

2. The trial court overruled defense counsel’s relevancy objections at trial after the State’s attorney directed defendant to hold and smell the crime scene contraband (which Lieutenant Smith had already identified as marijuana) and confirm that the substance was marijuana. The trial court also overruled defense counsel’s relevancy objections after the State’s attorney handed defendant a five-year-old photograph which depicts defendant posing while holding a cigar-like object near his mouth (which the State’s attorney characterized as a marijuana laden cigar) and asked defendant — “Does this fairly and accurately depict you smoking marijuana?” These objections are the only basis for defendant’s second enumeration of error, which contends that “[t]he trial court abused its discretion by allowing the State to cross-examine [him] with impermissible questions that induced [defendant] to place his character in issue.”

Because defendant did not complain at trial that the State’s attorney’s questioning impermissibly placed his character in issue, the error assigned in defendant’s second enumeration is not preserved for review. Waldrip v. State, 267 Ga. at 748 (12) (482 SE2d 299).

3. Defendant’s third and fourth enumerations of error challenge the admission into evidence of the photograph depicting him with the cigar-like object which the State characterized as marijuana. Defendant specifically argues that this photograph impermissibly placed his character in issue and that the photograph was improperly admitted for impeachment purposes. Because defendant did not make an objection on these bases at trial, the alleged errors are not preserved for review. Waldrip v. State, 267 Ga. at 748 (12), supra.

Decided September 8, 1999.

Walter M. Chapman, for appellant.

Keith C. Martin, Solicitor, Michael L. Tripp, Assistant Solicitor, for appellee.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.