text:
    A94A0432.
    CLARK v. THE STATE.
    (441 SE2d 885)
   Blackburn, Judge.

In a three-count indictment, the appellant, Adrian Bernard Clark, was charged with violating the Georgia Controlled Substances Act. Following the trial court’s denial of his motion to suppress, Clark pled guilty to the offenses charged, reserving the right to challenge on appeal the trial court’s denial of his motion to suppress in accordance with Mims v. State, 201 Ga. App. 277 (1) (410 SE2d 824) (1991).

On April 17, 1992, J. K. Taylor, an investigator with the Gwinnett County Police Department’s Narcotic Unit, received a telephone call from a confidential, reliable informant that Clark was selling cocaine out of a motel room located within the county. Approximately a month earlier, the investigator had received information from another informant that Clark had been selling cocaine from his Gwinnett County residence and this information had been confirmed through a controlled buy arranged by Taylor.

As a result of his receipt of this recent information, the investigator met with the informant at his office, searched her for money and contraband, and instructed her to purchase $50 in cocaine from Clark at the motel that afternoon. Taylor had known the confidential informant for several years and the informant had assisted the department in the investigation of various drug-related offenses. The informant was given county funds with recorded serial numbers to facilitate the transaction. Taylor followed the informant in a separate vehicle to the motel and sat in a nearby parking lot to observe the transaction. After the informant and Clark briefly talked outside the motel room, Clark returned inside his motel room, and afterwards, proceeded to meet the informant in the parking lot where the investigator awaited. Clark was accompanied in his vehicle by his sister. The informant walked over to Clark’s vehicle, leaned inside the driver’s side window where Clark was seated, and gave Clark money. The hands of the informant and Clark met again as Clark handed the informant a package containing cocaine. Thereafter, Clark returned to his room.

A few minutes later, Clark and his sister left the motel, and the investigator followed the two for a few miles. With the assistance of other narcotic officers, Clark’s vehicle was stopped. Upon his refusal to lie down on the ground pursuant to Taylor’s request, Clark was forcibly placed on the pavement, at which time, four pieces of crack cocaine dropped out of his hand. The cocaine was packaged in a manner similar to the cocaine recovered in the earlier controlled buy. Clark was arrested for the sale of cocaine and possession of cocaine with the intent to distribute, and the officers subsequently searched his vehicle and his person. Approximately $900 in currency, which included $30 in county funds, were found on Clark during the search.

Taylor returned to the office of the motel and was informed by the motel’s manager that the motel room in question was registered in Clark’s name. Thereafter, he telephoned Officer Halcome with the department and instructed him to prepare an affidavit and an application for a search warrant for the search of the motel room. The affidavit, which contained information relayed to him by Taylor, was the only evidence presented to the issuing magistrate. The magistrate executed the search warrant and Halcome delivered the warrant to Taylor at the motel. During the officers’ search of the room, they discovered a bag containing marijuana and cocaine packaged in a manner similar to the cocaine recovered earlier, and various drug paraphernalia.

Initially, Clark argues that the officers lacked probable cause to detain him and subsequently search him without a warrant. However, the officer saw Clark sell contraband to the informant, and not only was he authorized to stop Clark’s vehicle, but he, in fact, “had a duty to do so.” Weaver v. State, 208 Ga. App. 105, 107 (430 SE2d 60) (1993). Further, viewing the totality of the circumstances, the officers had the requisite probable cause to arrest Clark in the absence of a warrant. The facts and circumstances within the knowledge of the officers were sufficient to warrant a prudent man in believing that Clark had committed an offense. Vaughn v. State, 247 Ga. 136 (274 SE2d 479) (1981); McKenzie v. State, 208 Ga. App. 683, 684 (431 SE2d 715) (1993). See also OCGA § 17-4-20. Clark’s reliance upon Kelly v. State, 129 Ga. App. 131 (198 SE2d 910) (1973), is misplaced. The officers in Kelly, unlike the case at bar, did not observe the accused therein commit any offense in their presence, and there was not a scintilla of evidence that any unlawful criminal activity had been committed prior to the warrantless arrest of the accused. We reject Clark’s assertion that the officers were without authority to search his person following his arrest because “[o]nce a defendant has been placed under custodial arrest, police may search his person, incident to that arrest, for weapons or contraband.” (Citations and punctuation omitted.) Causey v. State, 208 Ga. App. 389, 390 (430 SE2d 594) (1993).

Next, Clark maintains that the officers illegally searched his room prior to obtaining a search warrant. However, the testimony produced at the motion to suppress hearing shows that two officers stood outside of the room before the warrant was obtained in order to secure the room and prevent anyone from entering the room and removing evidence. The officers did not search the room until after a properly executed warrant had been issued and delivered to them.

Lastly, Clark challenges the sufficiency of the affidavit used to support the search warrant. He asserts that the affidavit does not establish the factual basis for the informant’s reliability and the affidavit did not state that the informant knew that contraband was located in the motel room or that anyone had seen contraband inside of the room.

In determining the sufficiency of an affidavit to support the issuance of a search warrant, the Supreme Court in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983) adopted the totality of the circumstances test. “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a ‘substantial basis for concluding’ that probable cause existed. [Cits.]” (Punctuation omitted.) State v. Law, 208 Ga. App. 744, 745 (432 SE2d 110) (1993).

While Clark asserts that the affidavit did not state a factual basis from which the magistrate could determine the reliability of the confidential informant other than the attesting officer’s conclusory statement as to the informant’s reliability, “the informant in this case demonstrated h[er] reliability by meeting with the [investigator] . . . and putting [her] self on the line by participating in the controlled purchase.” McKenzie, supra at 684. We further reject Clark’s assertion that the affidavit did not state a basis for the belief that contraband was in the motel room. The attesting officer stated in the affidavit that a controlled purchase of cocaine was made after the informant met with Clark at the motel, and “[t]his statement alone provided a substantial basis for the conclusion that drugs and marked bills would probably be found in the [room]. [Cit.]” Id. at 685. Therefore, the trial court did not err in denying Clark’s motion to suppress, and Clark’s numerous contentions are without merit.

Decided March 8, 1994

Reconsideration denied March 17, 1994

Peevy & Lancaster, Donn M. Peevy, for appellant.

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

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Cooper, Judge. Beasley, Presiding Judge,

license: Public Domain

text:
    A93A1718.
    PACE v. THE STATE.
    (442 SE2d 307)
   Cooper, Judge.

Appellant was found guilty by a jury of felony obstruction of a correctional officer and appeals his conviction and sentence.

The charge against appellant, a prison inmate, arose from an altercation between appellant and a correctional officer in which appellant threw a container of cleaning fluid in the officer’s face. At trial, appellant contended he threw a cup of milk mixed with water at the officer because the officer was harassing him. The trial court required appellant to wear leg irons and a handcuff throughout the trial over defense counsel’s objection.

1. Appellant contends the trial court’s ordering him to appear before the jury in leg irons denied him a fair and impartial trial. As this court noted in Mapp v. State, 197 Ga. App. 7 (397 SE2d 476) (1990): “It is well established that the accused, while in the presence of the jury, should be free of indicia of guilt such as wearing shackles or prison garb, or being surrounded by uniformed security personnel, or anything else that might infringe upon the presumption that he is innocent. ... A defendant being tried for a criminal offense on a plea of not guilty was entitled at common law, to make his appearance free from all shackles or bonds. This is also the present rule, and the right is recognized as an important component of a fair and impartial trial.” (Citations and punctuation omitted.) Mapp, supra at 7. “At trial, where there is good and sufficient cause, the court has discretion in requiring a defendant to be handcuffed or shackled for security reasons. Abuse of discretion is the test on appeal where restraining devices have been used in the trial court.” (Citations omitted.) Dennis v. State, 170 Ga. App. 630 (3) (317 SE2d 874) (1984). “While the use of restraining devices does not always amount to error of constitutional dimensions, . . . the cases holding no error was presented by the use of such devices have always relied on detailed, demonstrable evidence set forth in the record to support the infringement by the court on the defendant’s presumption of innocence.” Martinez v. State, 189 Ga. App. 69, 72 (2) (375 SE2d 123) (1988).

In this case, prior to selection of the jury, defense counsel objected to appellant being required to appear before the jury in “leg irons and cuffs.” The trial court heard from a prison administrative assistant who stated that appellant was considered “assaultive” and had a prior escape conviction. The prosecutor informed the court that appellant had been convicted of assault on a police officer and obstruction of a correctional officer. Defense counsel noted that appellant had not escaped from recent assignments to road crews.

There is no evidence, however, that appellant “threatened or struggled with any of the guards, court officials, or jurors.” Mapp, supra at 8; see also Martinez, supra at 72. “Likewise, there is nothing in the record to reveal that at any stage of the trial appellant became disruptive so as to require the use of shackles. The denial of appellant’s request to remove the shackles was based upon appellant’s previous conviction [s], . . . and the opinion of him held by law enforcement authorities, not upon any specific actions of appellant justifying restraint.” Mapp, supra at 8. Furthermore, there was no evidence that appellant attempted to escape from the trial. While there was evidence appellant had escaped in 1986, there was also evidence that he had since been given outside work details from which he had not escaped.

Because the record does not reveal any specific actions of appellant justifying the use of restraints, “we determine that the shackling of appellant, which continued throughout the trial, injected partiality into the trial, infringed upon appellant’s presumption of innocence and prevented the fundamental fairness which attends a trial by jury.” Mapp, supra at 8; see also Hicks v. State, 200 Ga. App. 602 (409 SE2d 82) (1991) (physical precedent only). Accordingly, we find the trial court abused its discretion in requiring appellant to wear leg irons throughout the trial and we remand this case for a new trial.

We further note that the trial court did not instruct the jury that the use of restraints should not be considered in assessing guilt or innocence. Defense counsel did not request such an instruction be given to the jury, and the Supreme Court has recently held that it is not reversible error to fail to give such an instruction if the defendant does not so request. See Kitchen v. State, 263 Ga. 629 (1) (436 SE2d 645) (1993). However, as Justice Sears-Collins noted in her concurring opinion in Kitchen, the standards set forth by the American Bar Association provide that the trial judge should so instruct the jurors and, like Justice Sears-Collins, we urge compliance with those standards. See id. (Sears-Collins, J., concurring).

2. In light of our holding in Division 1, we need not address appellant’s remaining enumerations of error.

Judgment reversed.

Smith, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur in Division 2 and with the conclusion in Division 1 that defendant was unconstitutionally restrained. It was not shown that, in order for security to be maintained, defendant had to be restrained at trial with leg irons and a handcuff on the hand he would not need for writing. There is nothing in the record to show that these measures were minimized in any way in front of the jury, such as keeping defendant seated with the leg irons out of view in the jury’s presence. Nor is it shown that a handcuff was necessary. There is nothing in the record indicating that the presence of guards would not be sufficient to assure order and security, which of course the court has the power to preserve and enforce. OCGA § 15-1-3 (1).

Although defendant had a long record, including aggravated assault and battery on officers (one lost two fingers in 1986 and one was stabbed in 1985), had struck an officer with his fist in 1989, had set fire to his prison bed in 1986, damaged his jail cell that same month, and had once escaped from jail in 1985 or 1986, some six years previously, the partiality created by his appearance in leg irons and handcuffs in this case outweighed the perceived need which the record does not substantiate insofar as his potential behavior at trial is concerned. There was no recent or immediate behavior by defendant which created the “good and sufficient cause” found present in, e.g., Dennis v. State, 170 Ga. App. 630, 632 (3) (317 SE2d 874) (1984), and none of his violence had occurred in court. Neither had the escape been from court. Nor does the record show that order and security could not have been assured by some other less restrictive means which would have protected the presumption of innocence. The leg irons and handcuffs were silent but strong inference-producing evidence against it.

The circumstances here, at least as developed in the record, do not constitute the good and sufficient cause which in this writer’s opinion were present in Reid v. State, 210 Ga. App. 783, 788 (437 SE2d 646) (1993) (Beasley, P. J., concurring specially).

Decided March 17, 1994.

Cowart & McCullough, Hugh J. McCullough, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, for appellee.


author: Andrews, Judge.

text:
    A93A1976.
    HEARST v. THE STATE.
    (441 SE2d 914)
   Andrews, Judge.

Hearst appeals from the denial of his motion for new trial after his conviction of three counts each of armed robbery and burglary, two counts of aggravated assault, and one count each of aggravated sodomy and rape.

1. Viewed in favor of the verdict, the evidence showed three incidents involving young women in their apartments.

On March 23, 1991, D. M. was staying with a friend at Post Bridge Apartments on Terrell Mill Road. The apartment was on the ground floor. She was asleep on the living room couch around 4:00 a.m. when she heard a noise in the bedroom. Thinking her friend was home, she looked into the bedroom and saw a figure climbing in the window. There was a lamp on in the bedroom. The man had on a baseball cap and, when he saw her, he ducked his head and pulled the cap down over his face. He was carrying a gun and pointed it at her. He grabbed her, made her turn the lamp off and told her to give him all her money. He also made her go through a jewelry box in the bedroom and would not touch anything in the apartment. She gave him the one dollar she had. The hat he was wearing had “Miami University” on it. She advised him her friend would be there soon and he told her he was going to perform an act of sodomy on her and then he would leave. She refused to perform another act requested by him and he got up, put on a condom, and raped her. He then forced her into the kitchen and made her get out a bottle of vodka. She managed to grab a blanket off of the couch and ran out the door of the apartment.

D. M. described the assailant to police as tall, in his early twenties, with a thin moustache and wearing the Miami hat. She identified Hearst from a photographic array before trial and also in person at trial.

On March 30, 1991, J. Y. and her sister M. K. were living at the Laurel Valley Apartments on Terrell Mill Road. J. Y. had just arrived home from work after midnight. A man came in through the sliding glass door, which J. Y. was facing. M. K. was standing with her back to the door and the man grabbed M. K. around the neck and stuck a gun in her stomach. He was wearing a baseball cap which he pulled down to hide his features. He then said “Where’s the money? I need money.” J. Y. gave him $1,800 in cash. She told him her uncle was coming over. He made her unplug the telephone and locked the two women in the bedroom.

J. Y. identified Hearst from a photo spread before trial. She also identified him at trial.

On June 19, 1991, C. B. had returned home to her Windcliff Apartment on Terrell Mill Road after getting off work at 11:00 p.m. She had checked in with a friend about 11:35 p.m. and was on her bedroom phone talking to another friend when she noticed someone coming around the corner with a baseball hat on and a knife in his hand. The man told her to get off the phone and asked her if she had any money around anywhere. There was a lamp on in the room and she saw his face. He knocked over the lamp and was dragging her to the living room where her purse was located. During the struggle, he cut her on the hand.

As he was dragging her to the living room, she managed to jerk free and ran back into the bedroom and locked herself in. She called the police. She described the assailant as wearing a dark shirt with writing on the front, a blue hat pulled low over his eyes, and jeans. She also described a thin moustache.

Officer Northern was in the area on another call and saw a man fitting the description fleeing from the apartments. He chased him on foot but lost him. Officer Yancey and the canine unit were called to track the man and a perimeter of officers was set up around the apartments. The dog picked up the scent where the man was last seen and tracked it toward Terrell Mill Road. As Officer Yancey and the dog proceeded down Terrell Mill Road, Hearst emerged from a wooded area onto the road. The dog was heading for him. Hearst was wearing a blue tee-shirt, blue athletic shorts, and he had a thin moustache. He was sweating and had mud on his shoes and elbows.

Hearst told the officers he had been drinking with friends at the Laurel Valley Apartments pool. He was placed in a patrol car and taken to C. B.’s apartment. As he was sitting in the back seat, he told the officers he wanted her to see him so she could tell them he was not the guy. He leaned up near the window. C. B. identified him as the assailant. Officers conducting the investigation discovered pry marks on the sliding glass door of C. B.’s ground floor apartment. The grass was damp with dew and officers found one set of footprints coming from a knoll nearby onto the terrace and another set leaving it.

Although the dog continued to search the area, no hat or blue jeans were discovered in the area. A green Miami University baseball cap and two green tee-shirts were recovered from Hearst’s apartment.

There was evidence sufficient to convince any rational trier of fact of the existence of the essential elements of the crimes charged. Jackson v. Virginia, 443 U. S. 307, 310 (99 SC 2781, 61 LE2d 560) (1979); Baldwin v. State, 153 Ga. App. 35, 37 (264 SE2d 528) (1980).

2. The first four enumerations deal with alleged ineffective assistance of counsel and will be addressed together.

(a) Appellate counsel was not trial counsel, but was appointed by the court before the hearing on the motion for new trial. The motion was amended to address claims of ineffective assistance and these were fully addressed at that hearing.

Here, the notice of appeal was filed one day before the filing of the court’s order denying the motion for new trial. Such a premature notice of appeal ripens upon the filing of the order and there is no jurisdictional impediment to our review. Hope v. State, 193 Ga. App. 202, 203 (1a) (387 SE2d 414) (1989).

(b) The allegations of ineffective assistance are that trial counsel failed to file a motion to suppress, did not subpoena witnesses for Hearst, allowed Hearst’s character to be put into evidence without objection, and did not object to the “expert testimony” of the officer working the police dog.

“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). 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.’ ” Carter v. State, 176 Ga. App. 632, 633 (337 SE2d 413) (1985), quoting from Strickland v. Washington, 466 U. S. 668, 669 (104 SC 2052, 80 LE2d 674) (1984). See United States v. Cronic, 466 U. S. 648 (104 SC 2039, 80 LE2d 657) (1984).

“In order to prevail defendant must meet two tests: 1) he must show that trial counsel’s performance was deficient in that he made errors so serious that he was not functioning as the ‘counsel’ guaranteed defendant by the Sixth Amendment; 2) defendant must show that the defense was prejudiced by the deficient performance so that defendant was deprived of a fair trial, one whose results were reliable. [Cit.]” Hosch v. State, 185 Ga. App. 71, 72 (2) (363 SE2d 258) (1987).

(1) The only items subject to suppression as a result of the search of Hearst’s and his common-law wife’s apartment were a green Miami University baseball hat and two green shirts. A search warrant had been obtained. While trial counsel, in the heat of trial, initially said he was surprised by the fact that there had been a search, he later recalled that the wife had told him about the search the previous weekend. In any event, a motion to suppress “items found during the search” was filed during the trial, but counsel opted not to pursue it.

As trial counsel testified at the motion for new trial hearing, the hat found was a different color from that described by the witnesses and his examination of the witnesses fully explored this.

Also, Hearst testified at the trial and numerous witnesses were presented to support his alibi defense. He contended he was elsewhere during the first two incidents. As to the incident when he was apprehended, Hearst acknowledged that he was in the Laurel Valley Apartment complex that evening. He was with two other men, one he knew as “John-John” (JJ) and the other a friend of JJ. He had gone to high school with JJ and had run into him earlier that day, although he could not remember his last name. They had played basketball and “hung out” before coming to the apartment complex after 11:00 p.m. and meeting the third man. They had drunk beer and smoked marijuana and continued to do so by the swimming pool. JJ offered to “lace up” a marijuana joint with cocaine, which made Hearst nervous because he did not do cocaine.

They saw numerous police vehicles in the area and one drove by and saw them but did not stop. JJ and the other man went to buy more beer, but Hearst refused to go because of the cocaine. He remained by the pool, but became more nervous because of his possession of the joints which he threw away. Because he had left his regular cigarettes in JJ’s car, he started walking toward a local store to buy some more. That is when he encountered the officers and the dog and was taken to see C. B.

Therefore, the decision to forego the motion to suppress in these circumstances did not amount to ineffective assistance.

(2) Trial counsel’s failure to have three police officers under subpoena to testify is claimed to show counsel was constitutionally ineffective. The officers had been on the State’s witness list, but had been released by the State at the close of its case. Defense counsel did attempt to serve subpoenas on the officers, but was unable to locate them during the trial.

Even assuming this shows a “deficiency,” however, Hearst has been unable to show that their absence so prejudiced him that he was deprived of a fair trial. The only intended purpose for their testimony, according to trial counsel, was to show some minor discrepancies in the location of the police dog and Hearst when he was located. Further, they would state he cooperated and did not attempt to flee. This same testimony was presented by other officers also present at the scene. There was no harm. Smith v. State, 207 Ga. App. 290, 292 (428 SE2d 95) (1993).

(3) Officer Harris was called as a witness during Hearst’s case to show that he cooperated with the police. While cross-examining the officer, the prosecutor asked “after the defendant made the statement that he was drinking and smoking marijuana over at the . . .” At this point, there was no evidence before the jury of marijuana use, although the hearing required by Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), had been conducted. Trial counsel objected, the court sustained the objection, instructed the jury to disregard that question and admonished the prosecutor before the jury. The motion for mistrial made and preserved by trial counsel on the ground the state had improperly introduced Hearst’s character was denied.

Considering the corrective action taken by the court, there was no error in denying the motion for mistrial, as alleged in the fifth enumeration. Ward v. State, 252 Ga. 85 (311 SE2d 449) (1984).

(4) The next allegation of ineffectiveness also relates to Hearst’s statement to the police and at trial that he and JJ were drinking beer and smoking marijuana.

It is contended here that, after Hearst’s statement to the police was found voluntary and properly presented to the jury, trial counsel should have again objected that the statement placed his client’s character in issue. As stated in Jones v. State, 257 Ga. 753, 759 (a, b) (363 SE2d 529) (1988), the mere admission that one has used marijuana or drunk alcohol does not place one’s character in issue. See O’Neal v. Kammin, 263 Ga. 218, 219 (430 SE2d 586) (1993).

Further, statements made by an accused at the time of arrest are admissible as part of the res gestae. Bixby v. State, 234 Ga. 812, 813 (1) (218 SE2d 609) (1975); Turner v. State, 178 Ga. App. 274 (3) (342 SE2d 759) (1986).

That appellate counsel may, in hindsight, disagree with the tactics and strategy of trial counsel does not equate with a showing of ineffectiveness, Hosch, supra, and new counsel has failed to show ineffectiveness. Smith, supra.

(5) Since Officer Yancey was never tendered to the court as an expert and was not so designated by the court, the fourth enumeration of error is without merit.

3. Finally, it is urged that the trial court’s denial of another motion for mistrial made during cross-examination of Hearst was reversible error.

The State had asked Hearst the whereabouts of John-John and Hearst had indicated he might be in California. Later, during cross-examination, the State asked “Q. Isn’t it true, Mr. Hearst, that the reason John-John isn’t here is because he knows that you committed an armed robbery and he’s not willing to come in here and perjure himself?” Trial counsel immediately made and later preserved his motion for mistrial on the ground that this question implied to the jury that the defense had some obligation or burden of proof in the case.

Decided March 17, 1994.

Howard & Delaney, Stephen A. Delaney, for appellant.

Thomas J. Charron, District Attorney, Don T. Phillips, Nancy I. Jordan, Debra H. Bernes, Assistant District Attorneys, for appellee.

Again, the court denied the mistrial, but agreed with trial counsel and immediately instructed the jury that the State always bore the burden of proof and there was no burden upon an accused.

On cross-examination, the prosecutor is entitled to ask defendant why a witness has not been called. Worth v. State, 183 Ga. App. 68, 72 (5) (358 SE2d 251) (1987). Therefore, this enumeration presents no ground for reversal.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.


author: Cooper, Judge.

text:
    A93A2274.
    MOORE v. THE STATE.
    (442 SE2d 311)
   Cooper, Judge.

Appellant was convicted of rape, kidnapping and three counts of aggravated sodomy. He appeals from the entry of judgment of conviction and sentence.

1. Count 5 of the indictment charged that appellant committed the offense of aggravated sodomy (OCGA § 16-6-2) by unlawfully performing “a sexual act involving his anus and the mouth of [the victim].” Appellant enumerates as error the .trial court’s charge to the jury on Count 5 of the indictment and the entry of judgment on the conviction and sentence on said count. Appellant contends that the act described in Count 5 of the indictment does not meet the statutory definition of sodomy. There was no objection to the indictment or conviction at trial, and appellant also contends that trial counsel’s failure to make the appropriate objections as to Count 5 constituted ineffective assistance of counsel.

Sodomy requires contact between “the sex organs of one person and the mouth or anus of another.” OCGA § 16-6-2. On appeal, the State concedes that Count 5 as drawn in the indictment does not constitute the crime of aggravated sodomy and cannot stand. Therefore, appellant’s conviction on this count must be reversed and the sentence vacated. Inasmuch as we have determined that a reversal of Count 5 is necessary, appellant’s claim of ineffective assistance of counsel for failure to object to Count 5 is moot.

Decided March 17, 1994.

Stephen H. Harris, for appellant.

Spencer Lawton, Jr., District Attorney, John T. Garcia, Assistant District Attorney, for appellee.

2. Appellant also enumerates as error the inclusion of the language “reasonable and moral certainty” in the court’s charge on reasonable doubt, relying on Vance v. State, 262 Ga. 236 (2) (416 SE2d 516) (1992). However, appellant’s reliance on Vance is misplaced. While the court criticized the use of the phrase “moral and reasonable certainty,” finding it unnecessary, the court stressed that the charge does not create reversible error. Id. at 238, fn. 5. Like the charge in Vance, the charge given in the instant case substantially mirrors the Suggested Pattern Jury Instructions (July 1991) and “as a whole repeatedly and accurately conveyed to the jury the concept of reasonable doubt. . . . [T]he use of the words ‘moral and reasonable certainty’ created no reversible error when ‘considered in the context of the charge as a whole.’ [Cit.]” Id. at 237-238. Thus, appellant’s contention is without merit.

Judgment affirmed in part, reversed in part.

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


author: Smith, Judge.

text:
    A93A2371.
    In the Interest of J. N. T., a child.
    (441 SE2d 918)
   Smith, Judge.

This is a discretionary appeal from an order of the juvenile court. The order placed temporary legal and physical custody of a deprived child jointly with appellant Georgia Department of Human Resources (“DHR”) and unrelated third parties, and it directed physical placement with the third parties.

The facts underlying this appeal of what the DHR refers to as “only a legal issue” are neither litigated nor properly supported by citation to the record. Nevertheless, the record before us indicates that the mother of the child originally left her with a certain couple as 24-hour-a-day “babysitters.” The couple is not related to the child by blood or marriage. An order adjudicating the child as deprived was entered by the court effective July 17, 1992, and temporary legal custody was awarded to the department. The DHR permitted the child to stay with its “babysitters,” and the couple was asked to undergo certain training classes. The department thereafter determined that it would be in the best interest of the child to remove her from the couple’s home. The couple then took action which culminated in a judicial review of the earlier disposition granting temporary custody to the department. See OCGA §§ 15-11-41; 15-11-42.

The transcripts of the review hearings reveal that the juvenile court did not fault the DHR for removing the child from the couple’s home based on the information available at the time. However, the court determined that returning the child to the couple’s care was in the best long-term interest of the child. The DHR disagreed and added that it could not in good faith return the child to the couple’s care “if we have discretion in the decision.” The department also pointed out that its primary long-term goal as temporary custodian of a deprived child is to return the child to its parents, if possible, and not to anticipate permanent placement of the child outside the parents’ care. The court entered an order modifying its previous temporary order; it awarded joint legal and physical custody to the couple and the DHR (specifically the local Department of Family & Children Services) and directed physical placement of the child with the couple.

The question before us is not whether the juvenile court’s action was in the best long-term interest of the child. The wisdom of the actions that the DHR would likely take if granted sole temporary custody of the child is likewise not before us; neither is the capacity of the couple to care for and ultimately adopt the child. If the issue were merely whether the juvenile court abused its discretion in this case, we would readily hold that it did not do so.

The sole question before us is whether the juvenile court has the lawful authority to award joint legal and physical custody to the DHR and unrelated third parties when the DHR objects to that arrangement. In a typical case, “[t]he juvenile court makes the initial determination of whether the minor child is deprived, and if so, whether custody is given to the [DHR]. Thereafter, [OCGA § 49-5-3 (12) (D)] places authority in the department as to ultimate disposition of the child.” In re R. L. M., 171 Ga. App. 940, 942 (2) (321 SE2d 435) (1984). In such a case, “any portions of a court’s order purporting to control disposition of the child are merely exhortatory and not binding on the department. [Cit.]” In the Interest of A. S., 185 Ga. App. 11, 12 (2) (363 SE2d 325) (1987).

The court’s order in this case clearly attempts to control the DHR’s discretion to place the child as it sees fit by means of a “joint custody” arrangement as opposed to mere exhortatory language. However, OCGA § 15-11-34, which addresses the disposition of a deprived child, does not contemplate a transfer of custody from the child’s parent or parents to a joint custody arrangement between unrelated third parties.

We have previously held that this Code section does not authorize the court to award legal custody to one person or agency and physical custody to another. In re R. R. M. R., 169 Ga. App. 373, 374-375 (1) (312 SE2d 832) (1983). The attempt to award “joint custody” to the DHR and to the child’s former “babysitters” presents a distinction without a difference since such an arrangement is no more authorized by OCGA § 15-11-34 than the outright division of legal and physical custody among different persons or entities. Moreover, “joint physical custody” is in essence divided physical custody — divided to ensure that a child is afforded substantially equal time between estranged parents. OCGA § 19-9-6 (3). That Code section contemplates no other purpose sufficient to authorize the juvenile court to effect a true joint physical custody arrangement. Even assuming it was authorized to do so, the juvenile court clearly did not intend that this child would actually spend time equally with the couple and with persons selected by the DHR. Therefore the DHR was not truly vested with both legal and physical custody of the child in this case, and the juvenile court exceeded its authority here in essentially the same manner as was disapproved in In re R. R. M. R., supra.

Decided March 17, 1994.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Staff Attorney, Maddox, Starnes & Nix, Michael S. Waldrop, for appellant.

Barksdale, Irwin, Talley & Sharp, David B. Irwin, Sandra M. Gentry, Terry N. Massey, David A. Lamalva, for appellee.

The judgment is therefore vacated and the case remanded with direction that a new disposition order be entered consistent with this opinion and in accordance with OCGA § 15-11-34. On remand, should the court elect to place the child with any party outside the discretion of the DHR, such action “shall relieve the department of further responsibility for the child. . . .” OCGA § 15-11-34 (c) (amended subsequent to the effective date of the order under review).

Judgment vacated and remanded with direction.

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


text:
    A93A2543.
    In re SUZANNE CALLAWAY.
    (442 SE2d 309)
   Smith, Judge.

Suzanne Callaway, a non-party witness, appeals from an order of the DeKalb State Court holding her in contempt for failure to produce documents pursuant to a court order.

The order was entered in a civil action in which a default judgment was entered against Callaway’s husband. After taking the husband’s deposition and requesting documents, the plaintiff unsuccessfully sought documents from Callaway. A motion to compel was filed, and the attorney for Callaway’s husband responded on her behalf. The trial court ordered Callaway to produce some, though not all, of the documents requested within ten days of the order. Callaway did not move for reconsideration or seek interlocutory review of the trial court’s order, and she refused to produce the documents. Approximately one month later, plaintiff filed a motion to hold Callaway in contempt. It was served personally upon Callaway with a rule nisi setting the case down for hearing. The trial court, noting that neither Callaway nor her attorney appeared at the hearing, found Callaway “in willful and contumacious contempt of this Court’s order of December 18, 1992.” She was given the opportunity to purge herself of contempt by producing the documents and paying plaintiff’s attorney fees.

Callaway does not dispute that she has failed to comply with the order to produce the documents. She contends only that the trial court erred in entering that order and therefore erred in holding her in contempt. We disagree and affirm.

The relevant portion of OCGA § 9-11-69, dealing with discovery in aid of execution, provides that a judgment creditor may “(1) [e]xamine any person, including the judgment debtor by taking depositions or propounding interrogatories; (2) [c]ompel the production of documents or things ... in the manner provided in this chapter for such discovery measures prior to judgment.” (Emphasis supplied.) The spouse of a judgment debtor is therefore within the scope of the post-judgment discovery process, subject to the limitations created by the Civil Practice Act provisions governing discovery generally. The decisions cited by Callaway are wholly inapposite since they were decided under former Ga. Code Ann. § 38-1201, which provided for discovery only from the opposite party or defendants in fi. fa. We also reject Callaway’s argument that subsection (2) is impliedly limited to documents in the possession of the judgment debtor. This is too narrow a reading of the statute, particularly in light of the expansive scope of subsection (1) and the express limitations stated in subsection (3).

Under the provisions of the Civil Practice Act, the trial court has broad discretion in controlling discovery in a civil action, including post-judgment discovery. Ostroff v. Coyner, 187 Ga. App. 109,117-118 (6) (369 SE2d 298) (1988). The trial court in its discretion balances the right of a party to obtain discovery and the right of individuals to be protected from unduly burdensome or oppressive inquiries. See OCGA § 9-11-26 (c). The trial court has the power to impose sanctions, including citation for contempt, for failure to comply with its orders controlling discovery. Ostroff, supra at 117.

Decided March 17, 1994.

The record in this action reveals .that Callaway’s husband owns or holds an interest in a bewildering number of corporations, partnerships and business entities which involve or involved substantial sums of money. A personal financial statement prepared by Callaway’s husband approximately two years before the deposition showed a net worth of $9,000,000, including portable personal property valued in excess of $400,000. At his deposition, however, Callaway’s husband testified that he had no income, owned no real property except a one-half interest in the marital residence, and owned no personal items of value except a watch, cufflinks, a gold coin, and a wedding ring. While the husband and Callaway had possession of a Porsche, a Mercedes, a Range Rover, and several boats, including one valued at between $950,000 and $1,000,000, all these items were titled in one of the husband’s corporations. The husband did not believe that corporation had “any real books” and did not know whether there was a general ledger.

The husband testified that a friend was supplying the corporation with cash on a somewhat informal basis; he stated that Callaway was making the loan payments on the corporation’s property and supporting herself and her husband on leasing commissions and an inheritance from her mother. It further appears from the record that Callaway has an interest in the corporation which owns the cars and other property, as well as an interest in another of her husband’s corporations and a one-half interest in the marital residence in lieu of salary from yet another of her husband’s corporations. Callaway set up one or more corporations shortly after her husband’s business ventures ran into financial difficulties, but she and her corporation are engaged in the same type of business activity as her husband and operate out of the same location as the husband’s corporation.

There is some evidence in the record to support the conclusion that Callaway’s records are relevant to the subject matter of the husband’s litigation or reasonably calculated to lead to the discovery of admissible evidence. OCGA § 9-11-26 (b) (1). It appears that Callaway has an interest in at least some of the complex and interlocking business entities owned or controlled by her husband, that she is involved in some of their financial transactions, and that she is involved in the same or similar business as her husband, albeit under a different business name. Because there is evidence supporting the trial court’s order we will not disturb it on appeal. Remira, Inc. v. Amory, 210 Ga. App. 48, 51-52 (1) (435 SE2d 236) (1993).

Judgment affirmed.

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

Wagner & Johnston, Benjamin H. Pruett, R. Jeffrey Morrison, for appellant.

Mark A. Baker, for appellee.


author: Smith, Judge. Beasley, Presiding Judge,

text:
    A93A2126.
    SMITH v. HOUSING AUTHORITY OF THE CITY OF ATHENS.
    (441 SE2d 847)
   Smith, Judge.

On April 7, 1991, several concrete blocks fell from a privacy screen wall beside the porch of an apartment unit owned by the Athens Housing Authority. Smith, the sister and guest of the apartment’s tenant, brought this action as next friend of her six-year-old son, who was struck and injured by the blocks. The Authority’s motion for summary judgment was granted by the trial court, and Smith appeals.

Because Smith and her child were guests of a tenant, they occupied the status of invitees on the premises, and OCGA § 51-3-1 provides the applicable standard of care. Winchester v. Sun Valley-Atlanta Assoc., 206 Ga. App. 140, 141 (2) (424 SE2d 85) (1992). A defendant may prevail in a motion for summary judgment by showing that there is no evidence sufficient to create a jury issue on at least one element of the plaintiffs case, regardless of disputes of fact which may exist as to other elements. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Smith’s theory of liability is composed of three elements: first, that the Authority maintained a dangerous condition on its premises; second, that Smith was injured by this condition; and third, that the Authority possessed superior knowledge of the dangerous condition. Wittenberg v. 450 Capitol Assoc., 207 Ga. App. 260, 262-263 (427 SE2d 547) (1993).

The Authority’s director of maintenance testified by affidavit that the wall was inspected shortly after the incident, that the mortar joint itself was intact and of good quality, and that the blocks appeared to have been pulled loose by force. Smith’s sister, the tenant, agreed that Authority employees examined the wall two or three days after the occurrence. In contrast, the architect who executed an affidavit on behalf of Smith did not inspect the premises until October 31, 1992, about one-and-one-half years after the incident. His affidavit states that he inspected the walls at the site of the incident and at several neighboring buildings. He concluded that a design defect was apparent in the walls at the time of his observations, because runoff from the roof comes in contact with mortar joints and “causes a steady deterioration of those joints, and eventual collapse of the concrete masonry units.” He further testified that “[t]here is a clear discoloration at the point where rain falls from the roof on to the wall. This is the point where the structural collapse occurred at each building.” However, Smith’s architect did not state that the defect in design was such that patent deterioration would necessarily have been visible by the time of the incident in issue here. He could only state that the deterioration had become apparent by the time of his visit, one-and-one-half years later.

While the trial court granted summary judgment on the issue of “proximate cause,” a summary judgment right for any reason will be affirmed. Newsome v. Dept. of Human Resources, 199 Ga. App. 419, 423 (3) (405 SE2d 61) (1991). The evidence on the record does not create a jury issue on at least one essential element of Smith’s cause of action: superior knowledge of a defective condition on the part of the Authority. “The true ground of liability is the landowner’s superior knowledge of the perilous condition and the danger therefrom to persons coming upon the property. It is when the perilous condition is known to the owner and not known to the person injured that a recovery is permitted.” (Citations and punctuation omitted.) Winchester, supra, 206 Ga. App. at 141.

The director of maintenance testified that the Authority had no actual knowledge of any problem with the wall. The Authority inspected the premises on February 1, 1991, about two months before the incident, and noted no problem with the wall. Smith’s sister acknowledged that she never reported any problem with the wall to the Authority. Smith’s architect inspected the premises approximately one-and-one-half years after the incident, and he did not offer any opinion as to when the deterioration resulting from the allegedly defective condition he described would have become apparent. “[Although ordinarily questions of negligence do not lend themselves to summary adjudication, ‘nevertheless the classic rules of negligence still apply in this state. These rules impose liability only where the landlord has actual or constructive superior knowledge. To say otherwise would be to impose absolute liability upon landlords for all defective conditions which could have been repaired before the injury.’ ” (Punctuation omitted.) Harris v. Sloan, 199 Ga. App. 340, 341 (1) (405 SE2d 68) (1991).

Smith alleges there were other incidents involving “falling walls at the apartments,” and she contends the Authority should have known of the hazard. However, both Smith and her sister testified that they knew of no other similar incidents. An affidavit from another tenant stated there were several blocks of a different design in a wall outside her apartment. That tenant was not present at the time the blocks were installed. She did not know whether those blocks were part of the original construction or why they replaced original blocks, if in fact they were installed at some later time. Likewise, Smith testified that she saw other walls from which blocks were missing, but she did not know how, when or why this had occurred. Neither Smith’s testimony nor the other tenant’s affidavit establishes that the absence or replacement of blocks in other walls was due to any hazard or defect or, more particularly, to the defect described by Smith’s architect. For a prior incident to put a landlord on notice of a defect, the facts must be sufficiently similar to those underlying this action. “While the relevancy of other occurrences is ordinarily within the sound discretion of the court, it is necessary that the conditions of the things compared be substantially similar. Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the court’s discretion can operate.” (Citations and punctuation omitted.) Wittenberg v. 450 Capitol Assoc., supra, 207 Ga. App. at 263 (previous incident in which another person walked into and broke glass panel in same doorway not sufficiently similar). There is no evidence to demonstrate whether missing or different blocks in other walls were in that state because of original construction, alteration, vandalism, collision with the wall, or the deterioration described by Smith’s architect. There is no showing of substantial similarity sufficient to put the Authority on notice of an alleged defect common to all walls prior to the incident in question.

Moreover, “ ‘[t]here is no obligation to protect the invitee against dangers or hazards which are known to him or which are so obvious and apparent he may reasonably be expected to discover them.’ [Cit.]” Wittenberg, supra, 207 Ga. App. at 263. While the child himself was not deposed, Smith testified that she visited her sister with her children, “just about every other day” but testified that she never looked at the wall on the day of the incident, although she could “look right at it” from where she was sitting. Both Smith and Smith’s sister testified that they knew neighbors’ children had been climbing up on the wall “all the time” before the incident. Finally, Smith’s sister testified that she saw cracks or gaps in the mortar between the blocks and that the blocks “looked like they was already about to fall” and were leaning off the wall for a period of about three weeks before the incident. Although Smith’s sister reported numerous other problems to the Authority for repair or maintenance, she never reported the loose and leaning blocks to anyone. When the Authority last inspected the unit on February 1, 1991, about two months before the incident, no defects in the wall were noted.

At the time of the incident, Smith and her children had been at the sister’s apartment for as much as “half the day.” The children had been playing “just right beside” the wall, and Smith had been watching them from the sofa, for most of that time.

Given that the Smiths were almost daily visitors in the apartment, that Smith acknowledged the wall was in plain view although she did not look at it, and that the sister’s testimony that the blocks were visibly leaning and “already about to fall” for a period of three weeks was uncontroverted, it is clear that Smith’s sister and her visitors were, or should have been, aware of the danger posed by the loose blocks. “ ‘The owner or occupier of land is under a duty to invitees to discover and either keep the premises safe from or warn of hidden dangers or defects not observable to such invitees in the exercise of ordinary care. (Cits.) However, there is no duty to warn against obvious or patent dangers which may be observed and avoided by the exercise of ordinary care. (Cits.)’ [Cits.]” Winchester, supra, 206 Ga. App. at 142. This is true “ ‘ “[r]egardless of the age or capacity of the injured person.” ’ ” Id. In Winchester the injured child, who was younger than the child here, also did not testify. However, this court held that the undisputed testimony of the child’s mother established the allegedly defective condition as “open, obvious and in plain view.” Id. Here, the allegedly defective condition was observed by Smith’s sister for a period of about three weeks, and was in plain view of Smith, her sister and the children for as much as half the day. Not only was this open and obvious condition in plain view, there has been no evidence presented of any superior knowledge on the part of the landlord. The trial court did not err in granting summary judgment to the Housing Authority.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Cooper, Andrews and Johnson, JJ., concur. Beasley, P. J., and Blackburn, J., dissent.

Beasley, Presiding Judge,

dissenting.

The child “had the status of an invitee to whom the law requires ordinary care to be accorded.” Cooper v. Anderson, 96 Ga. App. 800, 808 (101 SE2d 770) (1957). Thus the analysis of what he knew or should have known is different from that given his mother. However, an examination of her testimony and that of others is necessary because the child has not been deposed. There was evidence that several bricks or blocks from the wall fell on the six-year-old kindergartner and injured him while he was playing outside with other children. His mother could see some of it occurring, as she was sitting inside close to a window and was watching the children from time to time to be sure they did not go in the street. According to her, nothing was touching the wall at the time, the children were not climbing on it, they were just playing next to it, and the bricks just fell. She had not seen any defect in the wall beforehand, but she was not paying attention to it when she walked up the sidewalk to the apartment, nor was there any reason for her to do so. She knew of nothing she could have done to prevent the incident.

The child’s aunt, who had lived in the apartment for about three years, knew the blocks were loose, having noticed this condition about a week before the defendant’s periodic inspection. She did not see the incident occur, and she did not think her sister saw it either. Three bricks fell. She had noticed that the whole wall appeared to be decaying, several weeks before the incident. Other children climbed on the wall, but hers did not. She had seen two of the bricks positioned about to fall, leaning a little, with gaps in the cement. The third one, underneath the other two, also fell. She called the defendant’s maintenance department when there were problems inside the apartment but she did not report the loose bricks because she believes the inspectors are supposed to check outside. She did not think that the bricks would fall on the children, and she had no idea why they fell.

The defendant’s director of maintenance, who oversees the inspection, repair, and maintenance of the units, stated that the last inspection of this unit was on February 1, 1991, which was approximately two months before the bricks fell (on April 7, 1991). He stated that no defect was noted and that defendant was not aware of defects in the wall, but he did not state that he personally inspected and knew that no defect was present. Nor did he state that the wall was even inspected. As to the inspection after the incident, he did not state that he conducted it and that what was found was within his personal knowledge. Chandler v. Gately, 119 Ga. App. 513 (1a) (167 SE2d 697) (1969).

Defendant has not shown that it did not know of the loose condition of the bricks or would not have seen it had it looked at the wall when it conducted its inspection of the premises. “Where the owner of the [premises] is shown to have made inspection of the [premises] for the purpose of discovering defects therein, [it] is chargeable with notice of any defects which should have been discovered by the exercise of ordinary care and diligence.” Home Owners Loan Corp. v. Brazzeal, 62 Ga. App. 683, 684, 692 (6) (9 SE2d 773) (1940). Nor is there any evidence that the child saw or should have seen the loose bricks on top of the wall. The evidence does not eliminate superior knowledge, either actual or constructive, on the part of the landlord at this stage of the development of the case. See Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 167 (2) (424 SE2d 845) (1992).

The facts in Winchester v. Sun Valley-Atlanta Assoc., 206 Ga. App. 140 (424 SE2d 85) (1992), differ significantly. There the five-year-old child fell over a static brick retaining wall, which ran the entire length of one end of an open field. The wall, which was not defective, varied in height from one inch to one-and-one-half feet above the ground, and the child fell when running to retrieve a ball. The wall was open, obvious, and in plain view of the injured invitee, the child. Here the perilous condition was loose bricks or blocks on a concrete masonry screen wall, the height of which defendant has not shown. It was high enough for the neighbor’s little boys to climb on to get on top of the house. The bricks, not the child, made the movement which caused the injury. There is no evidence thus far that the child knew or should have known of the hazard in the exercise of ordinary care. Defendant as movant has not established that the defect was observable to the child playing in the yard or that the child failed to exercise ordinary care in connection with it. See Ga. Farmers’ Market Auth. v. Dabbs, 150 Ga. App. 15, 16 (2) (256 SE2d 613) (1979), cited in Winchester, supra at 142.

Decided February 14, 1994

Reconsideration denied March 18, 1994.

Sherry J. Locklin, for appellant.

Fortson, Bentley & Griffin, Robert N. Elkins, for appellee.

Nor does it eliminate the element of proximate cause, the basis for the trial court’s ruling. Assuming, for the sake of considering this element, that the landlord breached its duty of repair by not stabilizing or removing the loose bricks, it has not shown that this failure to act was not the proximate cause of their falling when being jarred by some normal, foreseeable means, such as someone bumping the wall or a heavy vehicle rumbling past on the street.

The grant of summary judgment was not warranted and should be reversed. Pace v. M. E. Hunter & Assoc., 195 Ga. App. 23, 25 (3) (392 SE2d 545) (1990). Compare Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

I am authorized to state that Judge Blackburn joins in this dissent.


text:
    A93A1953.
    LEOTA PROPERTIES, LTD. v. BANK ONE LEXINGTON, N.A.
    (441 SE2d 920)
   Cooper, Judge.

This is an appeal from an order confirming the sale of real property. Acting under a power of sale provision, appellee foreclosed on property secured by certain deeds to secure debt given by appellant to appellee which totaled approximately $1,900,000. Appellee was the sole bidder at the foreclosure sale and purchased the property for $635,000. Thereafter, appellee petitioned the court for confirmation of the sale. The parties stipulated that the foreclosure sale and all other matters related to the foreclosure were technically correct, leaving for resolution by the trial court whether or not the price bid by appellee was equivalent to the fair market value of the property. In support of its valuation, appellee submitted evidence which assessed the value of the land at $490,000 and a two-story building thereon at $145,000. Relying on a recent county tax appraisal which assessed the value of the property at $2,004,350 and a recent $1,500,000 listing of the property by a realty company, appellant contended that the fair market value of the property greatly exceeded $635,000. Appellant intended to also rely on the testimony and appraisal report of Robert Crabtree, an appraiser from Kentucky. Appellee moved to exclude both the testimony and report on the theory that Crabtree could not testify as an expert as to the value of the property because he was not licensed in Georgia and therefore his appraisal was illegal. The trial court agreed and only permitted Crabtree to testify as a lay person, precluding any testimony by Crabtree as to the value of the property. Upon a finding that appellee’s valuation was unrebutted, the court confirmed the sale. In its order, the trial court explained that the evidence was excluded based on OCGA § 43-39A-24 which prohibits “anyone [from engaging] in real estate appraisal activity in this state without first obtaining an appraiser classification as provided in this chapter.” Appellant enumerates as error the trial court's exclusion of the appraisal report and the testimony of Robert Crabtree. He argues that such evidence should have been allowed under OCGA § 43-39A-24 (b) (5). We agree.

OCGA § 43-39A-24 (a) provides, in relevant part, that “it shall be unlawful for anyone to engage in real estate appraisal activity in this state without first obtaining an appraiser classification as provided in this chapter.” Subsection (b) enumerates exceptions, including, “any person who testifies to the value of real estate or real property in the courts of this state.” OCGA § 43-39A-24 (b) (5). Subsection (c) states that “[t]he exceptions provided by subsection (b) of this Code section shall not apply to any person who holds an appraiser classification.” Appellee argues that Crabtree’s testimony as to the value of real property is excluded by subsection (c) because Crabtree holds an appraiser classification, albeit from Kentucky.

“It is, of course, fundamental that the cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose. Although the legislative intent prevails over the literal import of words, where a constitutional provision or statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. In other words the language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent. Where the language of a statute consists of common, ordinary words, and there is nothing to show that any unusual meaning is to be attached thereto, the court cannot deny the language its ordinary, usual signification; nor is the court required to give the language a forced and strained interpretation.” (Citations and punctuation omitted.) U. S. Fire Ins. Co. v. Hilde, 172 Ga. App. 161, 162 (1) (322 SE2d 285) (1984).

Viewed in context, the words “an appraiser classification as provided in this chapter” from OCGA § 43-39A-24 (a) define and limit the reference to “an appraiser classification” in subsection (c). (Emphasis supplied.) OCGA § 43-39A-2 defines various terms used in this chapter of the Code, and it supports this conclusion. Subsection (6) of that Code section defines “Appraiser classification” as “any category of appraiser which the board creates . . .” and subsection (7) defines “Board” to mean “the Georgia Real Estate Appraisers Board. . . .” The words “any person who holds an appraiser classification” in OCGA § 43-39A-24 (c) therefore necessarily refer only to a person who holds such a classification issued, by the Georgia Real Estate Appraisers Board. In other words, the exceptions provided by subsection (b) do not apply to any person holding an appraiser classification obtained in Georgia, but they do apply to persons holding appraiser classifications from other states, just as they apply to persons who do not hold an appraiser classification from any jurisdiction.

Appellee’s analysis would require any individual holding an appraiser classification from another state to obtain a Georgia appraiser classification before engaging in any of the activities described in the seven numbered exceptions in subsection (b). For example, subsection (b) (4) grants an exception for corporate officers and other business owners in expressing “an opinion of value on real estate or real property leased or to be acquired by such owner.” Under appellee’s construction of the statute, anyone who otherwise would qualify for this exception would be ineligible if he or she held an appraiser classification under the laws of another state.

This Code section was amended to add subsection (c) in 1992. Obviously, there was a purpose for that amendment. If that purpose had been to make the exceptions of subsection (b) inapplicable to individuals holding appraiser classifications or like credentials from other states, it would have explicitly said so. Instead, the amendment uses language contained in the definitional section of this chapter of the Code. We must give effect to that language.

This chapter of the Code contains provisions relating, among other things, to such matters as fees for appraiser examinations, issuance of appraiser classifications, discipline of appraisers, hearings, and penalties for violations. It appears that the true purpose of subsection (c) was to make it clear that someone holding a Georgia appraiser classification is not exempt from the full panoply of regulatory provisions contained in this chapter simply because that person performs duties that otherwise would come within the exceptions described in subsection (b).

Moreover, individuals who testify as to the value of real estate under OCGA § 43-39A-24 (b) (5) without a Georgia appraisal classification do not violate OCGA §§ 43-39A-25 and 43-39A-26. Appellee argues that Crabtree was retained to come to Georgia, first, to perform a real estate appraisal and second, to testify in court and that his performance of an appraisal in this state without first obtaining a Georgia appraiser classification constituted real estate appraisal activity prohibited by OCGA §§ 43-39A-25 (a) and 43-39A-26. However, anyone testifying as to the value of property under OCGA § 43-39A-24 (b) (5) would be expected to engage in “real estate appraisal activity,” as broadly defined in OCGA § 43-39A-2 (15), in the formulation of a reasoned opinion as to the value of property. “[A] statute shall be construed so as to give full force and effect to all of its provisions and so as to reconcile any apparent conflicts. [Cits.]” Head v. H. J. Russell Constr. Co., 152 Ga. App. 864, 865 (264 SE2d 313) (1980). The legislature could not have intended to subject those who are permitted to testify as to the value of real estate under subsection (b) (5) to criminal penalties (OCGA § 43-39A-26) based on their performance of a pre-trial valuation of real estate in preparation for their testimony. Nor would one expect that a person could testify as to the value of real estate without first engaging in some preliminary process of valuation. Furthermore, there is no evidence that Crabtree was retained to come to Georgia, first, to perform a real estate appraisal for a fee and second, to testify in court. The evidence shows, and appellee would concede, that Crabtree performed this single analysis after the initiation of the confirmation process solely to support appellant’s position that the value of the property exceeded the foreclosure sale price, and the appraisal was not performed as a guise to enable Crab-tree to otherwise operate as an appraiser in this state and avoid the certification requirements of the Act, as argued by appellee.

Based on the foregoing, we conclude that under OCGA § 43-39A-24 (b) (5), Crabtree’s testimony as to the value of the property was admissible in the confirmation hearing; thus, the trial court erred in excluding the testimony and the appraisal report.

Judgment reversed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Andrews, Johnson, Blackburn and Smith, JJ., concur. Beasley, P. J., dissents.

Beasley, Presiding Judge,

dissenting.

I respectfully dissent. Plaintiff is asking the courts to judicially recognize, as a matter of law, the competency of out-of-state real estate appraisers as experts. The appraiser in this particular instance, an MAI appraiser licensed in Kentucky, is not licensed in Georgia by the Georgia Real Estate Appraisers Board as required by OCGA § 43-39A-9 for nonresidents. Yet he has conducted a professional appraisal in Georgia, OCGA § 43-39A-2 (2) and (15), for which it may be assumed he was paid, and is offered by his client as an expert witness on the subject. The purpose is to give an appraisal report, OCGA § 43-39A-2 (3), so as to prove the property’s market value. In these matters, he is clearly acting as a real estate appraiser. The nonresident licensing section does not exempt him from compliance with its requirements because he is merely offered as an expert witness.

Persons who testify to the value of real estate in Georgia courts, except those who hold appraiser classification, need not first obtain an appraiser classification. OCGA § 43-39A-24 (b) (5). This exception dovetails with OCGA § 24-9-66, which conditions such opinion testimony of non-experts on the “opportunity for forming a correct opinion.” The evidentiary rule applies to real estate evaluation. DeKalb County v. Queen, 135 Ga. App. 307, 308 (1) (217 SE2d 624) (1975); Dept. of Transp. v. Brown, 155 Ga. App. 622, 623 (2) (271 SE2d 876) (1980). “Appraiser classification” means “any category of appraiser which the board creates by designating criteria for qualification for such category and by designating the scope of practice permitted for such category.” OCGA § 43-39A-2 (6).

The expert here does not hold a Georgia appraiser classification, although he holds such a classification in Kentucky. The out-of-state classification is recognized under the law in Georgia as a matter of comity, through the simple expedient of applying for the Georgia classification; being willing to accept service of process in Georgia and abide by Georgia’s rules, regulations, and laws related to real estate activity; proving his own state’s official appraiser classification; agreeing to cooperate with the board in any investigation; and paying a fee. OCGA § 43-39A-9.

He need not meet the rigorous educational requirements of OCGA § 43-39A-8. If he had to do this, such a requirement might be regarded as some indication that the legislature did not intend that a foreign expert witness in a single court proceeding be Georgia-licensed. But Georgia appraiser classification for a foreign appraiser is a simple, non-onerous, speedy process; the applicant “may obtain a[n appraiser classification] at the time of filing an application.” OCGA § 43-39A-9 (c).

There is nothing in OCGA § 43-39A-24 (c) which expressly excludes foreign appraisers or limits it to Georgia appraisers. Subsection (c) states that the exceptions do not apply “to any person who holds an appraiser classification.” In OCGA § 43-39A-9, part of the same chapter governing real estate appraisers, the law recognizes and regulates persons who have “an appraiser classification in another state.”

Such foreign appraiser is thus a person “who holds an appraiser classification.” Plaintiffs cannot both offer the witness as a professional appraiser and at the same time contend that he does not hold an appraiser classification; they must rely on his foreign classification as a base for the establishment of his competency. It is just as inconsistent a construction of the Act as would be the allowance of his expert testimony in a Georgia court but the disallowance of his recovery of his fee for doing so, in a Georgia court. See OCGA § 43-39A-17 regarding civil actions to collect compensation.

Decided March 18, 1994.

Davis, Kirsch & Wolfe, Dock H. Davis, for appellant.

C. Terry Blanton, for appellee.

An out-of-state appraiser, who for valuable consideration engages in real estate appraisal activity, OCGA § 43-39A-2 (5), is excluded from § 43-39A-24 (b) (5) by subsection (c). The trial court was correct.


author: Beasley, Presiding Judge.

text:
    A93A2160.
    NASH et al. v. MILLER.
    (441 SE2d 924)
   Beasley, Presiding Judge.

In September 1986, William and Lee Ann Nash borrowed $28,528.17 from Miller and Barrett, d/b/a Miller-Barrett Construction Company, which amount represented a portion of the sales price of a residence. The Nashes executed a promissory note, requiring the payment of six annual installments of $2,852.82 each, representing accrued interest only, with the first such payment being due September 1987, and a seventh and final payment of all outstanding principal plus remaining accrued interest being due September 1993. To secure the note, Lee Ann Nash also executed a security deed conveying the tract to the lenders. Later in 1986, Barrett conveyed all of his interest in the note to Miller.

The security deed provides that any sale, transfer or conveyance of the secured property without prior written consent of the holder may be considered a default. Without either Miller’s consent or objection, Lee Ann Nash executed a warranty deed conveying the property to Robert Shiver in January 1991. This warranty deed was subject to the outstanding security deed from her to Miller and Barrett, and Shiver assumed the debt evidenced by the promissory note. Shiver failed to make the 1991 note payment.

In November 1991, Shiver executed a warranty deed conveying the property to Miller for $10 and other valuable consideration. This deed stated that the property was being conveyed subject to the outstanding deed to secure debt from Nash to Miller and Barrett; that it was the intent of Shiver and Miller that the interest created in Miller by the warranty deed not be merged with the interest created in Miller and Barrett by the security deed; and that nothing contained in the warranty deed would release the security deed. Miller’s attorney notified the Nashes of the default.

Miller later conveyed the property by warranty deed to the Hursts. The real estate transfer tax was $73.50. See OCGA § 48-6-1. The Hursts in turn executed a security deed to a bank to secure repayment of a note in the principal amount of $53,500.

Shortly thereafter, Miller brought this action against the Nashes for the $28,528.17 unpaid principal balance of their note, accrued interest, and attorney fees.

The Nashes answered, asserting various defenses including payment of the debt. They also filed a motion to implead Shiver as a third-party defendant on the ground that his failure to pay the September 1991 installment to Miller constituted a breach of his agreement to assume the indebtedness of Lee Ann Nash to Miller.

Miller filed a motion for summary judgment, arguing that the Nashes have not been released from their debt obligation, the warranty deed from Shiver expressly states that it is the intention of the parties that Miller’s interests not be merged, and the security deed between Miller and the Nashes remains unsatisfied.

The Nashes responded that whether the security deed has been satisfied is a disputed fact. They argued that a merger occurred by Miller’s acceptance from Shiver of what is and should be construed as a deed in lieu of foreclosure in full settlement of all debts assumed by Shiver.

The trial court granted Miller’s motion for summary judgment in the sum of $39,950.05 consisting of principal, interest, and attorney fees. The Nashes’ motion to bring a third-party complaint was denied as moot.

“[OCGA § 44-6-2] provides: Tf two estates in the same property shall unite in the same person in his individual capacity, the lesser estate shall be merged in the greater.’ However, ‘(t)he controlling consideration is the intention, express or implied, of the person in whom the estates unite, provided the intention is just and fair, and a merger will not be permitted contrary to such intent.’ [Cit.] Further, the doctrine of merger, designed primarily for the one who acquires an interest in the property greater than he possessed in the first instance, ‘will not be held to apply against his will to his disadvantage.’ [Cits.]” Gosnell v. Waldrip, 158 Ga. App. 685, 686 (2) (282 SE2d 168) (1981). Consequently, no merger occurred here.

“Still, however, if the consideration of his purchase of the property, as encumbered by the previous lien securing the outstanding debt, is represented in whole or in part by such debt, the result would be otherwise, since, ‘as a general rule, a party can not hold a lien on his own property’ ([OCGA § 44-6-3]), and since, where the debt secured by the lien represents the consideration of his purchase, there would be no consideration should he be permitted to keep the lien alive for the purpose of making the original promisor pay it. He does not need the protection which would be afforded by the enforcement of the outstanding claim, when the claim has already afforded the consideration of his purchase.” Franklin Mtg. Co. v. McDuffie, 43 Ga. App. 604, 605 (2) (159 SE 599) (1931). Accordingly, Franklin Mtg. held that the defendant (who was the grantor of the security deed and borrower under the note) having alleged that the plaintiff in accepting a deed from a third party to whom the property had been sold did so “in satisfaction of all debts secured by said property,” the plaintiff would not be entitled to receive again the benefit of the amount represented by the outstanding indebtedness by recovering it from the original promisor.

Like Franklin Mtg. but unlike Gosnell, the Nashes allege that the consideration for the warranty deed from Shiver to Miller was the underlying debt and that Miller accepted the warranty deed in satisfaction of all debts secured by the property. The Nashes also allege that Miller obtained full satisfaction of the debt through the proceeds he received in selling the property to the Hursts. Compare Commonwealth Land Title Ins. Co. v. Miller, 195 Ga. App. 830, 831 (395 SE2d 243) (1990); Ashburn Bank v. Reinhardt, 183 Ga. App. 292, 294 (4) (358 SE2d 675) (1987).

Treating these allegations in inverse order, Miller does not deny that through sale of the property to the Hursts he received more than sufficient funds to satisfy the debt. However, statements in the warranty deed affirmatively dispute the allegation that it was accepted by Miller in satisfaction of all debts secured by the property. Miller states that there is no evidence that the debt was all or part of the consideration for his purchase of the property from Shiver.

However, the Nashes clearly alleged in their response to Miller’s motion for summary judgment that the debt was the consideration, i.e., that the deed from Shiver was accepted by Miller as full settlement of all debts assumed by Shiver. Miller has not pierced this allegation. Consequently, he has not carried his burden of establishing the lack of a genuine issue of fact and right to judgment as a matter of law. Caldwell v. Gregory, 120 Ga. App. 536, 538 (171 SE2d 571) (1969); compare Sadler v. Trust Co. Bank, 178 Ga. App. 871, 873 (2) (344 SE2d 694) (1986).

Judgment reversed.

Cooper, J., concurs. Smith, J., concurs in the judgment only.

Decided March 18, 1994.

Dennis P. Helmreich, for appellants.

McDonald, Haggard & Carney, H. Patrick Haggard, for appellee.


text:
    A93A2242.
    EMORY RENT-ALL, INC. v. LISLE ASSOCIATES GENERAL CONTRACTORS, INC.
    (441 SE2d 926)
   Andrews, Judge.

Emory Rent-All appeals the trial court’s grant of a directed verdict to Lisle Associates after a bench trial. Emory Rent-All contended that Lisle Associates had breached an extended warranty agreement. The trial court concluded that there was no consideration for the extension of the warranty and held it to be a mere nudum pactum and void.

1. While the parties below and the court treated the motion as one for a directed verdict, since there was no jury and the court sat as factfinder, the ruling will be treated as an involuntary dismissal under OCGA § 9-11-41 (b), which operates as an adjudication upon the merits. Century 21 Mary Carr &c. v. Jones, 204 Ga. App. 96, 97 (418 SE2d 435) (1992). Therefore, the court’s findings are analogous to those of a jury and the evidence is so viewed by this court.

So viewed, the evidence showed that Lisle Associates and Emory Rent-All entered into a written construction contract providing that Lisle would build a new office building for Emory. The total project cost was $135,730. The contract provided for a down payment and then biweekly payments of 90 percent of the labor and material incorporated in the job. The payment provision contained the following retainage clause: “[b] alance upon acceptance of the completed building or occupancy, whichever comes first.”

The original warranty, part of the contract, provided for a five-year warranty on the roof and a one-year “repair and replace” warranty for the remainder of the building for “defective material and workmanship.”

Also a part of the contract was the blueprint of construction, which provided for a concrete retaining wall reinforced with steel.

During construction and before completion and acceptance of the project, Sanford, president of Emory Rent-All, noticed that this retaining wall was bulging and cracking. Acknowledging problems with the wall, Lisle tore down part of it and “attempted to fix it.” Sanford acknowledged that, “[i]f that wall [as repaired] had been satisfactory,” he would have owed the retainage at the completion of the remainder of the construction. However, after this repair and upon tender of the final request for payment by Lisle of the $18,000 retainage in September 1988, Sanford objected to paying the full amount because of “[s]ome paving problems and wall problems.”

On October 7, 1988, the document extending the five-year warranty coverage to the retaining wall as well as the roof was executed by Lisle and Sanford and a check for $4,634.10 was issued to Lisle. That this check represented the full ten percent retainage for the retaining wall is shown by the fact that, on November 14, 1988, Sanford wrote Lisle a letter reflecting their agreement to deduct $2,975 from the final payment to settle out the defective paving dispute. Sanford stated that “I accepted the extension of the warranty for the money I retained in lieu of being satisfied as to the condition of the wall at that point in time.”

On March 6, 1989, still within the initial one-year warranty period, Sanford notified Lisle by letter that the retaining wall, subject to the extended warranty, had begun to “crack and lean.” In 1992, the wall completely fell, Lisle refused to repair it, Sanford had it repaired, and sued under the extended warranty for the cost of the repair.

2. First, the issue of whether, at the time the extended warranty was entered into, payment of the retainage was even due under the clear terms of the contract, was, at a minimum, in dispute at the conclusion of Emory’s case, even viewing all the evidence in favor of Lisle.

Under the original contract, the retainage was not due until Emory accepted or occupied the building, thereby acknowledging that the building, in the opinion of the owner, complied with the requirements of the contract and the plans and specifications. Acceptance of the work by the owner is, under the terms of the contract, a precondition to the obligation to release the retainage. Olympic Constr. v. Drywall Interiors, 180 Ga. App. 142, 144 (2) (348 SE2d 688) (1986); see Dawson Constr. Co. v. Ga. State Financing &c. Comm., 203 Ga. App. 625, 629 (2) (417 SE2d 190) (1992).

It is not disputed that, even after the initial repairs, Sanford contended that the wall, as repaired, did not live up to the contract requirements. Therefore, by accepting the building in less than “contract status,” Emory provided consideration for the “new” extended warranty in return for paying the contested retainage. Compare Owings v. Ga. R. Bank &c. Co., 188 Ga. App. 265 (372 SE2d 825) (1988).

3. Even assuming there was doubt on this question, “‘[a] compromise of a dispute is binding on the parties . . . The law favors compromises, and a promise made in extinguishment of a doubtful claim is sufficient to support a valid contract. . . .’ [Cits.]” Smith v. Hauerty Furniture Co., 173 Ga. App. 447, 448 (326 SE2d 812) (1985). Compare Topa Ins. Co. v. Aeree, 209 Ga. App. 234, 235 (433 SE2d 312) (1993); Warren v. Jenkins, 190 Ga. App. 442, 443 (1) (379 SE2d 19) (1989); Dover Realty v. Butts County Bd. of Tax Assessors, 202 Ga. App. 787 (2) (415 SE2d 666) (1992).

Decided March 18, 1994.

Zachary & Segraves, William E. Zachary, Jr., for appellant.

Webb, Tanner & Powell, Anthony O. L. Powell, Steven A. Pick-ens, for appellee.

Judgment reversed.

Pope, C. J., and Birdsong, P. J., concur.


author: McMurray, Presiding Judge.

text:
    A94A0096.
    SEAGRAVES v. THE STATE.
    (442 SE2d 312)
   McMurray, Presiding Judge.

Reserving his right to challenge the denial of his motion to suppress evidence on appeal, defendant pleaded guilty to various drug and firearm charges. This appeal followed the imposition of sentence. Held:

1. “The trial judge was authorized to find from the evidence that the roadblock in question was valid and was used primarily to perform routine traffic checks.” State v. Swift, 232 Ga. 535 (1), 536 (207 SE2d 459).

2. The trial court did not err in finding that the officer was authorized to ask defendant to pull to the side of the road for a sobriety check. “Given the enormous danger to the public created by the presence of drunk drivers on the roadways, it follows that the officers were justified in attempting to obtain more information concerning his condition before allowing him to continue on his way. Furthermore, given the fact that the defendant had already been momentarily detained at the roadblock, the brief additional intrusion occasioned by asking him to get out of his vehicle to submit to the field sobriety tests must be considered minimal. [Cits.]” State v. Golden, 171 Ga. App. 27, 31 (318 SE2d 693).

3. “The credibility of the witness is for the trial judge’s determination. [Cits.] His judgment will ‘not be disturbed by a reviewing court if there is any evidence to support it.’ [Cit.] Therefore, where there is a conflict in the evidence on the motion to suppress, the ruling of the trial court will be upheld where there is any evidence to authorize a finding in support of his order. [Cits.]” Brisendine v. State, 130 Ga. App. 249, 250 (1) (203 SE2d 308). The officer’s testimony supported the trial court’s finding that defendant gave the officer consent to search the automobile.

Decided March 21, 1994.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A93A2360.
    RILEY v. THE STATE.
    (442 SE2d 7)
   McMurray, Presiding Judge.

Via indictment, dated September 5, 1990, defendant was charged with child molestation. Thereafter, on September 28, 1990, defendant’s counsel, the public defender, filed a demand for trial pursuant to OCGA § 17-7-170. The demand was one of more than one hundred demands filed by the public defender’s office. Two days later, the Chief Assistant District Attorney called the “demand” cases for trial in open court. The defendant’s case was one of the cases called. It did not appear on the trial calendar; but the public defender was present in court. He objected to the calling of the cases that did not appear on the calendar and asked for time to notify his clients that their cases were being called for trial. The judge ruled that the public defender’s clients were supposed to have been in court when their cases were called for trial inasmuch as they had filed demands pursuant to OCGA § 17-7-170; and that if any of the public defender’s clients were not in court when their case was called, their demand for trial would be stricken and bench warrants would be issued for their arrest. Pursuant to that ruling, the judge entered an order striking defendant’s demand for trial.

On July 8, 1991, defendant was reindicted. That indictment contained two counts of child molestation. Each count pertained to the same victim.

On March 24, 1993, defendant moved to dismiss, asserting that his demand for trial had been stricken improperly and that he had not been tried within two terms of the filing of his demand. Then, on April 20, 1993, defendant moved for “discharge and acquittal” pursuant to OCGA § 17-7-170. The motions were denied and defendant filed a notice of appeal. The judge dismissed the appeal, finding that it was “frivolous and dilatory.” The case proceeded to trial and defendant was found not guilty upon Count 1 and guilty upon Count 2.

The judge sentenced defendant to confinement for a period of ten years, three to serve. This appeal followed. Held:

Decided February 28, 1994

Reconsideration dismissed March 22, 1994.

Cynthia A. Price, Alden W. Snead, J. M. Raffauf, for appellant.

David McDade, District Attorney, Lois W. Gerstenberger, Assistant District Attorney, for appellee.

“The reason given by the trial court for denying [defendant’s] plea was that since the earlier dismissal of the demand for speedy trial was correct, there was no demand extant. . . . The ground on which the demand was dismissed was that [defendant] had not answered ready when the case was called for trial. The trial court stated that reason when it dismissed the demand and reiterated it when it denied the plea. . . . OCGA § 17-7-170, the statute governing speedy trial demands, however, has no such requirement in it. Compare OCGA § 17-7-171 (b), which applies only to capital oifenses and contains such a requirement.

“The ground on which the trial court relied was nonmeritorious and the record reveals no affirmative act of [defendant] which delayed trial in this case until after the period mandated by [his] demand. That being so, [he] was entitled to discharge. . . . Frank v. State, 145 Ga. App. 678 (2) (244 SE2d 619) (1978).” Ciprotti v. State, 190 Ga. App. 639, 640, 641 (4) (379 SE2d 802). See also State v. Collins, 201 Ga. App. 500 (411 SE2d 546).

The State asserts that defendant waived his demand for trial. We disagree. Although a defendant can waive a demand for trial, such a waiver requires an affirmative act demonstrating a willingness to have the case continued. State v. Waters, 170 Ga. App. 505, 508 (3) (317 SE2d 614); Parker v. State, 135 Ga. App. 620, 621 (4) (218 SE2d 324). “[T]he burden of showing a waiver is on the State.” Parker v. State, supra at 621 (4). We find nothing to suggest that defendant took any affirmative steps to waive his demand. Compare Mize v. State, 262 Ga. 489 (422 SE2d 180). The State’s contention that defendant’s counsel acquiesced in the striking of his demand for trial is not supported by the record.

Judgment reversed.

Johnson and Blackburn, JJ., concur.


text:
    A94A0420.
    HOLT v. GRINNELL et al.
    (441 SE2d 874)
   Andrews, Judge.

Grinnell sued Holt for injuries sustained when his automobile collided with an automobile driven by Holt. We granted Holt’s application for an interlocutory appeal from the trial court’s denial of his motion in limine.

Grinnell sought compensatory and punitive damages contending that at the time of the accident Holt negligently drove his automobile while under the influence of alcohol. Holt admitted in his answer to the complaint that he was at fault in the accident. It is also undisputed that Holt pled guilty to the offense of driving under the influence of alcohol in connection with the present accident and that prior to the present accident Holt had twice entered pleas of nolo contendere to charges of driving under the influence of alcohol. Holt moved in limine for an order “excluding the introduction of evidence, argument or reference [to] prior charges of DUI to which the defendant pled nolo contendere including evidence of any sentences or penalties as well as the defendant’s prior driving record.” The trial court ruled that such evidence was inadmissible in the first bifurcated phase of the trial as to punitive damages dealing with whether or not punitive damages should be awarded. See OCGA § 51-12-5.1 (d) (1). However, the trial court concluded that in the second phase of the punitive damages issue “evidence of the circumstances surrounding the two prior DUIs, including evidence of the pleas and the consequences of same, is admissible” as relevant to the amount of punitive damages to be awarded. See OCGA § 51-12-5.1 (d) (2).

We have previously ruled that the plain language of OCGA § 17-7-95 (c) stating that “a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose” prohibits use of a prior plea of nolo contendere as evidence relevant to the issue of punitive damages. Beal v. Braunecker, 185 Ga. App. 429, 431-432 (364 SE2d 308) (1987). Accordingly, the trial court erred by ruling that Holt’s prior pleas of nolo contendere were admissible.

The remaining issue is whether the trial court was correct in ruling that evidence relating to the prior DUIs, other than the pleas of nolo contendere, was admissible for determining the amount of punitive damages to be awarded, if any.

“It is a general rule that in a suit for negligence, evidence of [the defendant’s] similar acts or omissions on other and different occasions is not admissible. Generally, proof of the defendant’s prior driving record, or of his general character for carelessness or recklessness, is impermissible.” (Citations and punctuation omitted.) Thompson v. Moore, 174 Ga. App. 331, 332 (329 SE2d 914) (1985), aff’d in part and rev’d in part on other grounds, Moore v. Thompson, 255 Ga. 236 (336 SE2d 749) (1985). However, an exception to the general rule applies where the defendant’s driving under the influence in the incident at issue is an aggravating circumstance which would authorize the trier of fact to impose punitive damages. Moore, supra at 236, 237. Under those circumstances, which apply to the present case, “[t]he extent of the defendant’s wilful misconduct, wantonness and entire want of care in driving under the influence cannot be gauged solely by focusing on the incident in issue.” Id. at 237. Accordingly, in such cases, evidence that the defendant pled guilty to driving under the influence prior to or even after the incident in issue would be admissible as relevant to the issue of punitive damages. Id. at 237-238; Thompson, supra. “The only reason to exclude the evidence would be the danger of prejudice, but in the balance of things, its relevance to the question of wilful and wanton behavior outweighs any prejudice, where the jury is fully cautioned that the evidence goes only to the question of wilful and wanton behavior and conscious disregard of consequences, and not to the question of negligence in the particular incident on trial.” Thompson, supra at 333.

Evidence that Holt had twice previous to the present incident committed the offense of driving under the influence of alcohol is conduct relevant to the trier of fact’s determination of “what amount of [punitive] damages will be sufficient to deter, penalize, or punish the defendant in light of the circumstances of the case.” OCGA § 51-12-5.1 (d) (2); Thompson, supra at 332; see Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. 759, 764, n. 13 (386 SE2d 120) (1989), judgment reinstated on remand, 261 Ga. 613 (409 SE2d 501) (1991); Dimarco’s, Inc. v. Neidlinger, 207 Ga. App. 526 (428 SE2d 431) (1993); Brown Realty Assoc. v. Thomas, 193 Ga. App. 847, 850 (389 SE2d 505) (1989). Moreover, since the trial court ruled such evidence would be admitted in the second phase of the bifurcated trial on the issue of punitive damages, there is no danger that the jury could improperly use it to determine the defendant’s negligence in the incident at issue.

Although Holt’s two prior pleas of nolo contendere to DUI are not admissible, the trial court correctly denied Holt’s motion in limine to the extent it sought to exclude all other evidence showing that he had twice previously committed the offense of driving under the influence of alcohol. As long as there is no reference to the pleas of nolo contendere or to the criminal disposition of the two previous DUI charges resulting from such pleas, it is permissible to admit other evidence showing that Holt did in fact commit the prior offenses with which he was charged. See Proulx v. State, 196 Ga. App. 303 (395 SE2d 668) (1990); Hansen v. State, 205 Ga. App. 604, 607 (423 SE2d 273) (1992); Harris v. State, 210 Ga. App. 366, 368 (436 SE2d 231) (1993) (admitting as similar transactions, evidence of prior DUI offenses to which the defendants had pled nolo contendere, as long as the State made no reference to the criminal disposition of the prior offenses accomplished through the pleas).

Decided March 2, 1994

Reconsideration denied March 22, 1994

Harper, Waldon & Craig, J. Blair Craig, Frank Boucek III, for appellant.

Robert B. Lipman, James E. Thompson, for appellees.

Butler, Wooten, Overby & Cheeley, Albert Pearson III, amicus curiae.

Judgment affirmed in part and reversed in part.

Beasley, P. J., and Johnson, J., concur.

       We have also held that evidence of a defendant driver’s prior driving record is relevant and essential where a claim seeking punitive damages for negligent entrustment has been asserted against the driver’s employer-entrustor. See Chupp v. Henderson, 134 Ga. App. 808, 810-811 (216 SE2d 366) (1975); Whidby v. Columbine Carrier, 182 Ga. App. 638, 639 (356 SE2d 709) (1987); City of Monroe v. Jordan, 201 Ga. App. 332, 333-334 (411 SE2d 511) (1991); Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 829 (435 SE2d 54) (1993).