author: Carley, Presiding Judge.

text:
    A91A1790.
    NORMAN et al. v. FARM FANS, INC. et al.
    (416 SE2d 374)
   Carley, Presiding Judge.

Appellant-plaintiffs brought suit and, in their answers, appelleedefendants raised, among their other defenses, res judicata. Subsequently, appellees moved for summary judgment based upon their res judicata defense. The trial court granted summary judgment in appellees’ favor and appellants appeal from that order of the trial court.

1. The facts, insofar as they are relevant, are as follows: Appellees Sindlinger and Nichols each owned a one-half interest in appellee Farm Fans, Inc. and a one-third interest in appellee Southern Agri. Appellants not. only owned the remaining one-third interest in Southern Agri, they were also corporate officers and employees. In addition, appellants owned their own grain business.

The res judicata defense asserted in the instant case was based, in part, upon a previous lawsuit that Southern Agri had brought against appellants. In that previous action, Southern Agri had alleged a breach of appellants’ fiduciary duties and appellants had counterclaimed against Southern Agri for much of the same relief sought by them in the instant action. The final judgment in this previous action had not been appealed.

The claims that are asserted by appellants against Southern Agri in the instant action which concern the same subject matter as the claims that were asserted by them in their previous counterclaim against Southern Agri would be barred by res judicata. “[0]ne must assert all claims for relief concerning the same subject matter in one lawsuit and any claims for relief concerning that same subject matter which are not raised will be res judicata pursuant to OCGA § 9-12-40.” (Emphasis in original.) Lawson v. Watkins, 261 Ga. 147, 149 (2) (401 SE2d 719) (1991). Most of the claims that appellants assert in their instant action are identical to those that they asserted in their previous counterclaim. Those claims relate to appellants’ employment with Southern Agri and to their grain business. Obviously, those identical claims are barred by res judicata. Such of appellants’ instant claims as are not otherwise identical to those asserted in their previous counterclaim nevertheless clearly concern the same subject matter of their employment and their grain business. It follows that the trial court correctly granted summary judgment in favor of Southern Agri. Brinson v. First Am. Bank of Ga., 200 Ga. App. 552, 555 (2) (409 SE2d 50) (1991); Winters v. Pund, 179 Ga. App. 349, 353 (346 SE2d 124) (1986).

A contrary result is not mandated by the fact that, in the prior action, although appellants had attempted to amend their counterclaim to allege all the claims that they assert in the instant action, that attempt had been disallowed as untimely. All we hold is that appellant could and should have raised all their claims relating to the subject matter of their employment and grain business in their prior counterclaim against Southern Agri. Whether appellants were erroneously precluded from doing so through amendment of their prior counterclaim is an issue which could and should have been raised by an appeal from the judgment entered in the former action. Halkirk Cos. Corp. v. Dirt Busters, 190 Ga. App. 460, 461 (2) (379 SE2d 173) (1989). Regardless of the validity of the unappealed ruling that appellants’ attempt to amend their prior counterclaim was not timely, it is otherwise clear that their attempt to assert those claims in the instant action is barred by res judicata.

Decided February 26, 1992.

Kirbo & McCalley, Thomas L. Kirbo III, Jon V. Forehand, for appellants.

Whelchel, Whelchel & Carlton, Hoyt H. Whelchel, Jr., Perry, Walters & Lippitt, Jesse W. Walters, for appellees.

2. The claims that appellants could and should have asserted in their prior counterclaim are such that, pursuant to OCGA § 9-11-13 (h), the presence of Farm Fans, Sindlinger and Nichols was required for the granting of complete relief in the determination of that prior counterclaim. Usher v. Johnson, 157 Ga. App. 420, 423 (278 SE2d 70) (1981); Stein v. Burgamy, 150 Ga. App. 860 (3) (258 SE2d 684) (1979); Co-op Mtg. &c. Assoc. v. Pendley, 134 Ga. App. 236 (1) (214 SE2d 572) (1975). Compare McCabe v. Lundell, 199 Ga. App. 639, 640 (2) (405 SE2d 693) (1991). Accordingly, the trial court likewise correctly granted summary judgment in their favor based upon the res judicata defense. Usher v. Johnson, supra at 423. See also Winters v. Pund, supra at 354.

Judgments affirmed.

Sognier, C. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A91A1924.
    JONES et al. v. LIVINGSTON et al.
    (416 SE2d 142)
   Pope, Judge.

This appeal stems from the death of 17-year-old Patrick Livingston. Patrick was killed from injuries sustained in a one-vehicle accident. At the time of the accident, defendant William L. (“Bill”) Jones was driving the vehicle. The evidence presented at trial showed that Patrick Livingston and Bill Jones had been close friends and classmates for several years. At the time of the automobile accident, both young men were seniors in high school.

Another friend of theirs from high school invited several of his classmates, including Bill and Patrick, to his family’s cabin for an informal gathering. Although no refreshments were served at the cabin, most invitees brought beer. Bill picked Patrick up at approximately 11:00 a.m. on the day of the accident and the two purchased a 12-pack of beer, had lunch, and drove around in the vehicle consuming the beer. Bill and Patrick arrived at the cabin between 2:00-3:00 p.m. They stayed and visited with their friends for approximately two hours. When they were ready to leave the party, a young woman at the cabin asked Bill if he would drive her home. Shortly thereafter, the three decided to purchase more beer and drink it at property owned by Bill’s family. At approximately 5:00 p.m., as they were travelling to Bill’s parents’ property, the automobile veered from the roadway. Apparently, as Bill attempted to steer the vehicle back on the road, he lost control and the vehicle rolled three times. All occupants were thrown from the vehicle, but only Patrick suffered fatal injuries. Patrick’s parents, Alfred and Patsy Livingston, brought this wrongful death action against Bill and Bill’s father, Carey Jones. A jury awarded the Livingstons $1,250,000. Defendants appeal from that judgment and the trial court’s denial of their motion for new trial.

1. Defendants argue that the trial court committed reversible error in refusing to admit into evidence the testimony of Bruce Jones, brother of Bill Jones and son of Carey Jones. The trial of this case began on August 20, 1990. On August 16, 1990, defendants’ attorney supplemented defendants’ answers to a previous interrogatory submitted by plaintiff to state that Bruce Jones would testify at trial that on the day of the accident Patrick came into the Jones’ home with a beer, and Bruce told Patrick not to drink beer in their home because his parents did not allow alcohol in their home. Patrick told Bruce he should not worry about it, and Bruce should “come on and go with us and get drunk.” Defendants argue that this testimony should have been admitted to show that not only did Patrick intend to get drunk but he knew that Bill was going to get drunk as well.

Generally the trial court has discretion concerning whether to allow a party to call at trial a witness who is not named in the pretrial order. Nease v. Buelvas, 198 Ga. App. 302, 303 (401 SE2d 320) (1991). Apparently no pretrial order was filed in this case. However, it would still be within the trial court’s discretion to decide whether a witness who was identified approximately four days before trial should testify.

We find that the trial court did not abuse its discretion by ruling that Bruce Jones’ testimony was cumulative of other evidence presented. Sufficient evidence was presented before the defendants attempted to call Bruce Jones from which the jury could infer Patrick’s intent on the day of the accident was to become intoxicated and Patrick knew Bill would probably become intoxicated as well. Bill testified he shared a 12-pack of beer with Patrick. Witnesses testified that Patrick and Bill were seen drinking as early as noon. Numerous invitees to the gathering at the cabin testified that both Patrick and Bill were drinking while at the cabin.

Contrary to defendants’ assertions otherwise, this issue is not controlled by our decision in Booth v. Johnson, 198 Ga. App. 569 (402 SE2d 523) (1991). In Booth, in a pretrial order which was signed by both parties and approved by the trial judge, defendant reserved the right to call additional witnesses on the condition that he provide their names and addresses to opposing counsel at least 72 hours before trial. The defendant attempted to call a witness he had identified to opposing counsel at least 72 hours before trial, but the trial court refused to let the witness testify. We held that the trial court abused its discretion because by approving the pretrial order, it had given the defendant a preapproved right to call the witness. Id. at (1). Defendants did not preserve such a right to present witnesses in this case.

Defendants further argue that if they had been allowed to present Bruce Jones’ testimony, it would have been clearer that our decision in Crudup v. Post Properties, 195 Ga. App. 203 (393 SE2d 9) (1990) governs this case, and that defendants were entitled to a directed verdict. In Crudup, both Crudup and his friend Rhodes attended a pool party given lay the owners of their apartment complex. Both were obviously intoxicated when they left the party, and Rhodes suggested that Crudup ride on the hood of Rhodes’ car to Rhodes’ apartment. When Rhodes made a turn, Crudup fell from the car and sustained fatal head injuries. In reaching our conclusion that Crudup’s decision to assume a position of imminent danger on the hood of the car rather than occupy an available passenger seat inside the car barred recovery for his death as a matter of law, we stated that “cases which concern the right of a passenger to recover for injuries inflicted by an intoxicated driver are also factually distinguishable and have no bearing on the resolution of this appeal, because no injury to a ‘passenger’ is at issue here.” Id. at 205. It is undisputed that Patrick was a passenger in Bill’s vehicle. Accordingly, our decision in Crudup has no bearing on the resolution of this appeal.

We note that a passenger’s knowledge that a driver is intoxicated does not, as a matter of law, impute to the passenger knowledge that the driver is so impaired that he cannot drive safely. For that reason, mere knowledge by a passenger that the driver is intoxicated does not preclude recovery from the driver. Id. at 207 (McMurray, J., dissenting); Petroleum Carrier Corp. v. Jones, 127 Ga. App. 676 (2) (194 SE2d 670) (1972).

2. Defendants contend that the trial court committed reversible error in admitting portions of the deposition testimony of the emergency medical technician (“EMT”). The admission of irrelevant evidence is only grounds for a new trial when the evidence admitted could have been harmful to the complaining party. Taintor v. Rogers, 197 Ga. 872 (2) (30 SE2d 892) (1944). “ ‘(E)ven though our rule favors the admission of relevant evidence, the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.’ [Cit.]” Barnwell v. State, 197 Ga. App. 116, 118 (397 SE2d 717) (1990).

Defendants raised an irrelevancy objection to the EMT’s testimony that there was blood and vomitus in the ambulance that transported Patrick which the EMT had to remove before the ambulance could be used again. Patrick died en route to the hospital. The EMT testified without objection that before Patrick died, he tried to intubate Patrick and “when I did we had blood and vomitus coming out.” He also testified that Patrick had a severe head injury and had lost a lot of blood. A witness to the accident testified that Patrick was ejected from the vehicle through the windshield. A juror would naturally presume from this testimony that there was blood and vomitus in the ambulance which had to be removed. Although we agree that the EMT’s testimony about cleaning the ambulance was irrelevant, in light of the other evidence we do not find that admitting this testimony constituted harmful error.

3. Defendants assert that the trial court committed reversible error by refusing to charge the jury that failure to use a seat belt could be considered evidence of comparative negligence. Instead, the trial court gave a general comparative negligence charge and allowed the defendants to argue in their closing argument that Patrick’s failure to wear a seat belt amounted to negligence.

“A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” (Citations and punctuation omitted.) F. A. F. Motor Cars v. Childers, 181 Ga. App. 821, 822 (3) (a) (354 SE2d 6) (1987). While defendants made a motion to supplement the record to reflect that they requested the trial court to give “seat belt charges,” and the trial court granted their request and supplemented the record to show defendants requested charges that “dealt with the use of seat belts in the comparative negligence of the decedent based upon his failure to wear seat belts.” This supplementation to the record is insufficient for us to determine if the trial court erred in refusing the requested charges because the requested charges were not made part of the record. Accordingly, we cannot address the merits of this enumeration of error. See Stephens v. State, 201 Ga. App. 737 (2) (412 SE2d 568) (1991).

4. Defendants assert the trial court committed reversible error in refusing to allow their accident reconstruction expert to testify as to the effect of Patrick’s failure to use his seat belt. A review of the record reveals that defendants did not give plaintiffs prior notice that this expert would testify concerning the use of seat belts. OCGA § 9-11-26 (b) (4) (A) (i) allows a party to require the opposing party to identify all expert witnesses the opposing party plans to call at trial and to state the subject matter about which the expert will testify, the opinions the expert will render, and a summary of the grounds for each opinion. The trial court did not abuse its discretion by refusing to allow defendants’ expert to testify concerning a subject matter not revealed to plaintiffs.

Within this same enumeration of error, defendants argue that the trial court committed reversible error by not allowing them to make an offer of proof regarding the testimony of both Bruce Jones (see Division 1, supra) and the testimony of their expert regarding the use of seat belts. In Hendrix v. Byers Bldg. Supply, 167 Ga. App. 878, 880 (307 SE2d 759) (1983), this court held “[wjhile it is a well settled rule that in order to preserve a ground of objection relating to the exclusion of oral testimony it is necessary for the complaining party to show what he expects to prove and that the evidence is material, relevant and beneficial [cit.], it is equally true that where an offer of proof is necessary it is error for the trial judge to deny counsel an opportunity to state what he proposes to prove by the evidence offered. [Cit.]” Defendants contend that our holding in Hendrix entitles the party seeking to admit testimony to call the witness outside the presence of the jury and allow the witness to state what he would testify about if the court allowed his testimony. Hendrix simply allows the complaining party to state what he expects to prove with the testimony in question, and why it should be allowed. A review of the record reveals that defendants’ counsel adequately stated what he hoped to show with each witness’ testimony and wby it should be allowed. This enumeration of error is without merit.

5. Defendants assert that the trial court committed revesible error by admitting into evidence 17 photographs of Patrick, certain writings by Patrick, an audiotape of Patrick singing, and a videotape of Patrick. We initially note that several of the photographs about which defendants now complain were admitted into evidence without objection from defendants. Defendants did object, however, to most of the photographs depicting Patrick’s relationship with his family or his interest in playing baseball. As this court recently noted in Consolidated Freightways Corp. v. Futrell, 201 Ga. App. 233 (3) (410 SE2d 751) (1991), there is an intangible element of the full value of the life of a deceased. There was evidence from which the jury could find that Patrick’s family and baseball were both important aspects of his life, therefore, evidence relating to those issues was relevant in helping the jury determine the value of Patrick’s life from the standpoint of the deceased. The same is true of Patrick’s religious activities. Id. Furthermore, the audiotape which contained a hymn sung by Patrick, evidenced Patrick’s singing ability, another aspect of Patrick’s life which the jury could properly consider in deciding the value of the intangible aspect of his life. We also note that while the videotape was an advertisement for his church, the trial court only allowed a portion of the tape shown so that the jury was not aware that it was an advertisement. The introduction of a recent videotape of the deceased is no more prejudicial than a recent photograph, which defendants concede is admissible evidence in a wrongful death action.

Decided February 26, 1992.

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Jonathan M. Engram, Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, for appellants.

William J. Mason, Brace W. Luquire, for appellees.

6. Finally, defendants argue that the trial court erred by placing too much emphasis on the charges on the measure of damages by charging the jury on damages three times. A review of the record reveals that what defendants characterize as the first two charges on damages is actually one charge, as there was no break between the “two charges.” Furthermore, the final time damages was mentioned was during the trial court’s summary of what constitutes the full value of a deceased’s life. Each charge complemented the other and covered areas of law not otherwise charged.

Moreover, the record also reflects that the jury had two questions for the court during their deliberations: one as to the measure of damages, and the other as to comparative negligence. With regard to the former, the trial judge responded that the jury should try to remember his charge on the measure of damages and stated that he did not want to unduly emphasize any particular aspect of the charge. “Mere repetition of a principle of law is not reversible error unless it appears, from the charge as a whole, that there is such undue emphasis as to constitute an unfair statement of law. [Cit.]” Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 155-156 (342 SE2d 352) (1986). After reviewing the charge as a whole, we are satisfied that there was not such undue emphasis on the measure of damages charge as to constitute an unfair statement of law.

Judgment affirmed.

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


author: Judge Arnold Shulman.

text:
    A91A1717.
    CRENSHAW v. HOGAN.
    (416 SE2d 147)
   Judge Arnold Shulman.

The appellant sued the appellee to recover for personal injuries she allegedly sustained when she tripped and fell outside the appellee’s home. She brings this appeal from an order granting summary judgment to the appellee.

The appellant lost her footing when the heel of her shoe got caught in a what she described as a “hole” at the edge of the appellee’s driveway, where it adjoined a walkway leading to the front door of the house. She described this hole as being about 14 inches long, three inches wide, and less than half an inch deep. The sun was out at the time, and the appellant acknowledged that there was nothing to obscure her view of the hole.

Decided February 27, 1992.

C. Lawrence Jewett, Jr., for appellant.

Swift, Currie, McGhee & Pliers, Lloyd B. Hedrick, Jr., for appellee.

The appellant’s purpose in coming onto the premises was to engage in a social visit with appellee’s nephew, who lived there with the appellee. The appellant contends that the nephew was the appellee’s paying tenant and that because she (the appellant) was there as his guest, she stood in his shoes and enjoyed the status of an invitee.

Based on the photographic evidence included in the record and on the appellant’s own deposition testimony, we conclude that the asserted defect which caused her to fall was so open and obvious that it could not be considered actionable even if she was an invitee. It is common knowledge that small cracks, holes and uneven spots often develop in pavement; and it has been held that where there is nothing to obstruct or interfere with one’s ability to see such a “static” defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved. See Jeter v. Edwards, 180 Ga. App. 283 (349 SE2d 28) (1986); Emory University v. Duncan, 182 Ga. App. 326 (2) (355 SE2d 446) (1987). Accordingly, we hold that appellee was properly granted summary judgment in the present case. The appellant’s reliance on Pinkney v. VMS Realty, 189 Ga. App. 177 (375 SE2d 90) (1988), as authority for a contrary result is misplaced. The plaintiff there had fallen a distance of about a foot from one ramp of an enclosed, multi-level parking garage onto an adjacent ramp. On the basis of her testimony that the two levels appeared to blend together due to a combination of poor lighting and the absence of railings or warning markers, the court held that a fact issue existed as to whether her failure to see the ledge barred her from recovery. Whereas the accident in Pinkney occurred inside an enclosed structure at night, under lighting conditions which may have created an optical illusion, the accident in the present case occurred outdoors, in broad daylight; and the appellant acknowledged that there was nothing to interfere with her ability to see the asserted defect.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


author: Cooper, Judge.

text:
    A91A2087.
    DAVIS v. THE STATE.
    (416 SE2d 375)
    Decided February 27, 1992.

      William T. Payne, for appellant.

      Robert E. Keller, District Attorney, Albert B. Collier, Assistant

      District Attorney, for appellee.
   Cooper, Judge.

Appellant was convicted by a jury of two counts of aggravated assault upon a police officer and appeals from the denial of his motion for new trial. In his sole enumeration of error, appellant contends that the State failed to prove beyond a reasonable doubt that the crimes charged occurred within Clayton County.

“Generally, criminal actions must be tried in the county where the crime was committed. OCGA § 17-2-2 (a).” Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988). Further, ‘““[v]enue in criminal cases is a matter of jurisdictional fact, and like every other material allegation in the indictment must be proved beyond a reasonable doubt.” [Cits.]’. . . [Cit.]” Hernandez v. State, 182 Ga. App. 797, 798 (1) (357 SE2d 131) (1987). “ ‘Where there is no conflicting evidence, slight evidence is sufficient. [Cit.] Since venue is a question for the jury, its decision will not be set aside if there is any evidence to support it. (Cits.)’ [Cits.]” White v. State, 193 Ga. App. 428, 429 (1) (387 SE2d 921) (1989).

At trial, the two officers involved in the incident testified that during a chase of a vehicle driven by appellant, several shots were fired from appellant’s vehicle at their police car. The testimony of both officers as to the first round of shots indicates that the first shots did occur at a location within Fulton County. However, one of the officers also testified that another round of shots was directed at their vehicle at a location on Riverdale Road that she believed to be within Clayton County. The defense did not introduce any evidence that conflicted with the officer’s statement that she believed this portion of Riverdale Road to be located within Clayton County. We conclude that the testimony of the officer was sufficient to support the jury’s finding that venue was in Clayton County. See Jones v. State, 245 Ga. 592 (2) (266 SE2d 201) (1980).

Judgment affirmed.

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


text:
    A91A1807.
    WOMBLE v. THE STATE.
    (416 SE2d 148)
   Cooper, Judge.

Appellant was convicted in a jury trial of possession of cocaine with intent to distribute and appeals the denial of his motion for new trial, asserting as a sole enumeration of error the trial court’s denial of his motion for directed verdict of acquittal.

“A directed verdict in a criminal case is warranted only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of not guilty, that is, where an acquittal is the only legal finding possible. [Cits.]” Randolph v. State, 198 Ga. App. 291 (1) (401 SE2d 310) (1991). The evidence adduced at trial is as follows: While on foot patrol in an area known for drug activity, a Dalton police officer observed appellant, whom the officer already knew, standing next to a vehicle and then walking across the street toward a power pole with something in his hand. Appellant placed the item on the ground behind the power pole, and he sat, leaning against the pole, with his back towards the item. Another man approached appellant, and the two whistled, getting the attention of another car travelling on the street. When the car stopped, the other man went to the passenger side, and appellant went to the driver’s side, taking with him the item behind the power pole. While appellant stood at the driver’s side of the car, his back faced the officer, blocking the officer’s view; however, when appellant turned away, the officer was able to see appellant holding a small, unfolded plastic bag. After approximately 90 seconds, appellant walked back to the pole, rolled the bag up and replaced the bag behind the pole. The officer called for back-up assistance and approached appellant. The officer retrieved a rolled plastic bag from behind the pole which contained 16 rocks of suspected crack cocaine in smaller bags, each with a value of approximately $20 to $40. Appellant was arrested, and $40 in cash was found on his person. The bag of suspected cocaine was sealed in another bag by the police and sent to the crime lab for analysis. An expert from the Georgia State Crime Lab testified that his chemical analysis of one of the “rocks” and his visual examination of the remaining 15 indicated that they were all cocaine. Viewing the evidence in the light most favorable to the verdict, we find the evidence and all reasonable deductions therefrom are such as to enable a rational trier of fact to find appellant guilty of possession of cocaine with intent to distribute beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Therefore, the court did not err in denying appellant’s motion for directed verdict of acquittal. Randolph, supra.

Decided February 28, 1992.

Bates, Kelehear & Starr, James E. Poland, Jr., for appellant.

Jack O. Partain III, District Attorney, Kurt A. Kegel, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A91A1855.
    MELVIN v. THE STATE.
    (416 SE2d 149)
   Cooper, Judge.

Appellant was tried and convicted of two counts of rape, two counts of aggravated assault, two counts of kidnapping and aggravated sodomy as the result of two attacks on two female victims and appeals the denial of his motion for new trial.

1. Appellant enumerates as error the trial court’s question to the prosecutor during the State’s examination of its expert witness, “are you skipping over his educational background or was I asleep when you asked him those questions?” Appellant contends the trial court tried to coax the prosecutor into asking pertinent questions of an expert witness to insure the admissibility of the witness’ expert opinion and that the question intimated the court’s opinion on the question of appellant’s guilt. However, no objection was raised to the question at trial. “Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. [Cit.]” Fancher v. State, 190 Ga. App. 438 (1) (378 SE2d 923) (1989).

2. In his second enumeration of error, appellant contends the trial court erred in allowing the admission into evidence of an indictment of a defense alibi witness for purposes of impeachment. Appellant argues that the witness could not be impeached solely with the indictment. The record demonstrates, to the contrary, that the indictment, a document evidencing the witness’ guilty plea and the judgment entered thereon were admitted, together constituting a complete record of the witness’ criminal conviction for purposes of impeachment. See Clarke v. State, 239 Ga. 42 (3) (235 SE2d 524) (1977). This enumeration is without merit.

3. Appellant contends the trial court erred in failing to grant a directed verdict on one of the rape counts because the evidence did not demonstrate an unbroken chain of custody in the transport of corroborating evidence, the victim’s bloody nightgown, from the detective who was given the nightgown by the victim to the FBI Crime Lab, where the nightgown underwent DNA testing. At the outset we must note that the General Assembly removed the corroboration requirement from the rape statute in 1978. See Baker v. State, 245 Ga. 657 (5) (266 SE2d 477) (1980). Furthermore, the record belies appellant’s contention that the nightgown was unaccounted for after the first detective released the gown to a second detective until the gown arrived at the GBI Crime Lab. The first detective testified that he placed the nightgown along with other items belonging to the victim in a bag, sealed the bag and marked it with the victim’s name. A second detective testified that he then took the sealed bag to the GBI Crime Lab. Although a list of items received by the lab did not contain the nightgown, the official who received the bag at the lab testified that the sealed bag marked with the victim’s name contained the nightgown and displayed no signs of tampering. Accordingly, the trial court did not err in denying appellant’s motion for directed verdict on count one of the indictment.

Decided February 28, 1992.

Robert B. Smith, for appellant.

W. Glenn Thomas, Jr., District Attorney, Gregory C. Perry, Stephen D. Kelley, Assistant District Attorneys, for appellee.

4. Appellant also argues that he was prejudiced by the trial court’s reference to the witnesses from the GBI and FBI Crime Labs as experts in its charge on expert testimony because by labelling the witnesses as experts, the court intimated its opinion as to appellant’s guilt. “The charge to the jury is to be taken as a whole and not out of context. [Cit.]” French v. State, 199 Ga. App. 873 (2) (406 SE2d 526) (1991). An examination of the entire charge reveals that by referring to the witnesses, the trial court in no way intimated appellant’s guilt or suggested to the jury the weight to be given such testimony but merely illustrated to which evidence the charge applied. The trial court’s statement was proper.

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A91A1515.
    BELL v. THE STATE.
    (416 SE2d 344)
   Sognier, Chief Judge.

Willie James Bell was indicted for murder and possession of a firearm in the commission of a felony. A jury found him guilty of voluntary manslaughter and the firearm possession charge, and he appeals from the judgment of conviction and sentence entered on the jury’s verdict.

1. Although the record shows that at a pretrial motions hearing, the trial court agreed to reinspect the prosecution’s file in camera in light of any special defenses, it is not necessary that we determine whether the trial court actually did so because appellant did not object to any alleged failure, and we are thus foreclosed from reviewing this issue on appeal. Wisdom v. State, 234 Ga. 650, 652 (217 SE2d 244) (1975).

2. Appellant asserts error regarding two incidents that occurred during jury selection. The first involved an outburst of crying by a woman in the crowded courtroom. The trial judge was not aware of the woman’s identity until she was identified as the victim’s mother by appellant’s counsel, and the woman’s identity was never disclosed to the jury. The trial court denied appellant’s ensuing motion for a mistrial or, in the alternative, to quash the jury panel. “Many, if not most, trials by jury involve some degree of emotion by at least one party or the other. It would be unreasonable to expect that all emotions be completely frozen during a trial by jury when such effective bridle on emotions cannot be sustained elsewhere. Demonstrations and outbursts which occur during the course of a trial are matters for the trial court’s discretion.” (Citations and punctuation omitted.) Forney v. State, 255 Ga. 316, 318 (3) (338 SE2d 252) (1986). Here, the trial court immediately had the woman escorted from the courtroom and gave the jury a curative instruction, after which all jurors indicated, in response to the trial court’s question, that they could disregard the incident and remain impartial. Under these circumstances, we find no abuse of the trial court’s discretion in denying appellant’s motion. Id.

The second incident involved a juror who approached the judge with a question after the outburst. She indicated that she would rather not serve, vaguely expressing a fear of what might happen should the jury’s verdict go a certain way. The trial court’s questioning of this juror, rather than constituting impermissible comment, as urged by appellant, was merely an attempt to understand the basis for the juror’s hesitation, and we find no error in the trial court’s denial of appellant’s motion to quash the jury panel based on this incident.

3. Appellant contends the trial court erred by admitting bone fragments and certain photographs into evidence on the ground that they were proffered solely to inflame the jury. We do not agree with appellant that these exhibits were irrelevant to the issues tried, as a police officer testified that the bone fragments were recovered near the victim’s body immediately after the shooting, and the photographs depicted the victim’s body at the scene shortly after the shooting. “[R]elevant evidence ‘may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ ” Hicks v. State, 256 Ga. 715, 720-721 (13) (352 SE2d 762) (1987). However, “such considerations are appropriately committed to the trial court’s sound exercise of discretion, and we find no abuse of discretion here,” id. at 721, particularly since neither the bone fragments nor the photographs (all but one of which depicted the victim covered by a sheet) was particularly gruesome. Compare Brown v. State, 250 Ga. 862, 866-867 (5) (302 SE2d 347) (1983) (photographs depicting victim after autopsy and incisions inadmissible unless necessary to show some material fact brought out only after autopsy).

4. We find no error in the trial court’s jury charge. Contrary to appellant’s contention, the trial court did charge the jury on self-defense and voluntary manslaughter. No evidence was adduced at trial which would indicate self-defense other than the evidence showing that appellant and the intended victim were engaged in mutual combat, and a charge on justification as related to mutual combat was given. McCord v. State, 176 Ga. App. 505 (1) (336 SE2d 371) (1985) and Gerald v. State, 189 Ga. App. 155 (1) (375 SE2d 134) (1988), relied on by appellant, are inapposite, as those cases involved an incorrect charge on justification in mutual combat, and the charge here was a correct statement of the law.

We do not agree with appellant that this case is controlled by Johnson v. State, 151 Ga. App. 887 (1) (262 SE2d 201) (1979), because unlike the circumstances in Johnson, appellant intentionally pointed the gun at his intended victim. A charge on accident was not warranted under these circumstances.

The court’s charge on inferred intent and transferred intent was a correct statement of the law and not impermissibly burden-shifting. The Supreme Court specifically approved this charge in Wilson v. Jones, 251 Ga. 23-24 (1) (302 SE2d 546) (1983). The trial court gave charges on reasonable doubt and the presumption of innocence, instructing the jury that “[n]o person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt” and that “[tjhere is no burden of proof upon the defendant whatever, and the burden never shifts to the defendant to prove his innocence.” In the context of these instructions, the charge as a whole “did not suggest to a reasonable juror that the defendant was required to disprove criminal intent, nor did it remove from the state its burden of proving criminal intent beyond a reasonable doubt. [Cit.]” Id. at 24 (1).

5. In three enumerations of error appellant challenges certain aspects of his sentencing hearing. Contrary to appellant’s assertion, the record does not show that the presentence report was used in aggravation of his sentence rather than in mitigation. Nor was the State’s recommendation regarding sentencing “evidence” that required disclosure to appellant in advance of the sentencing hearing. See Munsford v. State, 235 Ga. 38, 45 (218 SE2d 792) (1975).

Decided February 17, 1992

Reconsiderations denied February 27, 1992 and March 2, 1992

Beauchamp & Associates, Kermit S. Dorough, Jr., for appellant.

Britt R. Priddy, District Attorney, Nancy G. Grigg, Assistant District Attorney, for appellee.

In response to appellant’s showing in mitigation of sentence that he had attempted to apologize to the victim’s mother, the trial court commented that the mother was “not too bitter about it, except that she feels that [appellant] should serve some time.” Although this remark indicates the trial judge had some familiarity with the opinion of the victim’s mother in this regard, the record does not indicate whether the statement attributed by the trial court to the victim’s mother was derived from an official victim impact statement, the probation department’s presentence investigation, or some other source. However, even assuming that it was contained in a victim impact statement which was not disclosed to appellant prior to the hearing as required by OCGA § 17-10-1.1 (d), we cannot agree with appellant that resentencing is necessary in this case.

First, we do not agree that the victim’s mother’s feeling that she was not bitter but that appellant should serve some time constitutes an instance of witness’ testimony or prosecutor’s remarks “so infecting] the sentencing proceeding as to render it fundamentally unfair” so as to require resentencing under Justice O’Connor’s concurrence in Payne v. Tennessee, 501 U. S. _ (111 SC 2597, 115 LE2d 720, 740) (1991).

Second, appellant complains not of the content of the statement but of the prosecutor’s failure to disclose it to him prior to the hearing. However, subsection (g) of OCGA § 17-10-1.1, the statute setting forth the procedure to be used regarding victim impact statements, provides that “[n]o sentence shall be invalidated because of failure to comply with the provisions of this Code section.”

6. We have carefully reviewed appellant’s remaining enumerations of error and find them without merit.

Judgment affirmed.

Beasley, J., concurs. Carley, P. J., concurs in Divisions 1, 2, 3, 4, and 6, and in the judgment.


author: Beasley, Judge.

text:
    A91A1517.
    CORNELIUS v. LAWRENCE.
    (416 SE2d 115)
   Beasley, Judge.

Tenant Cornelius appeals the denial of her motion for new trial following a defendant’s verdict in her suit against landlord Lawrence to recover the stipulated amount of $9,094.50 for personalty damaged and lost in a fire at the leased garage apartment. Liability was the sole issue at trial. Cornelius alleged that the fire was caused by a defective floor furnace exploding or otherwise expelling flames, and that Lawrence had both actual and constructive notice that the furnace was defective but negligently failed to remedy the dangerous condition. The appeal challenges the jury charge.

1. “ ‘Even without a motion to dismiss the appeal, it is the duty of the reviewing court to entertain the threshold question of its jurisdiction where there may be any doubt. (Cits.)’ [Cits.]” McClanahan v. State, 196 Ga. App. 737 (1) (397 SE2d 24) (1990).

The verdict was entered March 5, 1991. The motion for new trial was filed March 12 and was denied on April 29. Notice of appeal was filed that day. Judgment on the verdict was not entered until May 28.

Even though the motion for new trial was premature, “ ‘this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal’ [cit.],” McClanahan, supra at 737 (1), in the face of a timely notice of appeal from the disposition of the motion and the subsequent entry of judgment. See Jessup v. Newman, 191 Ga. App. 772 (383 SE2d 136) (1989); McKeever v. State of Ga., 189 Ga. App. 445, 446 (375 SE2d 899) (1988); Joiner v. Perkerson, 160 Ga. App. 343 (1) (287 SE2d 327) (1981); Harrison v. Harrison, 229 Ga. 692 (1) (194 SE2d 87) (1972).

2. Cornelius contends that the trial court committed reversible error in failing to grant a new trial because the court did not charge the jury on res ipsa loquitur and did instruct the jury on accident.

First, since the motion for new trial raising the contentions was void from prematurity, there was no error in denying it. Harrison, supra at 692 (1).

Second, appellant’s complaints do not achieve their desired end.

The contention that the failure to instruct on res ipsa loquitur completely undermined Cornelius’ case does not stand when faced with the evidence at trial.

“The elements of the res ipsa loquitur doctrine are: ‘ “(1) injury of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” ’ [Cits.] Further, ‘(t)he accident must also be “of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.” ’ [Cit.] Moreover, ‘ “(r)es ipsa loquitur should be applied with caution and only in extreme cases; . . . it is not applicable when there is an intermediary cause which produced or could produce the injury, or where there is direct unambiguous testimony as to the absence of negligence by the defendant, or where there is no fair inference that the defendant was negligent.” ’ [Cit.]” Walter v. Orkin Exterminating Co., 192 Ga. App. 621, 623 (2) (385 SE2d 725) (1989).

Aside from any question of exclusive control, there is not even a reasonable inference of defendant’s negligence. Cornelius’ own testimony was that her only knowledge of the cause of the fire was based on the findings of the fire department’s investigator. The investigator found ho evidence that the suspected floor furnace was defective, had been working improperly, or had exploded. The investigation theorized that the fire had been caused by floor joists igniting from the furnace cabinet venting system which had heated up from continuous operation because of cold air coming into the structure from an open garage door. There was no evidence that defendant had either constructive or actual knowledge of any furnace defect which proximately caused the fire.

The evidence presented did not justify a jury instruction on res ipsa loquitur. Walter, supra at 624 (2).

However, this very same evidence did justify an instruction on the doctrine of accident, inasmuch as it showed that the fire possibly “could have been the result of ‘an event not proximately caused by negligence but which instead (arose) from an unforeseen or unexplained cause. (Cit.)’ (Cit.)” Sellers v. Lawrence, 178 Ga. App. 734 (344 SE2d 710) (1986). See also Shennett v. Piggly Wiggly Southern, 197 Ga. App. 502, 504 (4) (399 SE2d 476) (1990); Greene v. Wright, 200 Ga. App. 125, 126 (1) (407 SE2d 68) (1991) (physical precedent).

Appellant complains that the court charged that accident “is also used to indicate a happening which although not wholly free from negligence by some person, was not proximately caused by failure of either of the parties to use ordinary care.”

At the conclusion of the court’s instruction, Cornelius’ counsel made only bare objections to the inclusion of the accident instruction and the failure to give the res ipsa loquitur charge. Such an objection was sufficient to challenge the court’s refusal to instruct the jury on the submitted written res ipsa loquitur request, see Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 856 (3) (360 SE2d 415) (1987) overruling Green v. Dillard, 176 Ga. App. 574 (337 SE2d 55) (1985). It was inadequate to preserve objection to the given accident instruction because it did not provide the trial court with any legal basis or any indication of factual inapplicability. The record does not show by way of charge conference or otherwise that the trial court had been apprised of the grounds of objection to the accident charge so that it could rule intelligently. See F. A. F. Motor Cars v. Childers, 181 Ga. App. 821, 822 (2) (354 SE2d 6) (1987), applying the test in Christiansen v. Robertson, 237 Ga. 711 (229 SE2d 472) (1976).

Decided February 13, 1992

Reconsideration denied March 2, 1992.

Bobby J. Lindsey, for appellant.

Jones, Cork & Miller, John T. Mitchell, Jr., for appellee.

In any event, the objected-to language, though erroneous, was harmless in light of the fact that the undisputed evidence required the jury to find that defendant Lawrence was not negligent as claimed by plaintiff. “ ‘ “It is axiomatic in Georgia appellate law that an appellant, to secure a reversal, must show not only error but harm.” (Cit.)’ [Cit.]” Estate of Sam Farkas, Inc. v. Dougherty County School System, 178 Ga. App. 135 (342 SE2d 501) (1986).

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


author: Carley, Presiding Judge. Beasley, Judge,

text:
    A91A1746.
    RANDOLPH v. THE STATE.
    (416 SE2d 117)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of violating the Georgia Controlled Substances Act. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. It is urged that, at trial, the State was erroneously allowed to meet its evidentiary burden of proving appellant’s commission of a purportedly similar crime by merely introducing a certified copy of an indictment. Stephens v. State, 261 Ga. 467, 468 (6) (405 SE2d 483) (1991). The record shows, however, that this issue was not preserved for appellate review. Hunter v. State, 202 Ga. App. 195 (3) (413 SE2d 526) (1991).

2. Appellant was relying upon the defense of misidentification and.it was for the jury to determine the credibility of the eyewitness testimony wherein appellant was positively identified as the perpetrator. Construing the evidence adduced at trial most favorably for the State, it was sufficient to authorize a rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Through a timely invocation of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) and a showing that counsel for the State had employed peremptory strikes to remove both of the two black prospective jurors, appellant made a strong prima facie case of racial discrimination. Gamble v. State, 257 Ga. 325, 326 (3) (357 SE2d 792) (1987); Durham v. State, 185 Ga. App. 163, 166 (3) (363 SE2d 607) (1987). Accordingly, counsel for the State was correctly required to explain his employment of the peremptory strikes. After receiving the explanations, the trial court found no Batson violation. Appellant enumerates this ruling as error.

“The proscription laid down in Batson is that a prosecutor may not strike a black juror solely because of his race, nor may he strike on the basis of an assumption which arises ‘solely from the jurors’ race,’ nor may he strike ‘to exclude . . . veniremen from the petit jury on account of their race.’ [Cit.] A strike exercised under such an assumption will run afoul of the requirements of Batson that the action must be ‘neutral,’ ‘legitimate,’ and ‘nondiscriminatory,’ and shown to be such by ‘clear and reasonably specific’ explanations.” Gamble v. State, supra at 325-326 (2). “In order to rebut a prima facie case of racial discrimination in the exercise of peremptories, the prosecutor must explain each peremptory challenge of a black prospective juror. The explanation ‘need not rise to the level justifying exercise of a challenge for cause,’ but it must be ‘neutral,’ ‘related to the case to be tried,’ and a ‘ “clear and reasonably specific,” explanation of his “legitimate reasons” for exercising the challenges.’ [Cits.]” Gamble v. State, supra at 327 (5).

One of the two prospective jurors in this case was stricken because it had been established on voir dire that she knew appellant and several of his family members. As to this prospective juror, counsel for the State clearly offered a sufficiently neutral, legitimate and nondiscriminatory explanation for his employment of a peremptory strike. Bess v. State, 187 Ga. App. 185, 186 (1) (369 SE2d 784) (1988); McCormick v. State, 184 Ga. App. 687, 688 (362 SE2d 472) (1987).

As to the employment of the other peremptory strike, counsel for the State offered as his explanation the possibility that the prospective juror would be unable to be fair and impartial as between appellant and the State. Possible juror bias is a neutral, legitimate and nondiscriminatory basis for the exercise of a peremptory strike. Accordingly, if the record demonstrated even “relatively weak” support for the exercise of the peremptory strike on that basis, it would not be error for the trial court to have found that appellant’s prima facie case had been rebutted. Gamble v. State, supra at 327 (5); Bess v. State, supra at 187 (1).

The prospective juror was shown to be a member of certain all-black professional or social organizations. However, this lends no more support for concluding that he would possibly be biased in favor of appellant than a white prospective juror’s membership in all-white similar organizations would lend any support to the conclusion of possible bias in favor of the State. In either event, the possibility that juror bias is demonstrated by mere membership in such organizations would be based upon an impermissible assumption ultimately arising solely from the juror’s race.

The prospective juror was also shown to be of the general opinion that racism is present “everywhere” and that it is even present in the judicial system itself. However, the prospective juror did not express an opinion that the judicial system is itself racist and there is nothing to support the conclusion that he was of the opinion that any and all defendants in criminal cases were necessarily to be viewed as victims of racism. That he held the general opinion that, to some unquantified degree, there is racism in the judicial system is no more indicative of his possible bias in favor of appellant than a white prospective juror’s general opinion that racism is present “nowhere” would be indicative of possible bias in favor of the State. In either event, the possibility that juror bias is demonstrated by a general opinion as to the existence or non-existence of racism would be based upon an impermissible assumption ultimately arising solely from the juror’s race. Moreover, the prospective juror further indicated that he himself had no prior personal involvement with the judicial system and there is nothing to indicate that his own selection as a juror would not, in and of itself, be sufficient to dispel his opinion as to the presence of racism in the judicial system. If the prospective juror had betrayed the possible existence of his own racist opinions, a peremptory strike would be warranted. However, he merely expressed a general opinion that others still held racist beliefs and he did not indicate that his opinion in that regard would in any way possibly bias him against the State in its effort to secure appellant’s conviction.

It follows that the record does not demonstrate even “relatively weak” support for the exercise of the peremptory strike on the basis of possible juror bias. To the contrary, the record demonstrates the lack of any support for the exercise of the peremptory strike on that basis. “In these circumstances, the trial court’s finding that the prosecutor successfully rebutted the prima facie Batson case is clearly erroneous. ... We must therefore reverse. Because the evidence meets the standard of Jackson v. Virginia, [supra], the case may be retried before a properly selected jury.” Gamble v. State, supra at 330 (6, 7).

Judgment reversed.

Judge Arnold Shulman concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in Divisions 2 and 3, but with respect to Division 1,1 do not agree that the issue was not preserved. See the dissents in Hunter v. State, 202 Ga. App. 195 (413 SE2d 526) (1991). Since we have reversed the judgment on another ground so that a new trial is required, the issue is moot.

Decided February 13, 1992

Reconsideration denied March 2, 1992.

Summer & Summer, Chandelle T. Summer, for appellant.

C. Andrew Fuller, District Attorney, C. David Turk III, Assistant District Attorney, for appellee.


text:
    A91A1822.
    ANDERSON v. THE STATE.
    (416 SE2d 309)
   Beasley, Judge.

A jury found Anderson guilty of driving under the influence of alcohol to the extent that it was less safe for him to drive, OCGA § 40-6-391 (a) (1); driving with an alcohol concentration of .12 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended, former OCGA § 40-6-391 (a) (4); carrying a concealed weapon, OCGA § 16-11-126 (a); and speeding, OCGA § 40-6-180. He was sentenced on the DUI to the extent that he was a less safe driver and on the weapon and speeding charges. He challenges the evidence, the court’s charge, and juror and court personnel conduct.

1. In enumerations of error one through four, Anderson claims that the verdicts on DUI and carrying a concealed weapon were contrary to the weight of the evidence and that the court erred in denying his motions for directed verdicts of acquittal on these three charges. The inquiry is the sufficiency of the evidence. See Lewis v. State, 186 Ga. App. 92 (1) (366 SE2d 305) (1988); Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988); and Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988), for a discussion of the general grounds.

At approximately 6:30 p.m. a Glynn County police officer was heading southbound on U. S. Highway 341 when he noticed a vehicle heading northbound and appearing to exceed the posted 55 miles per hour speed limit. Radar clocked the speed at 81 miles per hour. The officer turned around, followed the car and pulled it over.

As Anderson exited, the officer asked for his driver’s license and told him why he had been stopped. Anderson commented that he had not realized he was going that fast. As he reached with his left hand toward his left hip area, ostensibly to retrieve his wallet, his waist length jacket “bloused open a little bit” and the officer spotted a .380 caliber automatic handgun. Anderson himself believed that when he stood normally, the end of the pistol was visible only about an inch beneath his jacket. He had a Florida concealed weapon or firearm license but none from Georgia.

The officer told Anderson to place his hands on the hood of the patrol car, which he did. He kept trying to turn toward the officer and the officer told him more forcefully to keep his hands on the car hood.

The officer removed the weapon and handcuffed Anderson. As they spoke, the officer detected the odor of alcohol on Anderson’s breath. His speech was “a little slurred” and at one point he indicated confusion about whether he was in Georgia or Florida. By his own admission, Anderson had consumed two vodka drinks and one beer. He failed to pass the field sobriety breath test and was arrested on all charges. An Intoximeter 3000 test administered at the station at 7:36 p.m. showed a blood alcohol level of .12 percent.

As to a conviction under OCGA § 40-6-391 (a) (1), it was not necessary that the State prove that Anderson was drunk when driving but rather that, beyond a reasonable doubt, he was under the influence of alcohol so as to make it less safe for him to operate a motor vehicle. See Harper v. State, 91 Ga. App. 456, 458 (2) (86 SE2d 7) (1955). Nor must the State have shown that Anderson committed an unsafe act, State v. Smith, 196 Ga. App. 876, 877 (397 SE2d 304) (1990); Moss v. State, 194 Ga. App. 181, 182 (390 SE2d 268) (1990), although he was committing the unsafe act of speeding at the time he was initially spotted by the officer.

The Intoximeter 3000 “Taguchi cell” argument in regard to both DUI verdicts is without merit. Lattarulo v. State, 261 Ga. 124, 127 (4) (401 SE2d 516) (1991). See also Hudson v. State, 197 Ga. App. 428, 429 (1) (398 SE2d 779) (1990), concerning a claim of effect of extraneous factors on the test results.

As to the concealed weapon conviction, the evidence belies the assertion that initially the gun was clearly visible to the officer.

The evidence was sufficient to enable any rational trier of fact to find appellant guilty beyond a reasonable doubt of driving under the influence of alcohol in both manners charged and of carrying a concealed weapon. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Directed verdicts of acquittal were not required on these charges. See OCGA § 17-9-1 (a).

2. The fifth enumeration of error challenges the court’s charge on testimony from expert witnesses, urging that it gave undue weight to the testimony of the State’s witness and minimized the testimony of defendant’s expert witness. No supporting authority is cited.

The charge was as follows: “I refer to the opinion testimony of the arresting officer to the effect that in his opinion the defendant was under the influence of intoxicating beverages to the extent that he was a less safe driver because of having consumed the alcoholic beverages than he otherwise would have been were he not so affected and to the opinion testimony of the defendant’s expert regarding the matters within his expertise. And you may give his opinion testimony just such weight and credibility as you, the jury, see fit to give to him.”

First, the charge immediately followed the court’s clear instruction that the opinion of an expert witness was to be given just such weight and credibility as the jury saw fit.

Second, the instruction was not limited to the State’s witness but was neutral in its specific mention of both alleged experts. Moreover, the substance of the lengthy testimony of defendant’s expert could not have been readily synopsized for inclusion in the jury instruction, nor was the trial court, by its own statements, able to expand on the expert’s area of expertise because of confusion in this regard.

The instruction considered in the context of the whole charge, see Howell v. State, 157 Ga. App. 451, 457 (6)-458 (278 SE2d 43) (1981), did not prejudice defendant in the manner claimed.

3. The sixth enumeration of error contends that the court’s charge on former OCGA § 40-6-392 (b) (3) was impermissibly burden shifting.

The court charged: “If you should find that a chemical analysis test was run of the defendant’s breath, blood, urine or other bodily substances, and that the alcohol contained .10 grams percent or more alcohol in the blood stream, a legal presumption would be established that the defendant was under the influence of intoxicating beverages to the extent that he was a less safe driver than he otherwise would have been were he not so affected.

“However, that is a rebuttable presumption and the burden is on the State to prove that he was under the influence of intoxicating beverages to the extent that he was a less safe driver than he otherwise would have been were he not so affected and/or that his blood stream contained .12 grams percent alcohol or more at the time of his arrest. . . .”

Even though worded in terms of a presumption, former OCGA § 40-6-392 (b) (3) has been held not to create a burden-shifting presumption of guilt but rather to have the “ ‘effect of defining the level of blood-alcohol that is sufficient to permit an inference that the driver is ‘under the influence’ ” when read in conjunction with OCGA § 40-6-391 (a) (1)-(3). Lattarulo v. State, supra at 125 (1). However, “the statute may not be charged to the jury using the word ‘presumption.’ ” Lattarulo, adopting this portion of Simon v. State, 182 Ga. App. 210 (355 SE2d 120) (1987) (physical precedent as to Div. 4), and Peters v. State, 175 Ga. App. 463 (333 SE2d 436) (1985) (physical precedent). That is true “even where the jury is instructed that the presumption contained therein is rebuttable.” Peters at 468 (2).

The erroneous charge requires that the conviction for violation of OCGA § 40-6-391 (a) (1) be reversed.

4. Enumeration of error seven claims that the court committed reversible error in failing to charge OCGA § 40-6-392 (b) (1) and (2), it having charged on the presumption arising from OCGA § 40-6-392 (b) (3). The question is moot because we have already ruled that the charge was fatally flawed. See Division 3, supra.

5. In enumeration of error eight, Anderson contends that it was error to fail to charge the elements of OCGA § 16-11-126. The harm claimed is that there was evidence which would have authorized the jury to find that the firearm was carried openly and fully exposed to view and the instruction should have advised the jury that if the weapon-carrying was in an open manner and fully exposed to view, there was no violation.

The court charged: “ [I]t is unlawful for any person to carry a concealed weapon on his person in the State of Georgia and a person who is found guilty of carrying a concealed weapon shall be punished as for a misdemeanor.”

First, the denomination and description of the crime, both containing the word “concealed,” clearly informed the jury that the prohibition was that the weapon was hidden. See Webster’s New Inti. Dictionary, 2d ed. Unabridged, 1959.

Further, contrary to appellant’s contention, the evidence was not that the weapon was carried “openly and fully exposed to view.” See statement of facts, supra. Neither the circumstance admitted by Anderson at trial, that normally approximately an inch of the gun handle might have been visible below appellant’s jacket line, nor the fact that the officer was able to initially view the weapon through an opening in Anderson’s jacket, meet the “open” and “exposed” requirements of the statute. Marshall v. State, 129 Ga. App. 733 (1) (200 SE2d 902) (1973) (overruled as to license charge, see Head v. State, 235 Ga. 677, 679 (221 SE2d 435) (1975).

Considering the evidence in this case together with the instruction, it was not reversible error to fail to charge the remaining “open manner and fully exposed to view” language of OCGA § 16-11-126 (a).

6. In the final enumeration of error, Anderson contends that his convictions should be reversed due to the failure of a court bailiff to refer a juror’s question to the court. He claims he was deprived of any opportunity to consider the juror’s question and, if appropriate, have the question answered.

The alleged exchange purportedly occurred during a trial recess. The bailiff testified at the post-trial hearing that a juror asked her “if a juror was allowed to ask a question.” The juror prefaced that she was a school teacher and felt like raising her hand at times. It was the bailiff’s impression that, in the brief exchange, the juror was making a general query about whether or not a juror could raise a hand and ask a question while in the jury box. The bailiff indicated she did not know but would find out. No aspect of the case on trial was discussed.

The bailiff happened upon the solicitor trying the case and asked whether or not a juror was allowed to ask a question. The solicitor interpreted that question as the bailiff had and responded no. The solicitor was given no indication that the query was prompted by a juror on the case on trial or that any juror at all wished to ask a specific question. The bailiff relayed the answer to the juror and there was no further exchange between the two in this regard.

The juror testified that there had been some discussions of a social nature unrelated to the case between her and some of the bailiffs during the course of appellant’s trial and two other trials that week on which she served as a juror, but that she did not recall the subject exchange with the bailiff. The only time she recalled specifically asking about asking a question was when she, as the jury foreperson, raised a question about differing filing dates on Anderson’s accusations. At that time the jury was returned to the courtroom, the question was asked and answered on the record. The juror affirmed that there had been no other question or communication about the case or concerning the asking of a question with any court personnel or fellow jurors.

“It has long been recognized by the courts of this state that the guarantee of a fair and impartial jury is a central safeguard to a fair trial in our system of criminal justice. [Cit.] There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred. [Cit.] [It has also been] recognized that some irregularities are inconsequential. Smith v. State, 218 Ga. 216 (126 SE2d 789) (1962). . . .” Lockridge v. State, 260 Ga. 528, 529 (397 SE2d 695) (1990) quoting from Lamons v. State, 255 Ga. 511, 512 (340 SE2d 183) (1986).

Assuming that the alleged exchange took place, there was no evidence that the question was asked for any purpose other than general knowledge or that the subject juror or any juror on the case had an unasked and unanswered question about Anderson’s case because of any exchange with the bailiff. These circumstances warrant the conclusion that appellant suffered no harm by virtue of the alleged out-of-court contact, beyond a reasonable doubt.

Decided January 30, 1992

Reconsideration denied March 2, 1992

James A. Chamberlin, Jr., for appellant.

Richard H. Taylor, Solicitor, for appellee.

Judgment of conviction of OCGA § 40-6-391 (a) (1) reversed. Judgments remaining affirmed.

Carley, P. J., and Judge Arnold Shulman concur.

       Effective July 1, 1991, OCGA § 40-6-391 (a) (4) was amended to make criminal driving with an alcohol concentration of .10 grams or more.


text:
    A91A1965.
    BOWEN v. ADAMS.
    (416 SE2d 102)
   Carley, Presiding Judge.

Appellant-plaintiff filed the instant medical malpractice action, alleging that appellee-defendant had performed “an unnecessary operative procedure which was not needed or indicated by [her] condition.” Appellee answered and subsequently moved to dismiss for failure to state a claim for medical malpractice, urging that the expert affidavits that had been filed with appellant’s complaint did not satisfy the requirements of OCGA § 9-11-9.1. The trial court granted appellee’s motion to dismiss and appellant appeals.

“In any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” OCGA § 9-11-9.1 (a). Unlike OCGA § 9-11-56, which imposes an evidentiary requirement in the context of summary judgment on the merits, OCGA § 9-11-9.1 merely imposes an initial pleading requirement on the plaintiff in a malpractice action. Robinson v. Starr, 197 Ga. App. 440, 441 (2) (398 SE2d 714) (1990). Accordingly, an expert affidavit which would be insufficient to satisfy'the evidentiary standards of OCGA § 9-11-56 may nevertheless be sufficient to satisfy the pleading standards of OCGA § 9-11-9.1. 0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286 (1) (378 SE2d 708) (1989). The sufficiency of the expert affidavit determines whether the complaint for malpractice “is subject to dismissal for failure to state a claim. . . .” OCGA § 9-11-9.1 (e). When the sufficiency of a plaintiff’s complaint to state a claim for relief is questioned by a motion to dismiss, it is to “be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitied to relief under any state of provable facts should the complaint be dismissed. [Cit.]” Ghitter v. Edge, 118 Ga. App. 750, 752 (1) (165 SE2d 598) (1968).

The negligent act “claimed to exist” in the instant case is appellee’s performance of “an unnecessary operative procedure” upon appellant. In support of this claim, appellant attached to her complaint the affidavit of a physician whose competency has not been questioned. Nowhere in this affidavit did appellant’s expert specifically opine that appellee’s performance of the surgical procedure was, as appellant had alleged in her complaint, an act of medical negligence. However, even in the evidentiary context of a motion for summary judgment on the merits, “such explicit conclusory pronouncements out of the mouths of those clothed with the mantle of evidentiary expertise are not essential.” Lawrence v. Gardner, 154 Ga. App. 722, 724 (270 SE2d 9) (1980). See also Jackson v. Gershon, 251 Ga. 577 (308 SE2d 164) (1983). “The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need file his answer.” 0-1 Doctors Mem. Holding Co. v. Moore, supra at 288 (1).

Appellant’s expert did opine the following: That other medical procedures are “ordinarily” employed prior to resort to the surgical procedure performed by appellee; that, in appellant’s specific case, the surgical procedure performed by appellee was “premature”; and that, as the result, appellant suffered an injury in the form of “permanent hoarseness.” Although an unfavorable construction of this affidavit may be possible, construing it most favorably for appellant and resolving all doubts in her favor, it constitutes an affirmation that appellant’s complaint is not frivolous and that, if true, the allegations therein would authorize a recovery for an injury resulting from medical malpractice consisting of appellee’s performance of “premature” surgery rather than such other medical procedures as would “ordinarily” have been employed. See generally Housing Auth. of Savannah v. Greene, 259 Ga. 435, 439 (5) (383 SE2d 867) (1989); Druckman v. Ethridge, 198 Ga. App. 321 (3) (401 SE2d 336) (1991). Appellant cannot be required to submit an expert affidavit which unequivocally demonstrates the evidentiary merits of her claim unless and until appellee moves for summary judgment and submits evidence demonstrating that appellant’s claim lacks merit. It follows that the trial court erred in granting appellee’s motion to dismiss.

Judgment reversed.

Beasley, J., and Judge Arnold Shulman concur.

Decided February 5, 1992

Reconsideration denied March 2, 1992

G. Clyde Dekle III, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Brian R. Neary, for appellee.


text:
    A91A2008.
    PRUITT v. THE STATE.
    (416 SE2d 524)
   Beasley, Judge.

Pruitt pled guilty to driving under the influence of alcohol to the extent that it was less safe for him to drive, OCGA § 40-6-391 (a) (1); driving with a blood alcohol concentration in excess of 0.12 grams, former OCGA § 40-6-391 (a) (4); and failure to stop at a stop sign, OCGA § 40-6-72 (b). He specifically reserved for appeal the denial of his motion in limine to exclude the results of an Intoximeter 3000 test. See generally Mims v. State, 201 Ga. App. 277 (1) (410 SE2d 824) (1992).

The following evidence was received at the hearing on defendant’s motion in limine. Defendant was stopped by two Clarke County police officers after the car which he was driving failed to stop at a stop sign and “almost hit some mailboxes.” The odor of alcoholic beverage emanated from the vehicle, which was also occupied by two or three other individuals. Defendant was asked to step outside the vehicle where a field sobriety test was performed. He was unable to complete it successfully. After a portable Alcosensor test was administered, defendant was arrested for driving under the influence of alcohol and running a stop sign. The implied consent warning was read to him and he was transported to the Clarke County Jail for processing. Upon arrival at the jail, defendant was again advised of the implied consent law, following which an Intoximeter 3000 test was performed.

Although the first arresting officer was unable to recall whether defendant had requested that an independent test be performed, the second officer testified that defendant had in fact inquired about a second test after the State-administered test had been concluded. In response, the officer suggested that defendant telephone St. Mary’s Hospital, the only facility in the county which performs independent chemical analysis, to “find out the procedure and the price” and make the necessary arrangements. The officer dialed the telephone number for St. Mary’s emergency room and gave the phone to defendant who inquired about the cost of a blood alcohol test. He was informed by the emergency room receptionist that the charge was $278.

Defendant had $180 in cash in his possession and although the hospital would accept a credit card or check, he had neither. He informed the officer that he did not have enough money with him to pay for the test and inquired if it could be performed elsewhere, to which the officer responded in the negative. Defendant did not ask to place any other telephone calls nor did he make an effort to contact anyone for assistance; however, when he was subsequently released from custody, he stated that he “called someone to come and get [him].”

1. “OCGA § 40-6-392 (a) (3) allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing, and there is a corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right. [Cit.] While it is not the officer’s duty to insure the performance of an independent test, he cannot prevent a defendant from exercising his right to such a test. [Cit.] The statute also states that ‘the justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.’ ” State v. Buffington, 189 Ga. App. 800, 801 (377 SE2d 548) (1989).

The facts support the trial court findings that the officer made a reasonable effort to accommodate defendant’s efforts to obtain an independent test and that he was not impeded from doing so by any conduct on the part of law enforcement. See State v. Blalock, 197 Ga. App. 71 (397 SE2d 491) (1990); Gray v. State, 194 Ga. App. 811 (392 SE2d 290) (1990); Thompson v. State, 175 Ga. App. 645 (2) (d) (334 SE2d 312) (1985); Grizzle v. State, 153 Ga. App. 364 (265 SE2d 324) (1980). Compare Covert v. State, 196 Ga. App. 679 (396 SE2d 596) (1990); Buffington, supra; State v. White, 188 Ga. App. 658 (373 SE2d 840) (1988).

2. Defendant asserts that the test results are inadmissible because there existed a conflict in the testimony of the two officers with respect to whether an independent test had been requested. It is “the failure to inform a defendant of the right to an additional chemical test, and not the failure to obtain and show a waiver affirmatively, [which] renders inadmissible the results of a chemical test administered at the request of the arresting officer.” State v. Dull, 176 Ga. App. 152, 154 (335 SE2d 605) (1985). It is without dispute that defendant was properly advised of his right to an additional chemical test and the trial court obviously accepted defendant’s position that he had indeed made such a request. Waiver is therefore not an issue. The State satisfied its burden of proving that its test results were obtained in accordance with the statutory guidelines. OCGA § 40-6-392.

Decided February 14, 1992

Reconsideration denied March 2, 1992

Cook, Noell, Tolley & Aldridge, Edward D. Tolley, for appellant.

Kenneth W. Mauldin, Solicitor, for appellee.

3. Defendant asserts that OCGA § 40-6-392 (a) (3) is unconstitutional insofar as it denies an indigent person, who has been charged with driving under the influence, a second chemical test at the State’s expense. Where the constitutionality of a statute is drawn into question, exclusive jurisdiction is in the Supreme Court and this court will transfer such matters for consideration by that Court. 1983 Const., Art. VI, Sec. VI, Par. II (1). However, defendant failed to obtain below a ruling on the constitutional question raised here. Accordingly, the constitutional challenge need not be reached on appeal. In re Boult, 227 Ga. 564 (181 SE2d 821) (1971).

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


text:
    A91A2046.
    HORTON v. MIDDLE GEORGIA BANK.
    (417 SE2d 220)
   Carley, Presiding Judge.

In a previous lawsuit filed by appellant-plaintiff, the trial court granted summary judgment in favor of appellee-defendant and, on appeal, this court affirmed. Horton v. Middle Ga. Bank, 191 Ga. App. 51, 52 (2) (380 SE2d 749) (1989). In the instant action, appellant sought damages based upon the allegation that the affidavit upon which appellee had secured summary judgment in the previous action contained factual misstatements. After appellee answered, it successfully moved for summary judgment and appellant appeals.

1. “It is . . . clear that the instant action is no more than an unauthorized collateral attack on the . . . judgment [rendered in favor of appellee in the previous action]. . . . [Cits.]” Matthews Group & Assoc. v. Wages, 180 Ga. App. 151, 153 (2) (348 SE2d 695) (1986). “The trial court correctly granted summary jdugment in favor of [appellee].” Han v. Trend Mgmt. Group, 194 Ga. App. 265 (391 SE2d 142) (1990).

2. “Because the applicable law is indisputably clear and [appellant’s] appeal has no arguable merit, we impose a penalty for frivolous appeal, pursuant to Rule 26 (b) of the Rules of the Court of Appeals, and we direct the trial court to impose upon the [appellant] penalty of $500 upon receipt of the remittitur.” Barron v. Spanier, 198 Ga. App. 801, 802 (403 SE2d 88) (1991).

Decided February 13, 1992

Reconsideration denied March 2, 1992.

Mel Horton, pro se.

McKenney, Jordan & Carey, John D. Carey, for appellee.

Judgment affirmed with direction.

Beasley, J., and Judge Arnold Shulman concur.


text:
    A91A2108.
    PHIPPS v. THE STATE.
    (416 SE2d 319)
   Beasley, Judge.

Phipps appeals his convictions of involuntary manslaughter, OCGA § 16-5-3 (a), and cruelty to children, OCGA § 16-5-70 (b).

The victim, Brian Anthony Williamson, was approximately 22 months old at the time of his death. His mother, Robin Williamson, met appellant in October of 1986, and on January 11, 1987, she and her children moved into his trailer. Robin testified that appellant had told her that infants should be disciplined by spanking their bare buttocks, and on January 14, appellant beat Brian’s buttocks with a belt. He felt badly about it later and said he would not do it anymore.

On January 16, Robin and the children were at Robin’s mother’s house. Brian was crying and irritable but he was in good physical condition. Appellant arrived at 3:00 p.m. and left with Brian at 3:30 to take Brian to his trailer for a nap. At 4:00 p.m., appellant called Robin and told her he had whipped Brian but otherwise the child was fine. Appellant called Robin later that afternoon and said the child had fallen out of the truck and passed out, and he was with the child at a fire station.

One witness testified that at approximately 3:45 to 4:00 p.m. that afternoon he saw appellant beating Brian while appellant was driving his pickup truck. Another witness testified he saw appellant and Brian during this time period, and the child appeared to be in good physical condition.

Appellant appeared with Brian at the fire station at 5:30 p.m. It was an extremely cold, rainy day, and Brian wore only diapers. He was suffering from hypothermia. Both appellant and Brian had an odor of alcohol about them. Blood was coming out of Brian’s mouth, and his vital signs were imperceptible. Appellant, who appeared unconcerned, stated that the child had fallen out of a door. CPR was administered. The taste of alcohol was on the child’s lips.

At that time, the child had abrasions and bruises to his face, forehead, and eyelids; bruising and bleeding under the skin of both outer ears; bruises on his chest; bruises to the abdomen in the shape of a handprint; bruises to his back, including several that were loop-shaped; bruises on his buttocks; lacerations to his lips; bent and missing teeth; and lacerations and bruising to his head behind his ear. The injuries appeared to have been inflicted at different times.

Due to the severity of the child’s injuries, he was transferred from the fire station to Humana Hospital at 5:45 p.m., and from there to the Medical College of Georgia Hospital. Child abuse was suspected by the personnel at these facilities, and the police were summoned. When Brian arrived at Humana, he did not have spontaneous respiration, his heart rate was slow, there was no blood pressure, and his body temperature was 90 degrees. When he arrived at Medical College of Georgia, he was in a deep coma and there was no evidence of neurologic function. He was given blood pressure medication and was breathing with the assistance of an ambu-bag.

Attending physicians testified that his critical condition was caused by internal abdominal injuries and extensive injuries to the head and brain, resulting in a loss of blood which in turn caused the respiratory and heart problems. The physicians treating Brian and pathologists, including the one performing the postmortem examination and autopsy, testified that Brian had suffered subdural and subarachnoid hemorrhages and brain edema as a result of blunt force trauma to the head, thereby resulting in the child’s death on January 17.

Consistent with his trial testimony, appellant initially stated to the police that after he arrived at his trailer, he put Brian on the ground so that he could walk to the door. In nudging Brian onward, he pushed him too hard and Brian fell and began bleeding a good bit. Appellant took him into the trailer and cleaned him up. Subsequently, appellant heard dogs barking and opened the. front door to let his Doberman Pinscher out. In the meantime, Brian had positioned himself in front of the door, and the dog knocked him down a-set of steps which were no more than two-and-one-half feet above ground. Appellant went to the aid of Brian, but he was unconscious and could not be revived, so he took Brian to the fire station. The police went to appellant’s trailer after he gave this statement. His dog was tied to a table rather than running loose on the outside, as appellant had stated.

After giving this version of events to police, appellant made a statement admitting that he had abused Brian. He stated that Brian “headed for the front door and fell down a couple of times, and I pushed him a couple of times, and that’s how he hurt his face. And when we went to, he did fall out the front door and fall onto the bottom steps, that’s how he hurt his face, also, that, that helped it.” Appellant also admitted that he “popped” Brian on his chest causing bruises and that he had caused “the print on his stomach.”

1. Appellant contends that the trial court erred in refusing to grant a directed verdict of acquittal on the homicide charge. Appellant bases this contention on the fact that the medical experts could not positively state that the child’s fatal head injuries were caused by intentional conduct rather than an accidental fall while the child was under appellant’s care and custody. Also, there was evidence that on prior occasions Brian had been physically abused by Robin and her mother.

On this basis, appellant argues that his conviction cannot stand under OCGA § 24-4-6, since it is wholly dependent on circumstantial evidence and the facts do not exclude every reasonable hypothesis save that of guilt. To the contrary, the conviction, as opposed to an element of the crime, is not wholly dependent on circumstantial evidence. “ ‘[Wjhere the defendant makes incriminatory statements after the (victim’s death), the case is not one depending entirely upon circumstantial evidence.’ [Cits.]” Stewart v. State, 163 Ga. App. 735, 737 (1) (295 SE2d 112) (1982); also see Yarborough v. State, 183 Ga. App. 198 (1) (358 SE2d 484) (1987).

Comparing the child’s condition at the time appellant took him from his mother and shortly thereafter, with his condition at the time he and appellant appeared at the fire station, and considering the acts of abuse admitted by appellant, the evidence, when viewed most favorably to the verdict, was sufficient to have authorized a rational trier of fact in finding beyond a reasonable doubt that appellant caused the child’s death. Adams v. State, 255 Ga. 356, 357 (1) (338 SE2d 860) (1986). There was evidence that the commission of unlawful acts was “the cause in fact of the victim’s death.” Gulf Oil Corp. v. Stanfield, 213 Ga. 436, 438 (99 SE2d 209) (1957) (cited in Burns v. State, 240 Ga. 827, 828 (1-2) (242 SE2d 579) (1978)). “The weight of the evidence and credibility of the witness [es, including defendant] are for the jury’s determination. [Cit.]” Armour v. State, 154 Ga. App. 740 (270 SE2d 22) (1980).

2. Appellant next contends that the trial court erred in excluding the testimony of a witness that on Monday, January 12, five days before the incident on trial, appellant had stated to her and her husband “that this little boy, Brian, had bruises all over his buttocks and up his back, and he did not know what to do about it. And me and my husband told him that he needed to talk to someone about it.” The witness and her husband were permitted to testify that he then appeared concerned about the little boy.

Appellant argued at trial that this hearsay testimony showed that his state of mind regarding the child was one of caring and concern. The court rejected this testimony under the “ ‘well-settled principle of law that self-serving declarations, when made by the accused either before or after the time of the commission of the alleged offense, are not admissible.’ [Cits.]” Smith v. State, 144 Ga. App. 294 (241 SE2d 14) (1977). Appellant also argued for admission under OCGA § 24-3-2, not as hearsay, but as original evidence explaining his conduct and showing his state of mind.

Decided February 10, 1992

Reconsideration denied March 2, 1992

Fleming, Blanchard & Bonner, John Fleming, Danny L. Durham, Charles R. Sheppard, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Assistant District Attorney, for appellee.

Since appellant sought to admit the testimony in order to prove the truth of the matters asserted therein rather than the fact that he made such statements, it was inadmissible hearsay under the line of cases exemplified by Smith. See Kerrethers v. State, 169 Ga. App. 832, 835 (2) (315 SE2d 46) (1984); see generally Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982).

Appellant also argues that the exclusion pursuant to a per se exclusionary rule violated his constitutional right to present exculpatory evidence. However, his failure to raise below this argument, or the argument that the testimony was admissible as the res gestae, precludes their consideration. See Galfas v. Ailor, 206 Ga. 76 (1) (55 SE2d 582) (1949); Price v. State, 202 Ga. 205 (1) (42 SE2d 728) (1947). The court gave express opportunity to raise all grounds.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


text:
    A91A2265.
    GABEL v. REVELS et al.
    (416 SE2d 103)
   Beasley, Judge.

Revels sued Gabel in magistrate court, seeking- damages for defendant’s having wilfully trespassed onto their property and cut down trees. Defendant responded that the trees were on his property and counterclaimed for the cost of obtaining a property survey needed to defeat plaintiffs’ claim. The magistrate court entered judgment in favor of defendant on plaintiffs’ claim and in favor of plaintiffs on defendant’s counterclaim.

Plaintiffs appealed to state court, which transferred the case to superior court as a companion to another case plaintiffs had filed against defendant there. On April 24, 1991, the superior court entered a “final order” in the consolidated actions, decreeing that the common boundaries be fixed as according to a court-ordered survey. It dismissed all remaining claims of the parties against each other by reason of a settlement.

On July 9, plaintiffs moved to re-open these cases on the ground that they had not in fact agreed to settle their claim for damages. Defendant replied that at the hearing on the consolidated actions, the court stated that the parties had settled plaintiffs’ claim for damages, and that plaintiffs’ counsel responded affirmatively. Nonetheless, defendant appeals from the grant of the motion.

The legislative intent of enacting OCGA § 9-11-60 was “to make a comprehensive determination of procedures for the attacks on judgments.” Payne v. Shelnutt, 126 Ga. App. 598, 599 (191 SE2d 487) (1972). In 1986, the legislature reduced the three methods for direct attack which existed at the time of Payne to two, eliminating the availability of a complaint in equity for this purpose. Ga. L. 1986, p. 294, § 1.

Plaintiffs’ motion to re-open, based upon the failure to adjudicate a material issue, is in essence a motion for new trial under OCGA § 9-11-60 (c), which must be based upon an intrinsic defect not appearing upon the face of the record or pleadings. See West v. West, 200 Ga. 115 (2) (35 SE2d 914) (1945); former Code Ann. § 110-703. Plaintiffs’ waiver of their damage claim does appear on the face of the record. Moreover, motions for new trial must be brought within 30 days of the entry of the judgment. OCGA §§ 9-11-60 (f); 5-5-40 (a). Plaintiffs’ motion was too late.

Since the motion to re-open was filed and acted upon after expiration of the term of court at which the final judgment was rendered, the trial court no longer had inherent authority over a case within the breast of the court. See Pekor v. Clark, 236 Ga. 457, 458 (1) (224 SE2d 30) (1976). Plaintiffs were not seeking to set aside the judgment under OCGA § 9-11-60 (g) on the ground that counsel was not notified of the court’s entry of the judgment. See Cambron v. Canal Ins. Co., 246 Ga. 147 (1) (269 SE2d 426) (1980).

The next argument advanced in support of the order is that the trial court had discretion to act on the motion to re-open under OCGA § 9-11-6 (c). It provides: “The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a term of court, except as otherwise specifically provided by law. The continued existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action which has been pending before it, except as otherwise specifically provided by law.” See also OCGA § 9-11-6 (b); Jones v. Howard, 153 Ga. App. 137, 140 (1) (264 SE2d 587) (1980). However, it is specifically provided by law that a motion seeking the relief sought by plaintiffs must be filed within 30 days of entry of the judgment, and at the time the court acted on that motion the case was no longer pending. OCGA § 9-11-6 (c) is inapplicable.

Decided February 10, 1992

Reconsideration denied March 2, 1992.

W. Clinton Rhodes, for appellant.

Jordan & Jordan, H. Rhodes Jordan, for appellees.

Judgment reversed.

Carley, P. J., and Judge Arnold Shulman concur.