text:
    A90A0408.
    ALLEN v. NASH.
    (394 SE2d 395)
   McMurray, Presiding Judge.

On January 6, 1988, plaintiff brought a conversion action against defendant in the State Court of DeKalb County. Defendant was served with a copy of the complaint and summons the same day. No answer was filed and the case went into default. Ultimately, the case was tried by the court (with regard to damages) and, on August 11, 1988, judgment was entered in favor of plaintiff and against defendant in the amount of $12,000 principal, $1,000 punitive damages and $500 attorney fees.

About one month later, on September 9, 1988, defendant filed a “motion to set aside” the judgment. In support of his motion, defendant filed an affidavit in which he deposed that after he was served he went to the Clerk of the State Court “to find out what the papers meant”; that he was told that no court date was set and he needed to speak with plaintiff’s attorney; that he went to the solicitor’s office and was told he needed to go to Legal Aid; that he went to Legal Aid but was told he did not qualify for their legal services; and that he decided to represent himself. Defendant also deposed that he talked to plaintiff’s attorney and was told the case would go to trial; that he “never got anything in the mail about when to come to court”; and that he thought he answered the complaint when he “reported to the State Court Clerk and . . . called [plaintiffs attorney].”

On November 1, 1988, the trial court granted the motion to set aside and the case went to trial again. At the outset of the second trial, the trial court was asked to explain its ruling upon defendant’s motion to set aside. The trial court offered that the motion to set aside had been treated as a motion to open default and that, therefore, the default was opened pursuant to OCGA § 9-11-55 (b).

Upon the conclusion of the second trial, the jury rendered a verdict in favor of plaintiff and against defendant in the amount of $2,500. Judgment was entered accordingly and we granted plaintiff’s application for a discretionary appeal. In her sole enumeration of error, plaintiff contends the trial court erred in granting defendant’s motion to set aside. Held:

1. “Once a final judgment is entered, the provisions of OCGA § 9-11-55 (b) (Code Ann. § 81A-155) regarding the opening of default are inapplicable, Murray Constr. Co. v. Tuxedo &c. Co., 149 Ga. App. 101, 102 (253 SE2d 465) (1979), and the case proceeds under OCGA § 9-11-60 (d) (Code Ann. § 81A-160).” Archer v. Monroe, 165 Ga. App. 724, 725 (2) (302 SE2d 583). Accord Anderson v. Bibb Supply Co., 188 Ga. App. 817 (374 SE2d 556).

2. OCGA § 9-11-60 (d) provides: “A motion to set aside may be brought to set aside a judgment based upon: (1) Lack of jurisdiction over the person or the subject matter; (2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or (3) A nonamendable defect which appears upon the face of the record or pleadings. . . .”

In the case sub judice, the only possible basis for setting aside the judgment pursuant to OCGA § 9-11-60 (d) is the second ground — fraud, accident or mistake or the acts of the plaintiff unmixed with the negligence or fault of defendant. (This ground is derived from a previous edition of OCGA § 9-11-60 (e) which read: “Complaint in equity may be brought to set aside a judgment for fraud, accident, or mistake, or the acts of the adverse party unmixed with the negligence or fault of the complainant.” Ga. L. 1966, pp. 609, 663) The present edition of the Code section prohibits the use of a complaint in equity to set aside a judgment. Ga. L. 1986, pp. 294, 297.

We find no evidence which would authorize the setting aside of the original judgment pursuant to OCGA § 9-11-60 (d) (2). The case went into default and to judgment simply because defendant failed to file a written answer to the complaint and to keep abreast of court calendar notices. He has no one to blame for the entry of judgment but himself and, therefore, the judgment cannot be set aside. As it is said: “[A] judgment cannot be set aside ... if rendition of the judgment is mixed with the negligence of the complainant.” Cooper v. Mesh, 247 Ga. 82, 83 (274 SE2d 335). See also McNally v. Stonehenge, Inc., 242 Ga. 258 (248 SE2d 653).

Decided May 11, 1990.

King, Moriss, Talansky & Witcher, Joseph H. King, Jr., for appellant.

Edgar Lee Nash, pro se.

Judgment reversed.

Carley, C. J., and Sognier, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A90A0634.
    FRAZIER v. THE STATE.
    (394 SE2d 396)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of selling cocaine. Her trial counsel filed a motion for new trial and an amended motion for new trial. These motions were denied and another attorney filed this appeal. Held:

1. In her first and third enumerations, defendant challenges the sufficiency of the evidence.

At trial, Agent Chaneyfield of the Georgia Bureau of Investigation testified that, while working undercover in Cordele, Crisp County, Georgia, he witnessed defendant sell cocaine. This evidence was sufficient to authorize the jury’s finding that defendant was guilty, beyond a reasonable doubt, of selling cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Defendant contends in her second enumeration that the State impermissibly placed her character in issue. More specifically, defendant complains that Agent Chaneyfield’s testimony, that “[approximately 60 percent of [his] work [as an undercover narcotics agent] was around the [area where he observed defendant selling cocaine],” incidentally placed her character in issue.

We find nothing in the above response which tends to impugn defendant’s character. Further, even if defendant’s character was incidentally placed in issue by this testimony, we find no error in allowing the evidence as it logically tended to prove that the area of the alleged offense was intended as a prime territory for the sale of cocaine. See McGinnis v. State, 258 Ga. 673, 674 (2) (372 SE2d 804).

3. In her fourth enumeration, defendant contends the trial court erred in allowing the State to refer to the arresting officer’s testimony that “approximately sixty percent of the drug sales or drug purchased . . .” had been made in the area of defendant’s arrest.

As we held in Division 2, evidence regarding the lucrative drug trade in the area of defendant’s arrest was relevant and therefore admissible evidence. Consequently, the trial court did not err in allowing the State to mention this evidence in the closing argument.

4. Next, defendant contends the trial court erred in allowing the arresting officer’s testimony that another suspect, Sammie Lee Brown, informed him that defendant would be able to supply him (the officer) with cocaine. Defendant argues that this was inadmissible hearsay.

“When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” OCGA § 24-3-2. The above testimony explained the circumstances leading to defendant’s arrest. It was therefore admissible evidence under OCGA § 24-3-2. See Ivester v. State, 252 Ga. 333, 334 (2) (313 SE2d 674).

5. Defendant contends in her sixth enumeration, that the trial court erred in allowing the State to introduce into evidence over $8,000 in cash which was found in the front seat of defendant’s vehicle. Defendant argues that this evidence was inadmissible hearsay.

Even after a liberal reading of defendant’s brief, we find no logic in the hearsay argument. Introduction of this large sum of money into evidence was obviously relevant as it was found in a vehicle in which defendant was observed selling cocaine.

6. Next, defendant contends the trial court erred in allowing the State to introduce certified records showing her 1983 Crisp County conviction for selling marijuana.

“ ‘Before evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.’ (Citations and punctuation omitted.) Baxter v. State, 160 Ga. App. 181, 184 (286 SE2d 460) (1981).” Adams v. State, 190 Ga. App. 393, 396 (2) (379 SE2d 205).

The certified 1983 Crisp County records show that defendant was the perpetrator of the crime, selling marijuana. This was sufficient to satisfy the identity and similarity standards enunciated above. This enumeration is without merit.

7. In her eighth enumeration, defendant contends that her trial counsel was ineffective.

The claim of ineffective assistance of trial counsel is raised for the first time on appeal. However, defendant’s present appellate counsel did not participate in defendant’s motion for new trial filed by her trial counsel. “[T]his case must be remanded for an evidentiary hearing on the issue of the asserted ineffectiveness of [trial counsel]. ‘If the trial court finds [defendant] was denied effective assistance of counsel, [she] will be entitled to a new trial. If the court finds adversely to [defendant], [defendant’s] right to appeal that order within thirty days is preserved. (Cit.)’ Brooks v. State, 187 Ga. App. 92, 94 (2) (369 SE2d 349) (1988).” Parrish v. State, 194 Ga. App. 760 (4) (391 SE2d 797).

Decided May 11, 1990.

Christine A. Van Dross, for appellant.

John C. Pridgen, District Attorney, for appellee.

Judgment affirmed and case remanded with direction.

Sognier, J., concurs. Carley, C. J., concurs in Divisions 1, 2, 3, 5 and 7 and in the judgment.


text:
    A90A0655.
    JOHNSON v. THE STATE.
    (394 SE2d 591)
   McMurray, Presiding Judge.

Defendant filed this appeal after her conviction for violating two counts of Georgia’s Controlled Substances Act (distributing cocaine). Held:

1. In her first enumeration, defendant contends the trial court erred in quashing her subpoena to the State Crime Laboratory chemist who analyzed the cocaine which defendant was accused of selling to a Georgia Bureau of Investigation undercover agent on two occasions. Defendant raises several constitutional challenges, but more specifically argues that denied access to the chemist’s work product resulted in a violation of her Sixth Amendment right to effectively cross-examine the State’s chemist.

In the whole court case of Eason v. State, 194 Ga. App. 678, 680 (391 SE2d 427) (1990), this Court held that “[a]bsent a request for independent testing [of the suspect controlled substance] and a differing result, the defendant in a drug case is afforded the opportunity for an ‘effective cross-examination’ of the State’s expert as to his testing methods and results without having access to the entirety of his work product.” Id. In the case sub judice, defendant did not request or conduct an independent analysis of the suspected cocaine. Consequently, there was no basis for her request for the State’s expert’s work product. See Dye v. State, 177 Ga. App. 813, 814 (3) (341 SE2d 469). The trial court did not err in quashing defendant’s subpoena to the State’s chemist.

2. In her second and third enumerations, defendant contends the trial court erred in failing to give two of her requested jury instructions. Both requests address the weight to be given to expert testimony. This issue was properly covered in the trial court’s charge. Consequently, it was not error to exclude defendant’s requested instructions. See Caldwell v. State, 167 Ga. App. 692, 695 (6) (307 SE2d 511).

Decided May 11, 1990.

Larsen & Larsen, W. W. Larsen, Jr., for appellant.

Ralph M. Walke, District Attorney, L. Craig Fraser, Peter F. Larsen, Assistant District Attorneys, for appellee.

3. The State does not challenge defendant’s final enumeration.

Defendant was sentenced to serve 10 years on each count of the indictment concurrently, with the final 2 years to be served on probation. Among the conditions of probation was the payment of a $1,500 fine. “The trial court erred in making [defendant’s] payment of a fine a condition of probation without first conducting a hearing in accordance with Bearden v. Georgia, 461 U. S. 660 (103 SC 2064, 76 LE2d 221) (1983). See Gaither v. Inman, 253 Ga. 484 (322 SE2d 242) (1984); Day v. State, 188 Ga. App. 648, 651 (10) (374 SE2d 87) (1988). ‘Accordingly [defendant’s] conditionally-probated sentence . . . must be reversed and the case remanded with direction that [defendant] be resentenced ... in accordance with Bearden and Gaither. (Cit.)’ Day v. State, supra at 652 (10).” Eason v. State, 194 Ga. App. 678, supra at Division 4.

Judgments of conviction affirmed. Sentences reversed with direction.

Carley, C. J., and Sognier, J., concur.


author: Beasley, Judge.

text:
    A90A0670.
    HARPER v. DEPARTMENT OF TRANSPORTATION et al.
    (394 SE2d 398)
   Beasley, Judge.

Plaintiff Harper, administrator of the estate of his brother, who died from a highway collision, was granted interlocutory appeal from the denial of his motion to add parties defendant in this wrongful death suit against Georgia DOT and its agents and employees. The denial was based on the motion’s filing after expiration of the statute of limitation for the cause of action.

The deceased’s vehicle collided head-on with a concrete abutment and median or barrier wall dividing Interstate 75 in Clayton County on February 22, 1987. On February 13, 1989, Harper filed suit naming as defendants DOT, its employees Mills (traffic and safety engineer for the district at the time of the collision), and McWhorter (district maintenance engineer, Clayton County), and three “John Doe” defendants, “A” (the state design engineer for the interstate highway system and in particular for 1-75 in Clayton County), John Doe “B” (the traffic safety engineer for Clayton County), and John Doe “C” (the traffic maintenance supervisor for Clayton County).

Within two days of filing suit, the named defendants plus Lively as “John Doe A,” were served. Lively had been identified as the state design engineer. Subsequently, DOT’s counsel informed Harper’s counsel that Lively was probably an incorrect party and identified Lively’s predecessor, McCoy, as being the proper person. McCoy was served on March 30. On May 25 Harper and Clayton County entered into a joint voluntary dismissal of all claims, counterclaims, and cross-claims involving the county defendants, based on exonerating affidavits.

Following the taking of depositions of the DOT defendants and a collision witness in mid-July, Harper determined that McCoy and Lively were not proper defendants and that DOT employees Burn-ham (state traffic and highway safety engineer), Henry (supervisor for the DOT emergency maintenance office), and Watson (state maintenance engineer) were the right parties. By agreement, Burnham was deposed on August 9. On August 23, Harper moved to drop Lively and McCoy as parties defendant and to add Burnham, Henry, and Watson pursuant to OCGA §§ 9-11-19 and 9-11-20.

At the hearing on the motion, Harper argued that addition of the parties was within the court’s discretion taking into account any prejudice to the parties. DOT responded that the addition could not be made after expiration of the statute of limitation. Although the trial court listened to Harper’s contentions regarding the diligence exercised in attempting to find the proper parties defendant and the lack of prejudice to the sought defendants, the court made no findings in those regards. It stated, and reiterated in the order, that it denied the motion to add the parties “purely based on the Statute of Limitations.” The Court permitted Harper to drop the unwanted defendants.

“In order for an additional party to be added to an existing suit by amendment pursuant to OCGA § 9-11-15 . . . , leave of court must first be sought and obtained pursuant to OCGA § 9-11-21. . . . [Cits.] ... An amendment adding or changing a party may be allowed even though a separate action by or against that party would be barred by the statute of limitation.” Horne v. Carswell, 167 Ga. App. 229, 230 (306 SE2d 94) (1983). Harper’s motion to add was “subject to the provisions of OCGA §§ 9-11-15 (c) and 9-11-21, and the factors related thereto. [Cits.]” Bil-Jax, Inc. v. Scott, 183 Ga. App. 516 (359 SE2d 362) (1987).

The rules and guidance set forth in Horne and Bil-Jax apply so that Harper’s motion was not barred as a matter of law merely because it was brought after the running of the action’s statute of limitation. The court should have exercised its discretion, after assessing the relevant factors, in ruling on the motion. The court must decide the merits of the motion to add, and the case is therefore remanded to the trial court for this purpose.

Decided May 11, 1990.

Strauss & Walker, John T. Strauss, for appellant.

Michael J. Bowers, Attorney General, Roland F. Matson, Senior Assistant Attorney General, Cathy A. Cox, Assistant Attorney General, for appellee.

Judgment reversed and case remanded with direction.

Deen, P. J., and Pope, J., concur.


text:
    A90A0707.
    COOK v. JORDAN BRADLEY SUPPLY COMPANY et al.
    (394 SE2d 400)
   McMurray, Presiding Judge.

On March 4, 1988, the State Board of Workers’ Compensation denied appellant Cook’s request for disability benefits. Over six months later, Cook requested a hearing before an administrative law judge for the purpose of opening the record for the introduction of newly discovered evidence. On February 17, 1989, the administrative law judge denied Cook’s request, holding that there is “no provision of law which will permit the reopening of the record for the introduction of newly discovered evidence.” Appeals to the full board of the State Board of Workers’ Compensation and to the superior court were fruitless. We granted Cook’s application for appeal to determine whether he was entitled to a hearing for the purpose of determining whether the record should be opened for the introduction of newly discovered evidence. Held:

Rule 103 (d) of the Rules and Regulations of the State Board of Workers’ Compensation provides as follows: “Except as provided in (c), the board will apply the law of Georgia regarding the nature and character of newly discovered evidence required for the granting of a new trial.” Cook argues that this administrative rule authorized an OCGA § 5-5-41 (a) hearing on his extraordinary motion for new trial. We do not agree as it is the statutory provisions of the Workers’ Compensation Act, not the Board’s administrative rules, which determine the Board’s jurisdiction.

Decided May 11, 1990.

Littlejohn & Pugh, F. Houser Pugh, for appellant.

Swift, Currie, McGhee & Hiers, Mark J. Goodman, for appellees.

“It is well settled that the Board . . . , being an administrative body clothed with quasi-judicial functions, has no power save that conferred on it by statute, and that it does not have any power, even within the 30-day period following its award in which an appeal can be made, to vacate or modify its decision. [Cits.] Apparently this also precludes the [BJoard from re-opening the case on a petition for rehearing on the ground of newly discovered evidence. [Cits.]” (Emphasis supplied.) Hyde v. Atlantic Steel Co., 112 Ga. App. 136 (1a), 137 (144 SE2d 232) (1965). “Neither upon its own motion, nor upon application of the employer and the claimant, has the [Board] the power and authority, under [any] provisions of the [Workers’] [C]ompensation [A]ct ([cit.]), to pass an order reopening a case and granting another hearing for the taking of evidence, and to reconsider the case upon its merits, and thereupon to award compensation to the claimant, after the [Board] has entered [a prior] order . . . finding that the employee in question [is not entitled to workers’ compensation benefits].” Gravitt v. Ga. Cas. Co., 158 Ga. 613 (1) (123 SE 897) (1924). In the case sub judice, since there is no statutory authority for Cook to seek or the Board to conduct a post-award hearing on the ground of newly discovered evidence, it necessarily follows that the superior court correctly affirmed the Board’s ruling that it had no jurisdiction to hear Cook’s request for a hearing to open the record for the introduction of newly discovered evidence.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


author: Deen, Presiding Judge.

text:
    A90A0710.
    BOGGS v. THE STATE.
    (394 SE2d 401)
   Deen, Presiding Judge.

Larry Boggs was tried and convicted of aggravated assault. He appeals, contending that the trial court erred in denying his motion in limine, thereby prohibiting him from inquiring into the fact that the victim had a civil action for damages pending against the defendant. Held:

Boggs and the victim had spent an afternoon drinking beer at the home of the defendant’s former girl friend. The men quarreled over Boggs’ abusive treatment of the woman, and Boggs left. He later returned, and the men began to fight. During the struggle, the victim was stabbed four times. Boggs admitted the stabbings to the investigating police officers. At trial, he asserted the defense of self-defense.

Decided May 11, 1990.

Roger L. Curry, for appellant.

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

In criminal cases, it is reversible error where there is conflicting evidence to refuse to permit the State’s witness on cross-examination to testify that he has a damage suit pending based on the same facts involved in the criminal case. Chancellor v. State, 165 Ga. App. 365, 372 (301 SE2d 294) (1983).

Unlike the case of Chancellor v. State, 165 Ga. App. 365, supra, where there was no conflict in the evidence, in the instant case there was a conflict in the evidence with regard to who was the aggressor. Defendant claimed self-defense and also that some of the victim’s wounds were not deliberately inflicted by him but occurred because the victim got in the way of the knife during their fight. There was evidence that the victim was more intoxicated than either defendant or the girl friend, and that he was larger and more muscular than defendant. A neighbor testified that immediately after the fight was over he heard the victim say he was sorry he “messed with” defendant, and that defendant called for an ambulance.

Defendant testified that the victim had verbally threatened him, had attacked him from behind as he was leaving the premises, and tried to kick him but fell down because he was “real bad drunk.” The fight started, according to defendant’s version, when he returned for some clothing and the victim threw him against the fence. The victim put his thumb in defendant’s eye while he was on top of defendant after getting defendant down on the ground, and he got cut during this time. Defendant never deliberately stabbed the victim, he said, and he too sustained cuts.

In ruling at the beginning of the trial, the court prohibited defendant from eliciting from the victim, a State’s witness, that he had pending a civil action against defendant for his injuries. Defendant wished to cross-examine him to establish this fact to prove his interest in the outcome of the criminal trial and so attack his credibility.

Defendant was entitled to a thorough and sifting cross-examination. OCGA § 24-9-64. He was entitled to show the state of the witness’ feelings towards him and the witness’ relationship to him. OCGA § 24-9-68. Kelly v. State, 63 Ga. App. 231, 240 (8) (10 SE2d 417) (1940); Lloyd v. State, 40 Ga. App. 230 (149 SE 174) (1929).

Judgment reversed.

Pope and Beasley, JJ., concur.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A0895.
    CONNORS v. OMNI INSURANCE COMPANY.
    (394 SE2d 402)
   Deen, Presiding Judge.

Lavonia Connors brought suit against Omni Insurance Company for conversion of her automobile and its contents. The evidence showed that shortly after the car was involved in an accident with Omni’s insured, it was towed to Beaudry Ford. The insurance company later moved it to a free storage location in Dalton, Georgia. A jury verdict was returned and entered in favor of the insurance company, and Connors appeals. Held:

1. The basis for a trover action is conversion. Southern Express Co. v. Sinclair, 130 Ga. 372, 373 (60 SE 849) (1908); McDaniel v. White, 140 Ga. App. 118 (230 SE2d 500) (1976). However, “ ‘demand and a (wrongful) refusal are prerequisites to a trover action.’ [Cits.]” Brooks v. Fincher, 150 Ga. App. 201, 204 (257 SE2d 326) (1979).

A claims adjuster for the insurance company testified that permission to move the automobile from Beaudry Ford to the free storage location was given by Connors’ attorney’s office after the vehicle was determined to be a total loss. The attorney’s former secretary testified by deposition read into the record that she usually handled such matters and did not authorize movement of the vehicle, and was very surprised to learn that it had been moved without permission. The conflicting testimony was a factual issue to be resolved by the jury, and it alone determines the credibility of the witnesses. Redd v. State, 154 Ga. App. 373 (268 SE2d 423) (1980). Other testimony indicated that the insurance company offered to return the vehicle, but the offer was refused. There was evidence to support the jury verdict.

2. The evidence presented as to appellee’s attempt to return the vehicle was used to establish that appellant made no demand for the vehicle coupled with a wrongful refusal to deliver it. See Brooks v. Fincher, supra at 204. Indeed, the evidence showed that appellant refused appellee’s offer to return it, and this evidence was offered to disprove the trover claim.

3. We find no error in the giving of appellee’s request to charge number 7. It is a statement of the legal principles set forth in McDaniel v. White, supra, and Brooks v. Fincher, supra.

4. Appellant further contends that the trial court erred in giving her request to charge number 2, which tracked the provisions of OCGA § 44-12-150: “In actions to recover possession of chattels, it shall not be necessary to prove any conversion of the property if the defendant is in possession when the action is brought.” In giving the charge the court inserted the word “unlawful” in front of “possession.”

Under McDaniel v. White, supra, which established that lawful possession is a defense to a trover action, the court held that an exception to OCGA § 44-12-150 exists “if the defendant acquired possession lawfully, and in this event it is necessary to prove either actual conversion or a demand for return of the property and defendant’s failure of refusal to redeliver.” This charge was authorized by the evidence.

5. During the period of the alleged conversion, all correspondence for Mrs. Connors pertaining to the automobile and the insurance company were conducted by her attorney and his staff. Several months prior to trial, appellee indicated that it intended to call the attorney as a witness at trial, and he was later subpoenaed. At no time did he seek to withdraw from the case or seek a protective order. At trial, the judge questioned him as to his reason for not withdrawing if he expected to be called as a witness. Counsel replied, “No sir, I shouldn’t have to. If that were the case, then that would mean the way to win every case is just to subpoena your opponent. The attorney is always going to have some input into the case.” The court permitted him to testify as a defense witness. Co-counsel cross-examined him.

The Rules and Regulations for the Government of the State Bar of Georgia, 241 Ga. 643 (1978), contain The State Bar of Georgia’s Code of Professional Responsibility. Canon 5 states, “A lawyer should exercise independent professional judgment on behalf of a client.” EC5-9 (1983) states, “If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness ... An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of the advocate is to advance and argue the cause of another, while that of a witness is to state the facts objectively.” Under EC5-10 (1983), “Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his . . . continuing as an advocate.” DR5-102 of the Code of Professional Responsibility mandates, “When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel.” See also Castell v. Kemp, 254 Ga. 556 (331 SE2d 528) (1985); Malley Motors v. Davis, 183 Ga. App. 599 (359 SE2d 394) (1987).

Counsel in this case should not have appeared in the roles of defense witness and plaintiff’s attorney, but he raised no objection in the court below. He is also representing Connors on appeal. Issues not raised below cannot be raised for the first time on appeal. McCounly v. State, 191 Ga. App. 266 (381 SE2d 552) (1989).

Decided May 11, 1990.

Richard E. Stark, for appellant.

Crim & Bassler, Philip G. Pompilio, Harry W. Bassler, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur specially.

Beasley, Judge,

concurring specially.

I concur fully in Divisions 1 through 4.1 concur in Division 5 that counsel’s acting both as counsel and as witness raises a question of ethical propriety. Raising an objection to appearing as a subpoenaed witness for the defense would not have cured the problem, however. Counsel could not avoid testifying, as he had been called and his testimony was relevant since he had been involved in the very transaction which gave rise to the cause of action. Plaintiff’s theory of conversion contended that it occurred by way of events in which her attorney was acting as her agent and she was not even involved personally. Plaintiff’s evidence in her case-in-chief brought the actions of the attorney and his staff into the proof of the alleged conversion.

Thus, the answer would have been withdrawal, not an objection to being called as an adverse witness by the defendant.

I am authorized to state that Judge Pope joins in this special concurrence.


text:
    A90A1099.
    FREELS v. THE STATE.
    (394 SE2d 405)
   Deen, Presiding Judge.

Kendra Urbanski, a twenty-six-year-old divorcee who lived with her mother and young daughter, accused appellant of raping her at his home after they had spent several hours drinking and dancing at two Gwinnett County restaurant-bars. Ms. Urbanski had gone to the first establishment with her mother and had fallen into conversation with appellant after he introduced himself and offered to buy her a drink. She accompanied him to the second restaurant-bar for the stated purpose of listening to a particular kind of music available there. Because Freels was temporarily without his own vehicle, Urbanski borrowed her mother’s car after agreeing to pick the latter up at 2:00 a.m. (when the bar closed) and drove him to the second restaurant.

According to Urbanski’s testimony, Freels had insisted on kissing her and making other intimate overtures while they danced or sat drinking; according to Freels, it was not he but Urbanski who initiated these acts. When it was almost time for her to pick up her mother, Urbanski and Freels left the second restaurant, and she drove him to his home, following his spoken directions. According to Freels, he invited her to come in and she accepted, thereafter asking to use the bathroom. According to Urbanski, she asked before leaving the car if she might come in for the express purpose of using the bathroom before proceeding to pick up her mother; it was immediately after she emerged from the bathroom, she alleged, that Freels grabbed her hands, “dragged” her into the adjacent bedroom, and forced her, over protests that she had to get her mother and did not wish sex, to engage in sexual relations. Freels’ version was that Urbanski willingly entered the bedroom and engaged in sex, the only condition being that they do it quickly so that she could go ahead and get her mother. The parties agreed that after the bedroom episode was concluded, Freels asked Urbanski to write and sign a statement that she had not been raped but had gone to bed with Freels of her own free will. The signed, hand-written statement was offered in evidence, Freels alleging that the statement was given willingly and proved consensuality, while Urbanski argued that it was given only after Freels had threatened her with battery. Urbanski then drove home, conferred with her mother, and called the police. Freels was subsequently located and arrested.

At trial an experienced gynecologist, whose credentials as an expert witness had been stipulated and who examined Urbanski shortly after she had reported the incident, testified that the faint skin discolorations and the vaginal tear revealed by her examination were consistent with non-consensual intercourse, or rape. The defense attempted to impeach Urbanski’s credibility.

A jury found Freels guilty as charged. After denial of his motion for new trial, Freels appeals, enumerating as error the prosecutor’s alleged “bolstering” of his witnesses’ testimony; the prosecutor’s “readfing] and argu[ing] law to the jury”; the trial court’s permitting the investigating officer to remain in the courtroom after the rule of sequestration had been invoked; the denial of appellant’s motion for mistrial on the basis that Urbanski’s entire statement was read to the jury; and the trial court’s permitting this statement to be read to the jury by the investigating officer. Held:

1. Our scrutiny of the trial transcript reveals nothing in the prosecution’s statement that could reasonably be interpreted as improperly “bolstering” his witnesses’ testimony. Moreover, the cases cited in appellant’s brief in support of his enumeration do not support his main objection, i.e., “bolstering,” but pertain only to ancillary points. The transcript further reveals that no objection was made below to these remarks; therefore, the alleged error was not preserved for appellate review. We find no merit in this enumeration.

2. Although, as appellant correctly states, the ancient practice of counsel’s “reading law” to the jury (in the specialized sense of reading aloud cases which purportedly illustrate the legal principles of which counsel wishes the jury to be aware) was abolished in Conklin v. State, 254 Ga. 558, 571 (331 SE2d 532) (1985), that case by no means precluded the citation or discussion of relevant statutory law. In Conklin the court observed that the enactment of OCGA § 5-5-24, which provides for written requests to charge and requires the court to inform counsel of the requests’ acceptance or rejection, renders “reading the law” both unnecessary and incorrect, supra at 569. The court expressly held, however, at 570, that “[cjounsel have every right to refer to applicable law during closing argument (i.e., law that the court is going to give in charge).” This court interpreted Conklin in Dorsey v. State, 188 Ga. App. 695 (374 SE2d 102) (1988), where we cited Beck v. State, 181 Ga. App. 681, 683 (353 SE2d 610) (1987), and held that “ ‘[i]t is counsel’s right to state his legal position to the jury; this right is indispensable to an intelligent presentation of his case.’ Error flows from a misstatement of the law which may tend to mislead the jury. Defendant has failed to point out wherein there was such misstatement of the law and thus did not show harm.”

In the instant case, as in Beck and Dorsey, there is no indication that the prosecutor misstated the law, and appellant has not demonstrated that any harm flowed from his discussion of it. Appellant’s second enumeration is without merit.

3. In Blalock v. State, 250 Ga. 441 (298 SE2d 477) (1983), “[t]he witness was a police [officer] who was the chief investigating officer. The prosecutor stated that he needed him for presentation of the case and that to require him to testify first would interfere with the orderly presentation of the case. In this situation [, the court pronounced,] we have found [that] the exception of a witness from the rule of sequestration is within the discretion of trial judge. [Cit.]” With identical facts in the case sub judice, we find Blalock controlling and appellant’s third enumeration, therefore, devoid of merit.

4. In Lowe v. State, 97 Ga. 792 (25 SE 676) (1895), the Supreme Court held, at 794: “The rule is well settled, that where an effort is made to impeach a witness by proving contradictory statements made in a conversation which occurred previously to the trial, it is competent to sustain the witness by bringing out the whole of that conversation, in order that the true drift and meaning of what was then said . . . may be correctly understood.” Accord Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985); Johnson v. State, 244 Ga. 295 (260 SE2d 23) (1979). We find no error either in the trial court’s allowing Ms. Urbanski’s entire prior statement to be read to the jury, or in his permitting the investigating officer to be the reader.

Decided May 11, 1990.

Ronnie K. Batchelor, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Terry L. Lloyd, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Cooper, Judge.

text:
    A90A0173.
    BANKS v. THE STATE. RADFORD v. SUPERIOR COURT OF EMANUEL COUNTY.
    A90A0009.
    (394 SE2d 356)
    Decided April 10, 1990
    Rehearing denied May 14, 1990.
    Jimmy Radford, pro se.

      Richard A. Malone, District Attorney, Samuel H. Altman, Assistant District Attorney, for appellee (case no. A90A0009).
   Cooper, Judge.

These pro se appeals have been consolidated for review because they both involve the denial of indigent appellants’ requests for copies of their trial transcripts to be provided at the State’s expense. Neither appellant filed a direct appeal from his criminal conviction within the time specified by law.

1. “ ‘While an indigent is entitled to a copy of his trial transcript for a direct appeal of his conviction, such is not the case in collateral post-conviction proceedings.’ [Cit.] ‘After the time for appeal has expired there is no due process or equal protection right to a free copy of one’s court records absent a showing of necessity or justification. [Cits.]’ [Cit.]” McDowell v. Balkcom, 246 Ga. 611 (272 SE2d 280) (1980). Accord Bailey v. State, 259 Ga. 340 (2) (380 SE2d 264) (1989); Montgomery v. Tremblay, 249 Ga. 483 (292 SE2d 64) (1982). Since neither appellant stated a specific reason which would necessitate or justify obtaining a free copy of his trial transcript, there was no error in the denial of their motions.

2. Appellant Radford’s additional objections are likewise without merit, as they are either supported by no binding authority or no authority at all. Furthermore, our review of the record shows that these enumerations do not constitute grounds for reversal.

Judgments affirmed.

Banke, P. J., and Birdsong, J., concur.

Joseph Banks, pro se.

Robert E. Wilson, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee (case no. A90A0173).


author: Sognier, Judge.

text:
    A90A0307.
    DISMUKE v. DISMUKE et al.
    (394 SE2d 371)
   Sognier, Judge.

Robert Dismuke filed an application in probate court to be named administrator with will annexed of the estate of his father, R. T. Dismuke, Jr., after the widow, the executrix named in the will, renounced the position. The remaining beneficiaries under the will, Debbie Dismuke, Keith Dismuke, and Diane Dismuke Abbott, filed a caveat to Robert’s application, and proposed that Diane be appointed administratrix with will annexed instead. The probate court sustained the caveat, and Robert appealed to the superior court, which also ruled in favor of the caveators. This appeal ensued.

1. Appellant’s main contention is that he, the person selected by the testator’s surviving spouse, is entitled to be appointed as administrator with the will annexed rather than his sister, the person selected by appellees, the majority of the beneficiaries under the will. Appellant relies upon language in OCGA § 53-6-24 that “[i]n the granting of letters of administration of any kind, the following rules shall be observed . . . : (1) The surviving spouse . . . shall be first entitled” (emphasis supplied) and numerous opinions which hold that the surviving spouse, upon declining to serve personally as administrator, is entitled to select the person to serve as replacement. See, e.g., Rivers v. Alsup, 188 Ga. 75, 76 (1) (2 SE2d 632) (1939); Mabry v. Mabry, 65 Ga. App. 132, 133 (15 SE2d 447) (1941). Although these cases all arose in situations of intestacy, appellant argues that the above-emphasized language in OCGA § 53-6-24 extends application of this principle to situations such as the one sub judice.

Appellant’s argument, however, must fall in light of OCGA § 53-6-24 (11). In 1979, the predecessor statute of OCGA § 53-6-24 was amended for the recited purpose, inter alia, “to provide for successor executors in certain cases.” Ga. L. 1979, p. 1325. The statute was amended by adding subsection (11), which provides that “[i]n lieu of the foregoing rules, the beneficiaries under a will who are capable of expressing a choice shall be entitled to name an administrator with the will annexed.” (Emphasis supplied.) Apart from being the latest pronouncement of legislative intent, the language in OCGA § 53-6-24 (11) demonstrates that it is to be applied “in lieu of” or in place of the rules upon which appellant relies, where selection of an administrator with the will annexed is concerned.

Appellant asserts that OCGA § 53-6-24 (11) does not control here because that statute must be construed as requiring all the beneficiaries under the will, not just a majority thereof, to consent to the administrator selected. Appellant points to OCGA § 53-6-29, enacted in 1984 for the purpose of reducing the amount of publications required of fiduciaries, Ga. L. 1984, p. 937, which authorizes beneficiaries under the will, who have selected an administrator with will annexed pursuant to OCGA § 53-6-24 (11), to eschew the publication of citation otherwise required. Appellant asserts that OCGA § 53-6-29 indicates the Legislature intended that the approval of all the beneficiaries under the will be obtained before an administrator with will annexed could be selected under OCGA § 53-6-24 (11), because otherwise an administrator could be selected by a majority of such beneficiaries without the minority beneficiaries ever being consulted or even informed of the selection. Although appellant also contends this lack of notice would extend even to the probating of the will, the notice provisions of OCGA §§ 53-3-13 and -14 provide to the contrary.

The language of OCGA § 53-6-24 (11) is silent as to whether all or just a majority of the beneficiaries under the will are entitled to name an administrator with will annexed. Appellees argue that because OCGA § 53-6-24 (11) does not clearly express an answer to this issue, this court must look to the rules of statutory construction. In particular, appellees urge this court to consider OCGA § 1-3-1 (d) (5), which provides that “[a] joint authority given to any number of persons or officers may be executed by a majority of them, unless it is otherwise declared.” Because OCGA § 53-6-24 (11) does not declare that all the beneficiaries under the will must agree to the naming of the administrator, appellees assert that the rule of construction in OCGA § 1-3-1 (d) (5) applies.

We agree. We appreciate appellant’s concern that because of the phrasing of OCGA § 53-6-29, in its attempt to reduce the burden of publications on fiduciaries the Legislature has provided that in some circumstances a minority of beneficiaries under a will might not receive notification that a majority of the beneficiaries had selected an administrator with will annexed. Correction of this matter, however, is best addressed to the Legislature. Looking to the interpretation to be given OCGA § 53-6-24 (11), it is apparent that while the statute does not provide how the selection of an administrator must be made, clearly it does mandate that its language is to be applied “in lieu of” the remaining rules set forth in the statute, rules which both parties acknowledge have historically been applied solely in intestacy situations. To accept appellant’s argument and turn to OCGA § 53-6-24 (1) and case law interpreting that subsection, in preference to OCGA § 53-6-24 (11), would require rejecting the explicit statutory language that subsection (11) operate “in lieu of” subsection (1) and the remaining subsections. Since appellant’s construction of the statute creates an immediate and direct conflict among the subsections in OCGA § 53-6-24, we cannot accept that interpretation. “It is a well-established principle that a statute must be viewed so as to make all its parts harmonize and to give a sensible and intelligent effect to each part.” Houston v. Lowes of Savannah, 235 Ga. 201, 203 (219 SE2d 115) (1975).

Appellant argues that construing OCGA § 53-6-24 (11) in the manner proposed by appellees enables heirs with a minority interest in the estate (here, three eighths of the total) to dictate the choice of administrator with will annexed. However, the statute provides no grounds for distinguishing between beneficiaries based on the size or nature of their interest in the estate, and we see no reason to make such a distinction here.

Therefore, since a majority of the beneficiaries under a will are entitled to select an administrator with the will annexed, OCGA §§ 53-6-24 (11); 1-3-1 (d) (5), the trial court properly ruled in favor of appellees.

2. Contrary to appellant’s assertion, the record clearly established that the widow, Greta Dismuke, renounced her right to serve as executrix. Thus, under OCGA § 53-6-71, she “may not afterwards relieve [her]self from the effect of renunciation.” We find no error in the trial court’s denial of the motion to substitute Greta Dismuke as executrix or the denial of appellant’s motion for judgment on the pleadings based on the attempted substitution.

3. Appellant contends the trial court erred by granting appellees’ motion for sanctions pursuant to OCGA § 9-11-37 (d) based on appellant’s failure to appear at a deposition. The record reveals that appellant had filed a timely motion for a protective order concerning the taking of the deposition. The trial court apparently entertained appellant’s motion for a protective order at the same time it considered appellees’ motion for sanctions. The record, however, reflects that the trial court never ruled upon appellant’s motion for a protective order. “While the protective order was pending, the entry of [sanctions] under [OCGA § 9-11-37 (d)] was erroneous. [Cit.]” Corey v. Renard, 151 Ga. App. 584 (260 SE2d 538) (1979). The trial court’s grant of appellees’ motion for sanctions is accordingly reversed.

4. Our holding above affirming the order of the trial court appointing appellee Diane Dismuke Abbott as administratrix with will annexed of the estate of R. T. Dismuke renders moot appellant’s exception to the trial court’s order of August 31, 1989, directing the probate court to issue letters of temporary administration to that appellee.

Judgment affirmed in part and reversed in part.

Carley, C. J., and McMurray, P. J., concur.

Decided April 30, 1990

Rehearing denied May 14, 1990

Mills & Chasteen, Ben B. Mills, Jr., for appellant.

M. Theodore Solomon, for appellees.


author: Pope, Judge.

text:
    A90A0041.
    PARKING COMPANY OF AMERICA v. SUCAN.
    (394 SE2d 411)
   Pope, Judge.

Plaintiff/appellee Stanley E. Sucan brought suit against the defendant/appellant Parking Company of America seeking to recover the cost of repairs to his automobile which was damaged while parked in defendant’s facility at Hartsfield Airport, and attorney fees. The evidence showed that Sucan had left his car in good condition in a permissible space in the parking lot for a three-day period, and that when he returned the car’s exterior was so badly pitted it required a complete paint job and a hew windshield to restore it to the same condition. Sucan and defendant’s general manager inspected the area where he had parked and discovered that two adjacent cars had been damaged in the same manner. The area where these vehicles were parked was approximately 150 to 160 feet away from where the MARTA rail line was being constructed. Sucan filed a claim with defendant, which referred the matter to MARTA and its contractor to determine what construction was taking place at that time. At defendant’s request he also obtained three written estimates of the cost of repairs. The MARTA contractor agreed to pay for replacement of the windshield. Although Sucan was assured by defendant at the time he reported the damage and for six months afterwards that it would take care of the paint repairs, this was not done. On April 15, 1988, Sucan wrote defendant that if he did not hear from it within five days, he would turn the matter over to his attorney. On May 3, 1988, having received no reply, Sucan’s lawyer wrote defendant to request a resolution to the problem, stating that unless they received a response within seven days a lawsuit would be filed. No reply was received and on July 11, 1988, the instant suit was filed.

A bench trial was held and the trial court found that while Sucan’s automobile was parked at defendant’s parking lot a dangerous condition existed which was unknown to Sucan, but which defendant knew or should have known about; that this dangerous condition was the proximate cause of the damage to Sucan’s car; and that defendant failed to warn him of the condition. The trial court concluded as a matter of law that defendant owed a duty to advise Sucan of the dangerous condition that existed in the parking lot and that Sucan was entitled to recover the costs to repaint his car along with reasonable attorney fees. Appealing from this judgment, defendant argues that it had no duty to warn Sucan of the dangerous condition as he already knew the MARTA rail line was being constructed near the parking lot, and that there was insufficient evidence to support a finding that it caused Sucan unnecessary trouble or expense or was stubbornly litigious so as to entitle him to recover attorney fees. Held:

1. “In a bench trial the court sits as the trier of fact and his findings shall not be set aside unless clearly erroneous. OCGA § 9-11-52 (a). The clearly erroneous test is the same as the any evidence rule. Thus an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.” (Citations and punctuation omitted.) Smith v. Carlton Farms, 181 Ga. App. 743, 744 (2) (353 SE2d 624) (1987). “ ‘An owner of premises, as to invitees, owes a duty to exercise ordinary care for their protection to keep the premises safe, not reasonably safe. (Cits.)’ [Cit.] ‘A business invitor owes a nondelegable duty to protect [its] invitees from injury. . . .’ [Cit.]” Towles v. Cox, 181 Ga. App. 194, 196 (351 SE2d 718) (1986). “ ‘As distinguished from defects in construction, where the rule is that the landlord is conclusively presumed to have knowledge thereof [cits.], mere defects in the maintenance of the premises must be shown to have existed for such a length of time, or under such circumstances as to actually or constructively put the owner of the [property] on notice thereof before he will be liable for injuries resulting therefrom. [Cits.]’ [Cits.]” Professional Bldg. v. Reagen, 129 Ga. App. 183, 184 (199 SE2d 266) (1973).

On the trial of the case, the burden is on the plaintiff to show that there has been a sufficient length of time for the defendant to have constructive notice of the dangerous condition. Id. at 185. Defendant’s general manager testified that the MARTA rail line construction near the parking facility had been going on since 1985 or early 1986, and that during that time they had at the direction of the city blocked off areas in the lot to keep cars out when construction was taking place. At the time involved here it was not blocked off, but no effort had been made “to observe the parking lot and see whether or not there was any kind of a fall-out from the construction on any of the cars parked in the lot,” nor was any monitoring of the lot being done. Defendant knew, however, that this area was the site of construction work and because it “did actually observe the ongoing work . . . , a duty to inspect was specifically assumed. [Defendant was] thus on notice of the general manner in which the construction work was being performed.” Towles v. Cox, supra at 196.

Because of the close proximity of the parking lot to the MARTA construction work and defendant’s prior knowledge that consequences of a generally injurious nature might result therefrom, in ordinary prudence it might have foreseen that some injury would result from its failure to observe the parking lot. See generally Sims v. American Cas. Co., 131 Ga. App. 461 (1) (206 SE2d 121), aff'd 232 Ga. 787 (209 SE2d 61) (1974). Thus the trial court’s finding that the defendant owed Sucan the duty of advising him of the existing dangerous condition was supported by some evidence and was not clearly erroneous so as to warrant reversal. Gray v. Brooks, 189 Ga. App. 560 (3) (376 SE2d 722) (1988).

Decided May 14, 1990.

Thomas E. Magill, Cheri D. McLeod, for appellant.

Ira S. Zuckerman, for appellee.

2. The issue of bailment, argued by defendant on appeal, was not considered or ruled upon by the trial court and therefore presents nothing for review by this court.

3. Defendant protests the award of attorney fees on the ground that there was no bona fide controversy with respect to its liability to Sucan. Although we agree that defendant never denied responsibility, the claim for expenses of litigation was based on its failure to settle with Sucan while at the same time assuring him that the repairs to his car would be taken care of. Under OCGA § 13-6-11 expenses of litigation may be awarded if the plaintiff shows that the defendant acted in bad faith, or was stubbornly litigious, or put the plaintiff to unnecessary trouble or expense. “The plaintiff need not show that all three provisions of the statute are present, but only that one of the three conditions exists. [Cits.] The factual situation in the instant case is very similar to that in Buffalo Cab Co. v. Williams, 126 Ga. App. 522 (191 SE2d 317) (1972), wherein the plaintiffs automobile was damaged by the defendant’s cab and the defendant ignored her repeated requests to repair it. The court stated that it deplored the ‘so sue me’ attitude of such defendants, who have no valid reason for refusing to pay a claim, and held that the recovery of attorney fees was authorized. We find no error in the court’s ruling.” U-Haul Co. of Western Ga. v. Ford, 171 Ga. App. 744, 746 (4) (320 SE2d 868) (1984). Employing the any evidence standard of review, we conclude that the trial court did not err here in awarding attorney fees to Sucan. Griffiths v. Phenix Supply Co., 192 Ga. App. 651 (3) (385 SE2d 789) (1989).

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A0183.
    CATO v. THE STATE.
    (394 SE2d 413)
   Pope, Judge.

Defendant William Lewis Cato was convicted of six counts of child molestation and one count of aggravated child molestation. The victims, who ranged in age from four to twelve years old, were, with the exception of a neighborhood child who visited in the home frequently, foster children living in defendant’s mother’s home, where defendant also resided. All testified at trial, with the exception of the youngest victim, and described acts of molestation involving the defendant. Held:

1. Defendant contends that the State failed to disclose, in violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), that a witness for the State, who testified at trial that he had observed defendant committing various acts of molestation, had stated to an investigating officer prior to trial that defendant “wasn’t messing with no kids.” The defendant does not argue that the prosecutor was aware of the witness’ prior statement indicating the defendant did not commit the crimes with which he was charged, but argues the investigating officer was an “arm” of the State and hence actual knowledge by the prosecuting attorney was not required.

Assuming arguendo that the investigating officer was aware of the pre-trial statement “counsel for the State can make available only such evidence as it has in its file, or of which it has knowledge, and is under no requirement to conduct an investigation on behalf of a defendant. There is no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. In Massengale v. State, 189 Ga. App. 877, 881 (377 SE2d 882) [(1989)], we stated (i)n the absence of a clear showing that . . . information was wilfully and intentionally concealed from the defense, we are inclined not to impute to the prosecutor knowledge possessed by the local police. . . . (Emphasis deleted.) The record and transcripts contained no evidence that any wilful or intentional concealment occurred in this case.” (Citation and punctuation omitted.) Brown v. State, 192 Ga. App. 187, 191 (384 SE2d 254) (1989).

“[Moreover], pretermitting this question is the question whether disclosure of any previously nondisclosed information actually possessed by the [investigating officer] would have given rise to a reasonable doubt that did not otherwise exist. In this regard, a prosecutor’s nondisclosure of evidence may impair a defendant’s right to a fair trial only if the evidence not disclosed is material in the sense that it might create in the minds of the jurors a reasonable doubt that did not otherwise exist. The proper test for determining materiality when the prosecutor has failed to disclose favorable evidence pursuant to no request, a general request, or a specific request for evidence by the accused is that the evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

“We find that this nondisclosed information was not material in the sense that there was a reasonable probability that its disclosure could have caused a different outcome in this trial.” (Citation and punctuation omitted.) Massengale v. State, 189 Ga. App. 877, 881-882 (377 SE2d 882) (1989). See also Carter v. State, 237 Ga. 617 (229 SE2d 411) (1976); Williams v. State, 190 Ga. App. 646 (5) (381 SE2d 65) (1989).

2. Defendant also contends that the trial court erred in denying his motion for new trial on the basis that the witness admitted at the hearing on the motion for new trial that he lied when he stated the defendant had molested him and others. “The standard for granting a new trial on the basis of newly discovered evidence is well established. It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. All six requirements must be complied with to secure a new trial.

“Pretermitting the question of whether the ‘newly discovered evidence’ meets the first five of the above requirements, it is clear that the effect of [the witness’] new testimony is to impeach the credibility of his earlier sworn statements. The law is settled that a post-trial declaration by a State’s witness that his former testimony was false is not a ground for a new trial.” (Punctuation and citations omitted.) Drake v. State, 248 Ga. 891, 894 (287 SE2d 180) (1982). Consequently, the trial court did not err in refusing to grant defendant’s motion for new trial on this basis. See Burroughs v. State, 186 Ga. App. 40 (13) (366 SE2d 378) (1988).

3. Defendant also challenges the sufficiency of the evidence to support the conviction as to the molestation of the four-year-old victim (Count 1 of the indictment), the only victim who did not testify at trial. Our review of the record shows that in addition to the trial testimony of one of the victims that he saw the defendant molest the four-year-old, the investigating officer testified she had talked to all of the victims, including the four-year-old victim, and that each of the children identified the defendant as having committed various acts of molestation. “Such evidence is sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)].” Clark v. State, 187 Ga. App. 232, 234 (3) (369 SE2d 550) (1988). See also Burgess v. State, 189 Ga. App. 790 (1) (377 SE2d 543) (1989).

Decided May 14, 1990.

Tony L. Axam, for appellant.

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Monique F. Kirby, Assistant District Attorneys, for appellee.

4. We have examined defendant’s final enumeration assigning error to the admission of evidence of similar acts of child molestation and find it to be without merit. “ ‘The sexual molestation of young children, regardless of sex or type of act, is (of) sufficient similarity to make the evidence admissible.’ Phelps v. State, 158 Ga. App. 219, 220 (2) (279 SE2d 513) [(1981)].” Keeler v. State, 181 Ga. App. 208, 209 (2) (351 SE2d 731) (1986).

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A0438.
    UNIVERSAL SECURITY INSURANCE COMPANY v. LOWERY et al. FORSYTH MILK HAULING COMPANY, INC. v. UNIVERSAL SECURITY INSURANCE COMPANY.
    A90A0439.
    (394 SE2d 416)
   Sognier, Judge.

William and Alice Lowery brought suit against Forsyth Milk Hauling Company (Forsyth) to recover damages incurred when their automobile was struck by a truck owned by Forsyth and driven by its employee, Carl Buddy Stafford. Forsyth’s insurance carrier, Universal Security Insurance Company (Universal), then sought a declaratory judgment to determine its liability. The trial court denied Universal’s motion for summary judgment, finding that although Stafford had been excluded from coverage by endorsement, he had been reinstated shortly before the accident. The trial court certified its ruling for immediate review, and we granted Universal’s interlocutory appeal. Forsyth cross appeals from the trial court’s ruling finding valid the endorsement originally excluding Stafford from coverage under the policy.

The policy in question was purchased by Forsyth through the Allen Lambert Insurance Agency. The record reveals that in May 1986, Jim Lambert, an independent agent and owner of that insurance agency, requested that Vernon E. Sanders, Jr., vice president of Forsyth, sign an endorsement excluding Stafford from coverage under the policy and that Sanders signed the endorsement on May 28, 1986. In his affidavit submitted in support of Universal’s motion for summary judgment, Lambert averred that this endorsement was then submitted to Universal “through normal channels,” became a part of the policy, and was never altered or changed. Stafford subsequently left his job at Forsyth in December 1986.

The record reveals further that in early February 1987, Stafford returned to Forsyth, and Sanders, Jr. then asked Lambert to add Stafford back to the policy. In his affidavit, Lambert testified that he informed Sanders, Jr. he would make the request, but had no authority to add Stafford back and had “no reason to believe that he would, in fact, be added to the policy.” Lambert averred that based on Sanders, Jr.’s request, he prepared a “Commercial Policy Change Request,” told Sanders, Jr. that it was “simply a ‘request,’ ” and sent the document to Universal through proper channels.

Dan Pisterzi, claims manager of Universal, swore in his affidavit that the request was not received in the Universal office or acted upon by anyone with the company as of the date of the accident.

Sanders, Jr. testified by affidavit submitted in opposition to Universal’s motion for summary judgment that Lambert “never told him at any time” either that he would request the addition but did not have the authority to add Stafford, or that he had no reason to believe that Stafford would be added back, and that Lambert never showed him the “Commercial Policy Change Request” or told him that document was merely a request.

Diane Grey, the bookkeeper for Forsyth, averred in her affidavit that Lambert had signed policy changes and endorsements as the authorized representative of Universal, as shown by copies of documents attached as exhibits to her affidavit, and that in the years 1986 and 1987 the “Commercial Policy Change Request” form had been used over fifty times as the exclusive method of making policy changes with no other documents having been necessary to effect such changes.

Vernon E. Sanders, Sr. testified by affidavit that he was the president of Forsyth and was the only person authorized to sign documents such as insurance policy endorsements on behalf of Forsyth.

1. Universal contends the trial court erred by denying its motion for summary judgment because Lambert was not its agent and had no authority to bind Universal to provide coverage on Stafford, and the company had taken no action on the request to add Stafford to the policy when the accident occurred. It is the rule in Georgia that “[independent insurance agents or brokers are generally considered the agent of the insured, not the insurer. [Cit.]” European Bakers v. Holman, 177 Ga. App. 172, 173-174 (2) (338 SE2d 702) (1985). This is, however, only a general rule, and sometimes the issue of agency is a jury question. Id. at 174. The evidence in this case is conflicting on several points: the question of agency; the issue of Lambert’s authority to bind Universal; and the issue whether Lambert informed Sanders, Jr. of the limits of his authority. Thus, we cannot agree with the trial court’s conclusion that, as a matter of law, Lambert acted as the agent of Universal in processing the change request. “ ‘The Summary Judgment Act does not authorize the trial court to sit as both judge and jury, weighing the evidence and deciding issues that are traditionally for the jury. (Cit.) The sole function of the court on a motion for summary judgment is, rather, to determine whether there exists a genuine issue of material fact. (Cits.) In the instant case it is clear that such issues exist.’ [Cit.]” Collins v. Newman Machine Co., 190 Ga. App. 879, 884 (380 SE2d 314) (1989). Accordingly, because material fact issues exist, we find that the result reached by the trial court was correct, if for the wrong reason, and we affirm its denial of summary judgment to Universal. See Auto-Owners Ins. Co. v. Barnes, 188 Ga. App. 439, 443 (4) (373 SE2d 217) (1988).

Decided May 14, 1990.

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Marvin D. Dikeman, for Universal.

Groover & Childs, Frank H. Childs, Jr., for Lowery.

2. In its cross appeal, Forsyth contends the trial court erred by finding that the May 1986 endorsement excepting Stafford from coverage under the policy was valid because the uncontroverted evidence established that Sanders, Jr. did not sign the endorsement for the company in a representative capacity, nor did he have the authority to do so, since only Sanders, Sr. had that authority. We need not address this contention, however, because even assuming the May 1986 endorsement was invalid, it is undisputed that Stafford was subsequently deleted from coverage under the policy at Forsyth’s instruction as a matter of standard procedure when he left the company’s employ in December 1986, and Stafford’s return to employment with Forsyth at the beginning of February 1987 prompted the request from Sanders, Jr. to add Stafford as a covered driver. Therefore, whether because of the May 28,1986 endorsement or because of the December 1986 request to drop Stafford, the trial court correctly found that Stafford had been specifically excluded from coverage at the time of the accident unless the February 2, 1987 request to add him back to the policy’s coverage had the effect of binding coverage.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.

Benson Ham, for Forsyth.


author: Birdsong, Judge.

text:
    A90A0591.
    ROSS v. THE STATE.
    (394 SE2d 418)
   Birdsong, Judge.

Appellant, Donald Eric Ross a/k/a Donald Eric Adams, appeals his sentence and conviction of rape and aggravated sodomy and the order of the trial judge denying his motion for new trial.

The alleged victim testified that she was raped and sodomized, by force and without her consent, by appellant. Appellant testified that the alleged victim had consented to engaging in sexual intercourse with him.

Following trial, on July 13, 1989, appellant was appointed a new counsel, hereinafter called appellate defense counsel, who immediately filed a motion for new trial asserting only the general grounds and that the trial court erred in failing to sever the offenses. The record does not contain any amended motions for new trial; however, it does reflect that on July 12, 1989, the trial judge issued a show cause order and supersedeas based on the motion for new trial. Sentence was formally entered against appellant on June 19, 1989. A hearing ultimately was held upon the motion for new trial, although no hearing transcript pertaining thereto has accompanied this record. By order filed November 16,1989, the trial court denied appellant’s motion for new trial. Held:

1. Appellant asserts that there was insufficient evidence to convict him of rape and aggravated sodomy. On appeal the evidence must be viewed in the light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Smith v. State, 192 Ga. App. 768 (1) (386 SE2d 530); Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849).

a. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

b. Regarding the offense of aggravated sodomy, we find that a fatal variance exists between the allegata and the probata. The indictment avers that appellant committed aggravated sodomy in one manner and in one manner only, that is, “by putting his mouth to the sex organ of [the alleged victim]. . . .’’At trial both the victim and appellant denied that appellant committed sodomy upon the victim in this manner. Rather, the victim testified that appellant forced her to perform oral sex upon him, and that he thereafter committed an act of anal intercourse upon her. The jury immediately noticed this variance, and a colloquy occurred between the jury foreman and trial judge, which in our view, served only to further compound confusion.

This case is distinguishable from those cases in which an indictment avers several different manners in which the offense was committed, and there exists evidence sufficient to support a finding of guilt as to one of these averred manners (e.g., Lubiano v. State, 192 Ga. App. 272 (1) (a) (384 SE2d 410)); and, those cases where an appellant was an aider and abettor to the crime as averred (e.g., Carter v. State, 168 Ga. App. 177 (3) (308 SE2d 438)). In this case, appellant was the only averred perpetrator and only one manner of crime commission was averred.

While an unnecessary description of an unnecessary fact averred in an indictment need not be proved, in criminal law even an unnecessarily minute description of a necessary fact must be proved as charged. See generally Kelly v. State, 188 Ga. App. 362 (2) (373 SE2d 63), citing Bell v. State, 227 Ga. 800, 802 (1) (183 SE2d 357). “ ‘If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. . . . [N]o averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance. (Cits.) ... To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance. . . . (Cits.)’ ” (Emphasis supplied.) Roberson v. State, 187 Ga. App. 485, 487 (370 SE2d 661); Accord Fulford v. State, 50 Ga. 591, 593; Hamby v. State, 76 Ga. App. 549, 554 (2) (46 SE2d 615); Ga. Crim. Trial Prac., § 20-14 (1989 ed.), and cases therein cited. Accordingly, we find that there exists insufficient evidence, within the meaning of Jackson v. Virginia, supra, from which a rational trier of fact could conclude that appellant committed the offense of aggravated sodomy as averred.

2. This court cannot consider factual representations contained in appellate briefs when such evidence does not appear on the record (Hudson v. State, 185 Ga. App. 508 (1) (364 SE2d 635)), and a brief or an attachment thereto cannot be used in lieu of the record or transcript for adding evidence to the record (Williams v. State, 193 Ga. App. 677, 678 (388 SE2d 893)).

3. Appellant has made two separate enumerations of error based on the grounds of ineffective assistance of his trial defense counsel. Subsequent to trial, a new counsel entered appearance and was duly appointed as appellant’s counsel. New counsel immediately filed a timely motion for new trial based on the general grounds and an additional ground that the trial court erred in failing to sever the offenses. The motion for new trial contained no assertion whatsoever of ineffectiveness of trial defense counsel, and the record reflects that new counsel did not thereafter amend his motion for new trial to add such an issue. Subsequently, a hearing apparently was held on appellant’s motion for new trial, but we have not been provided with a transcript of this hearing. The trial court subsequently denied appellant’s motion for new trial. It thus appears from the state of the record before us that, after obtaining the appearance and appointment of new counsel in his behalf, appellant failed to file timely either a motion for new trial or an amended motion for new trial asserting ineffectiveness of trial defense counsel. Accordingly, all issues of inadequacy of trial defense counsel are waived, and we will not review that question on appeal. Washington v. State, 193 Ga. App. 823 (389 SE2d 407); accord Dawson v. State, 258 Ga. 380 (369 SE2d 897); Smith v. State, 255 Ga. 654 (341 SE2d 5). In this regard, appellant in essence asserts in his briefs that these challenges were heard at the earliest practicable moment, i.e., during the hearing conducted on his motion for new trial. These bare assertions in appellant’s brief cannot be considered on appellate review. See Division 2 above. Moreover, we note that appellant has not filed any pauper’s affidavit or affidavit of indigency with this court. Accordingly, if he desired that we consider the evidence adduced at the hearing on his new trial motion, he should have made suitable arrangement to insure that it was transcribed and forwarded to this court. It is a well-established appellate rule that “ ‘[t]he burden is on the appellant to show error by the record, and when a portion of the evidence . . . bearing upon the issue raised by the enumeration of error, is not brought up so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result.’ ” Brown v. State, 146 Ga. App. 286 (2) (246 SE2d 370).

4. Appellant contends that “[a]ppellant’s trial [defense] counsel failed to make the State prove the proper chain of custody for introduction of the rape kit used in examining the alleged victim,” and that he was denied a fair trial thereby. To the extent that this enumeration could be construed to assert an ineffective assistance of counsel claim, we will not consider it. See Division 3 above. Moreover, the enumeration of error does not include an assertion of ineffective assistance of counsel and an enumeration of error cannot be enlarged by brief on appeal to cover issues not contained in the original enumeration. Vinson v. State, 190 Ga. App. 676 (3) (379 SE2d 792).

Trial defense counsel initially objected to introduction of the rape kit and certain other State exhibits on the grounds that a proper chain of custody had not been shown by the State, after the testimony of a police detective, trial defense counsel withdrew his objection and the evidence was admitted. As no viable objection remains as to the introduction into evidence of the rape kit, there exists nothing for us to review concerning its admission into evidence. See generally Ray v. State, 187 Ga. App. 451, 452 (370 SE2d 629).

Moreover, assuming arguendo error of constitutional magnitude had occurred as asserted in appellant’s brief (denial of a substantive due process fair trial right), we are satisfied beyond a reasonable doubt that such error would be harmless. Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38). In this regard, for reasons stated in Division 1 (a) above, we must reverse appellant’s conviction of aggravated sodomy. Regarding the remaining rape charge, appellant made admissions in judicio that he had twice engaged in sexual intercourse with the victim and that the victim had bled, had gotten her blood upon appellant, and had used appellant’s underclothing to wipe blood off herself. In view of appellant’s in-court admissions and the overwhelming evidence of his guilt of rape, we are also satisfied that no fair risk existed that he was deprived of his right of fair trial by the introduction of this evidence. “Justice is not served by reversing criminal convictions when error is harmless — an accused is entitled only to a fair trial, not a perfect one.” Butts v. State, 193 Ga. App. 824, 828 (389 SE2d 395).

5. Appellant asserts that “[a]ppellant’s trial counsel failed to properly introduce into evidence records of the [a]ppellant’s physical condition which would have shown the jury that [a]ppellant had a severely damaged right arm.” Specifically appellant claimed that if the medical records had been properly introduced, the jury would have learned that appellant had suffered paralysis to his right side in 1983; that he had undergone physical therapy, and that he has limited use of his right arm.

At the onset for the same reasons as stated in Division 4 above, we will not consider this enumeration as raising any appellate issue of ineffective assistance of counsel on appeal. See Divisions 3 and 4 above; Vinson, supra.

Moreover, this enumeration does not contain any assertion that the trial judge erred in failing to admit any physical therapy medical records pertaining to appellant. Accordingly, this issue also is not before us on appeal. Vinson, supra. An enumeration of error cannot be enlarged to include other issues not made therein. Reese v. State, 139 Ga. App. 630 (3) (229 SE2d 111).

Assuming, without deciding, that the trial defense erred in failing to present another witness to lay a further foundation for admission of the medical records as business records, we find that such error, even if rising to the level of constitutional magnitude as asserted by appellant, was harmless beyond a reasonable doubt. Palmer, supra. The evidence of appellant’s guilt was overwhelming. In addition to the testimony of the victim and the corroborating medical evidence and photographs of the victim, appellant testified in his own behalf and made numerous admissions in judicio. Among those admissions were that he had engaged twice in sexual intercourse with the victim, although he claimed it was consensual on her part; that the victim was bleeding; and, that he had penetrated the victim’s rectum with his penis, although he contemporaneously asserted that such penetration was accidental and later attempted to recant the admission in its entirety.

Decided May 14, 1990.

Arthur A. Mendenhall, Jr., for appellant.

We also note that the record is replete with evidence presented to the jury regarding the physical limitations suffered by appellant as a result of a prior injury. A physical therapist for the Division of Rehabilitative Services in Columbus was allowed to testify as to how appellant was injured; that appellant was handicapped as a result; that the medical records indicated the injury resulted in paralysis to appellant’s right side; and that appellant is not completely paralyzed, but has limited use of his right hand and can move his arm with limitations. This testimony was presented in the presence of the jury, and neither was it stricken from the record nor was the jury instructed to disregard it. Appellant’s sister testified that appellant does not have any use of his right hand. An acquaintance of appellant testified that appellant walks with a limp and that he carries his arm as though it were paralyzed. Appellant testified, denying the rape, and asserted that he had arm spasms at the alleged crime scene. Inherent in appellant’s testimony was the claim that he could not have committed a rape in the manner contended by the victim. Appellant also testified that, as a result of his prior injury, he had “sustained a paralysis in [his] right arm, [his] right hand, [his] right leg, [his] right foot”; and, that his “strength was taken away”; he no longer has manual dexterity in both hands; that his “equilibrium was . . . shot”; and that he receives Social Security benefits for disability.

In view of the posture of the record in this case, we find this enumeration of error is without merit, and that assuming without deciding error occurred, it was harmless.

For the reason stated in Division 1 above, the conviction for aggravated sodomy must be reversed, and appellant resentenced; however, appellant’s conviction of rape is affirmed.

Judgment of conviction of rape affirmed; judgment of conviction of aggravated sodomy reversed; sentence reversed and case remanded with direction.

Banke, P. J., and Cooper, J., concur.

Douglas C. Pullen, District Attorney, James C. Bernard, Assistant District Attorney, for appellee.


text:
    A90A0632.
    HOOPER v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.
    (394 SE2d 798)
   Beasley, Judge.

The trial court dismissed Hooper’s appeal after concluding that there was unreasonable and inexcusable delay in transmitting the record for appeal caused by Hooper’s failure to pay costs, file a pauper’s affidavit, and timely request a period of extension. The court had granted summary judgment to defendant telephone company in Hooper’s suit for personal injury and loss of consortium from his use of defective telephone equipment.

Summary judgment and dismissal were granted on February 21, 1989. Hooper filed his notice of appeal from the judgment on March 1. There was no transcript of the summary judgment hearing and the clerk mailed Hooper’s counsel a bill for preparation of the record for transmittal to this Court on March 16. Counsel received it on March 19, a Sunday. More than a month later, on April 24, Hooper moved to extend the time for payment of costs, asserting an inability to pay and that his estranged wife had agreed to make the payment. The motion did not include any supporting affidavits or request to proceed in forma pauperis.

On May 8, Southern Bell moved to dismiss the appeal for failure to pay costs. Hooper paid on May 12 and responded to the motion to dismiss on June 15.

1. Hooper contends that the court erred in determining that his eventual payment of costs failed to satisfy the legal requirements and prevent dismissal. He maintains that his notice of appeal, motion for extension of time, and payment of costs acted as a supersedeas removing the trial court’s jurisdiction and authority to dismiss the appeal.

An appeal must be decided on the record sent up from the lower court. Fahrig v. Garrett, 224 Ga. 817, 818 (2) (165 SE2d 126) (1968), modified in part on other grounds, Southeastern Plumbing &c. Co. v. Lee, 232 Ga. 626, 630 (208 SE2d 449) (1974). After an appellant has filed a notice of appeal, his duty as to the record is to pay the costs. See Long v. City of Midway, 251 Ga. 364 (306 SE2d 639) (1983). The trial court may order an appeal dismissed where there has been unreasonable delay in the transmission of the record to the appellate court and the delay was inexcusable and caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence. However, no appeal shall be dismissed for failure to pay costs if the costs are paid within twenty days of appellant’s receipt of notice of the amount of costs. OCGA § 5-6-48 (c).

The trial court does not lose complete jurisdiction in a case by the mere filing of a notice of appeal. See, e.g., Allied Productions v. Peterson, 233 Ga. 266, 267 (211 SE2d 123) (1974). The plain language and import of OCGA § 5-6-48 (c) is that the filing of the notice of appeal does not divest the trial court of authority to consider dismissal of an appeal. Otherwise the statutory provision for dismissal would be meaningless. Moreover, “[i]n a civil action the filing of a notice of appeal does not serve as a supersedeas until all costs in the trial court have been paid.” Chappelaer v. Gen. GMC Trucks, 130 Ga. App. 664 (hn. 1) (204 SE2d 326) (1974); OCGA § 5-6-46 (a).

Likewise appellant’s unsupported request for a time extension did not deprive the trial court of its dismissal authority. The granting of such an extension is within the court’s discretion. OCGA § 5-6-39 (a). Furthermore, “[a]ny application to any court, justice, or judge for an extension must be made before expiration of the period for filing as originally prescribed or as extended by a permissible previous order.” OCGA § 5-6-39 (d). Inasmuch as no transcript was involved, compare OCGA § 5-6-42, Hooper under OCGA § 5-6-48 (c) had a period of twenty business days from the time he received his bill of costs in which to pay the amount and not subject his appeal to dismissal for unreasonable and unexcusable delay. Appellant’s request for an extension on the basis of inability to pay costs, filed a month after receiving the bill, was untimely.

Neither did the belated payment of costs eliminate the court’s authority to determine the reasonableness and excusability of the payment delay, in ruling on dismissal.

2. The trial court did not err in its substantive determination that the delay was both unreasonable and inexcusable. It has been suggested that a delay of over thirty days is prima facie unreasonable and inexcusable. Continental Inv. Corp. v. Cherry, 124 Ga. App. 863, 865 (1) (186 SE2d 301) (1971). See also Jones v. State, 123 Ga. App. 672 (182 SE2d 190) (1971). Hooper did not pay the costs until seventy-two days after the filing of the notice of appeal and fifty-four days after receipt of the bill for costs. No excuse for the delay was offered other than Hooper’s bare allegations of inability to pay and promise of payment by someone else. Compare Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576) (1990) involving the untimely filing of a transcript through no fault of appellant. See Gay v. City of Rome, 157 Ga. App. 368, 369 (1) (a) (277 SE2d 741) (1981).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

Decided May 14, 1990.

Joab L. Kunin, for appellant.

Glass, McCullough, Sherrill & Harrold, R. Philip Shinall III, for appellee.


text:
    A90A0638.
    SIMS v. THE STATE.
    (394 SE2d 422)
   Birdsong, Judge.

Gregory Sims appeals his conviction for armed robbery of the proprietor of a pool room. He was identified by the victim from a photo lineup before trial and positively identified at trial. The victim testified he knew Sims’ co-defendant, Lewis, but did not know Sims, and that while the two men were playing pool in his establishment, Sims hit him in the head with a pool cue and knocked him on the floor. The victim also testified: “The day that — When I wound up on my back and he was sitting astraddle of my chest along here with both hands at my throat, I looked that boy good in the face. I think if I met him downtown New York I would recognize him.” The victim suffered two gashes in the back of his head, stomach pain and injury, and coughed up blood from the strangling. He testified he had known the co-defendant, Dwaine Lewis, for a number of years, that Lewis had done nothing and made no move to help him when appellant assaulted him. The victim testified the incident made him “pretty upset” with Dwaine Lewis who had previously been a friend, and that he had good opportunity to view the other person (appellant) as he was being sat upon and choked. When the victim identified Sims in the photo lineup, Sims did not have a moustache as he did at trial. The robbers took more than $2,500 while the victim was unconscious.

On appeal, Sims enumerates three errors below. Held:

1. Sims contends the trial court erred in denying his motion for severance of trial. We find no error. Under the facts of this case just stated, we find no possibility that the evidence implicating co-defendant Lewis wrongfully or improperly implicated appellant, or that the jury could have been confused as to the relative participation of both defendants. Lewis admitted he was in the victim’s place of business but did not personally attack the victim, and he identified Sims as the one who made the assault. Sims simply maintained an alibi. The co-defendants did not have antagonistic defenses. We do not find merit in appellant’s argument that the evidence implicating Lewis “spilled over” onto him; the victim was exceedingly clear in identifying Sims and Lewis separately, in selecting Sims’ photo from a lineup, and in testifying that appellant Sims, and not Lewis, was the one who physically assaulted him. The jury could not logically confuse the roles played by the two co-defendants or, merely by finding Lewis guilty of participation, inappropriately conclude appellant Sims committed the physical assault. Under the standards of OCGA § 17-8-4, and see Kelley v. State, 248 Ga. 133 (281 SE2d 589), and Eady v. State, 182 Ga. App. 293 (355 SE2d 778), we find the trial court did not abuse its discretion in deciding whether to sever trials (Mapp v. State, 258 Ga. 273 (368 SE2d 511)) and appellant has not borne his burden to show reversible error by denial of due process. See Cain v. State, 235 Ga. 128, 129 (218 SE2d 856).

2. The evidence was not, as appellant contends, insufficient to support the verdict. There were distinct and consistent identifications of Sims by the victim from a photo lineup and at trial. The victim had had a relatively long time to stare closely into the face of the man who sat on top of him and strangled him with a rope and with his hands, thus reducing greatly any chance for misidentification. Further, the co-defendant identified Sims as the attacker. The evidence is sufficient to enable any rational trier of fact to find appellant guilty of armed robbery beyond a reasonable doubt, under the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

3. The trial court did not err in denying a new trial on the claimed grounds of newly discovered evidence.

This newly discovered evidence consists of a letter purportedly written by Dwaine Lewis some four months after he was convicted, tending vaguely to absolve Sims of guilt and to recant his identification of Sims as the other robber. There is no authentication of this letter. There is, however, a sworn affidavit of a former jail mate of Lewis, averring that Lewis told him appellant Sims was not the man in the victim’s place of business with him.

This “evidence” does not warrant a new trial. The affidavit of the jail mate is inadmissible hearsay (Herrin v. State, 230 Ga. 476, 478 (197 SE2d 734)), and the letter alleged to be from Lewis is not authenticated as being his, nor is it accompanied by affidavit of Lewis. See Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) concerning the criteria for granting new trial upon newly discovered evidence. Moreover, the letter evidence, even if it were proven to be written by Lewis, does not even barely raise the possibility of a different verdict, for it would serve at best to discredit and impeach Lewis and make this “new” evidence untrustworthy. Timberlake, supra. Since Lewis had already been convicted of the crime, Lewis’ recantation of his evidence does not justify a new trial. Richey v. State, 132 Ga. App. 188 (207 SE2d 672).

Finally, and in any case, the victim’s identification of Sims, both before and during trial, was so sufficiently clear and strong as to be

Decided May 14, 1990

Allen M. Trapp, Jr., for appellant.

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, George F. Hutchinson III, Assistant District Attorneys, for appellee.

Finally, and in any case, the victim’s identification of Sims, both before and during trial, was so sufficiently clear and strong as to be unlikely to be discredited by the co-defendants’ post-trial attempt to say Sims was not the co-actor. Thus, it probably would not produce a different verdict. Timberlake, supra. Appellant was not entitled to a grant of new trial merely to obtain authentication of the letter, for that was something to be accomplished by him to authorize a new trial in the first place.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1021.
    DINGLER v. THE STATE.
    (394 SE2d 596)
   Deen, Presiding Judge.

The appellant, Larry Dingier, was convicted of theft by shoplifting and two counts of simple battery.

On May 22, 1989, a security guard for a Macy’s department store at Gwinnett Place Mall observed Dingier conceal several shirts in a shopping bag and leave the store without paying for the merchandise. She followed Dingier, who bolted in the parking lot when he realized the guard was following him. The security guard caught up with Dingier, but got punched in the jaw in the process. The guard’s supervisor, however, showed up and secured the arrest, although he, too, was struck by Dingier. The shoplifting bag contained 14 shirts with a value in excess of $300. Held:

1. Dingier contends that the trial court erred in admitting a certified copy of his 1985 conviction for theft by shoplifting 17 shirts from a Davison’s Department store, which was a division of Macy’s. In order for evidence of similar offenses to be admissible, it must be shown that the defendant was the perpetrator of the similar offense, and there must be sufficient similarity or connection between the similar crime and the offense charged that proof of the former tends to prove the latter. Hattaway v. State, 191 Ga. App. 812 (383 SE2d 140) (1989); Coggins v. State, 168 Ga. App. 12 (308 SE2d 36) (1983). That criterion was met in this case, and the trial court thus did nor err in admitting the evidence. Further, because that evidence was admissible, there is no merit to Dingler’s contention that the prosecutor’s reference to it should have prompted the trial court to give curative instructions, rebuke the prosecutor, or declare a mistrial.

Decided May 14, 1990.

G. Wayne Lancaster, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

2. Dingier contends that the trial court’s jury charge on flight impermissibly placed upon him a burden of explanation. The specific charge was as follows: “If you find from the evidence in this case that there was flight on the part of the defendant you may consider whether or not you will draw any inference of guilt from flight [or] similar acts if any such have been proven. Flight or similar acts if any is subject to explanation. You decide the weight to be given to such evidence, if any, or whether to draw any inference of a consciousness of guilt or not.” The Supreme Court has already found essentially the same jury charge on flight not to be unconstitutionally burden-shifting. Terrell v. State, 258 Ga. 722 (2) (373 SE2d 751) (1988).

3. The evidence authorized a rational trier of fact to find Dingier guilty beyond a reasonable doubt as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope, J., concurs. Beasley, J., concurs in Divisions 1 and 3 and in the judgment.