text:
    A92A1031.
    GEORGIA MUTUAL INSURANCE COMPANY v. GARDNER et al.
    (422 SE2d 324)
   McMurray, Presiding Judge.

This appeal arises from an action for declaratory judgment brought by the appellant Georgia Mutual Insurance Company (“Georgia Mutual”) seeking a determination with respect to its obligation to defend appellee Roger C. Gardner in a lawsuit brought against him by the other named appellees for damages resulting from an automobile collision on March 12, 1989. The facts are not in dispute; the only issue for review is the trial court’s finding that the notice requirements of OCGA § 33-22-13 (c) apply to both the notice of intent to cancel and the notice of cancellation, and that Georgia Mutual did not properly cancel a policy of insurance issued to Gardner prior to the collision.

On December 7, 1988, Georgia Mutual issued a policy insuring an automobile owned by Gardner. At the same time, Gardner executed a premium finance agreement with GMIC Premium Finance Company (“GMIC”) which provided that the first payment was due on January 7, 1989, with three monthly payments due thereafter on the first day of each successive month until paid in full. The premium finance agreement contained the following power of attorney provision: “The named insured hereby irrevocably appoints [GMIC] Attorney-in-Fact with full authority, in the manner prescribed by applicable laws, to cancel the Policies listed, or any renewal or rewrite thereof, to receive all sums assigned to the Company, and to execute and deliver on behalf of the undersigned all documents, forms and notices relating to the Policies listed in furtherance of this agreement. This power of attorney is coupled with an interest and cannot be revoked to the extent of the authority granted herein.” The premium finance agreement also provided that in the event of default of payment of any installment due or the breach of any other term, unless cured within ten days after GMIC mailed written notice of its intent to cancel the policy to Gardner at the address shown therein, GMIC could request cancellation of the policy by Georgia Mutual.

Gardner failed to make the second payment due on February 7, 1989. A ten-day notice of intent to cancel was mailed to Gardner and his insurance agent on February 15, 1989, by GMIC. At the expiration of the ten-day period from the date of mailing, pursuant to the power of attorney provision of the agreement, GMIC mailed a notice of cancellation on behalf of Gardner to Georgia Mutual. Gardner was mailed a notice of cancellation that same date, which was identified by the “PORS” list of notices of cancellation maintained by GMIC and signed by the employee who personally mailed them, and to which was attached a United States Postal Service certificate of bulk mailing. The policy of insurance with Georgia Mutual was canceled effective March 2, 1989, pursuant to the provisions of the premium finance agreement.

Following the collision on March 12, 1989, in which the parents of six minor children were killed, the children through their guardian and administratrix of the estate placed a demand on Georgia Mutual for coverage when Gardner, who did not know of the cancellation, told her the policy was in effect. Admitting that the value of the lives of the deceased parents exceeded the policy limits, Georgia Mutual filed for declaratory judgment. All parties moved for summary judgment, which was granted against Georgia Mutual when the court found that GMIC had not properly canceled the policy on behalf of Gardner because it did not obtain a receipt from the United States Postal Service as required by OCGA § 33-22-13 (c) when it mailed the notice of intent to cancel to Gardner. Held:

OCGA § 33-22-13 provides in pertinent part as follows:

“(a) When a premium finance agreement contains a power of attorney enabling the premium finance company to cancel any insurance contract or contracts listed in the agreement, the insurance contract or contracts shall not be canceled by the premium finance company unless the cancellation is effectuated in accordance with this Code section.

“(b) Not less than ten days’ written notice shall be mailed to the insured of the intent of the premium finance company to cancel the insurance contract unless the default is cured within such ten-day period. A copy of said notice shall also be sent to the insurance agent or insurance broker indicated on the premium finance agreement.

“(c) After expiration of such ten-day period, the premium finance company may thereafter in the name of the insured cancel such insurance contract or contracts by mailing or delivering to the insurer a notice of cancellation; and the insurance contract shall be canceled as if the notice of cancellation had been submitted by the insured himself, but without requiring the return of the insurance contract or contracts. The premium finance company, when mailing or delivering notice to the insurance company to cancel the policy, shall simultaneously mail notice to the insured notifying him of the action taken. Such notice to the insured shall contain the date and time the policy is to be canceled, which date shall not be prior to the date of mailing of ,such notice, and shall inform the insured that any payment received after the mailing or delivery of notice to the insurance company to cancel the policy will not reinstate the policy. The notice may contain information to the effect that the premium finance company will make a request to the insurance company to reinstate the policy. Language sufficiently clear and specific so that a person of average intelligence can understand the action being taken by the premium finance company shall be used. The notice to the insured required, by this Code section shall be mailed to the last address of record of the insured and shall be dispatched by at least first-class mail and receiving the receipt provided by the United States Postal Service or such other evidence of mailing as prescribed or accepted by the United States Postal Service.

“(d) All statutory, regulatory, and contractual restrictions providing that the insurance contract may not be canceled unless notice is given to a governmental agency, mortgagee, or other third party shall apply where cancellation is effected under this Code section. . . .” (Emphasis supplied.)

The appellees contended, and the trial court agreed, that the policy was not canceled in accordance with the law because only the notice of cancellation was supported by the required proof of mailing by the United States Postal Service, whereas OCGA § 33-22-13 mandates proof of mailing for the notice of intent to cancel as well, which was not obtained. Georgia Mutual argued on its motion for summary judgment, and now on appeal, that the notice required under OCGA § 33-22-13 (c) is limited to that subsection only and does not apply to OCGA § 33-22-13 in its entirety, so that it was in compliance with the statute. However, the cases upon which it relies in support of this position are inapposite: either they do not involve a premium finance agreement governed by OCGA § 33-22-13, or there was no denial that the required proof of mailing procedures was complied with, only that the insured failed to receive the notice. See, e.g., State Farm &c. Ins. Co. v. Harris, 177 Ga. App. 826 (341 SE2d 472) (1986).

“ ‘[I]n construing any section of the Code, we must treat it as a single statute forming one homogeneous and consistent body of laws, and each Code section is to be considered in explaining and elucidating every other part of the common system to which it belongs.’ [Cits.]” Huntsinger v. State, 200 Ga. 127, 130 (1) (36 SE2d 92) (1945). “All analysis must begin with the statutory language itself. [Cit.]” Blanchard v. Blanchard, 261 Ga. 11, 12 (401 SE2d 714) (1991). “ ‘Statutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation. (Cit.)’ Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186) (1987).” Georgia Public Svc. Comm. v. Charles H. Turner, Inc., 200 Ga. App. 144, 145 (1) (407 SE2d 113) (1991). “ ‘In the absence of words of limitation, words in a statute should be given “their ordinary and everyday meaning.” [Cit.]’ [Cits.]” Management &c. Group/Southeast v. United &c. Employee Programs, 194 Ga. App. 99, 101 (2), 102 (389 SE2d 525) (1989).

The trial court found here that since the ordinary interpretation of the words “this Code section” includes the entire Code section and not just the subsection in which the phrase appears, the notice required under the statute applies to all subsections of OCGA § 33-22-13 and is not restricted solely to subsection (c). We agree, noting as did the trial court, that there are at least seven statutes codified under Title 33 which mention requirements of specific subsections within the context of the rest of the statute. OCGA § 33-22-13 refers to “this Code section” in three of its four subsections, whereas OCGA § 33-22-14 (b) (4), dealing with the disposition of unearned premiums upon cancellation of financed insurance contracts, specifies that the failure to tender any unearned premium “as prescribed in paragraph (3) of this subsection shall be subject to the penalties prescribed in paragraph (3) of subsection (c) of [OCGA §] 33-24-44.” OCGA § 33-22-14 (c) then states that failing to refund any surplus payments or furnish reports requested “under subsection (b) of this Code section shall not invalidate a notice of cancellation given in accordance with this chapter.”

The legislation consistently refers to the particular subsection when the topic is limited thereto, so when the statute alludes to “this Code section” it should be construed to apply to all the subsections contained therein. Thus, since the language “notice to the insured required by this Code section” is not restricted to just notice of cancellation under subsection (c), it most logically means notice under any provision of OCGA § 33-22-13. Subsection (a) mandates that the policy is not canceled if the cancellation is not done in accordance with “this Code section.” The statutory cancellation by a premium finance company involves a two-step process whereby the finance company is first required to notify the insured of the finance company’s intent to cancel for nonpayment of the premiums and the insured is given a ten-day period to cure the default; then if the insured does not pay he must be notified that the company has elected to cancel the policy. There is no justifiable reason for tbe statute to require the mailing of notice to be shown by a proper receipt issued by the United States Postal Service after the finance company has elected to cancel the policy and it is too late for the insured to cure the default, and not require it for the notice of intent to cancel which is an integral part of the rights of the insured under the statute.

“We thus come to the well-established position of the insurance company in the present posture of the case: as the movant for summary judgment its supporting papers are construed most strongly against it [cit.]; ‘the language of the statute must be strictly construed’ [cit.]; and the ‘company has the burden of proving strict compliance with the cancellation provisions . . . (and) any ambiguities of the notice must be resolved in favor of the insured. . . .’ [Cit.]” Freeman v. Government &c. Ins. Co., 151 Ga. App. 161, 163 (259 SE2d 165) (1979). Under this standard of review, we find it abundantly clear that the notice required by OCGA § 33-22-13 applies to all subsections of the statute and is not limited to subsection (c) alone; and since proper notice was not given of the intent to cancel, the cancellation was not effectuated in accordance with the statute. It follows that the trial court correctly granted summary judgment in favor of the appellees.

Decided September 11, 1992.

Smith, Gilliam & Williams, Steven P. Gilliam, Catherine H. Hicks, Bradley J. Patten, for appellant.

Abbott & Abbott, Anthony H. Abbott, Eichholz & Associates, Benjamin S. Eichholz, for appellees.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A92A1075.
    DAVIS v. WELCH.
    (422 SE2d 323)
   Birdsong, Presiding Judge.

This is an appeal by the defendant father Robert Earl Davis from a jury award of $25,000 to the plaintiff mother in her suit to recover moneys expended in child support for a child born in 1973. In 1988, appellee signed a consent order agreeing to pay support in the amount of $35 per week. In January 1989, the trial court approved an order whereby the parties agreed appellee was the father of the child and that he was to repay public assistance benefits and pay support of $35 per week. Plaintiff’s suit was couched as an action for damages, punitive damages and attorney fees. The jury heard the case as it was submitted by the parties. Appellee filed a direct appeal from the jury’s verdict, challenging only the sufficiency of the evidence to support the verdict and contending the verdict is contrary to law and justice.

OCGA § 5-6-35 (a) (2), as amended, provides that an application for discretionary appeal must be filed in appeals from “judgments or orders in divorce, alimony, child custody, and other domestic relations cases including, but not limited to, granting or refusing a divorce or temporary or permanent alimony, awarding or refusing to change child custody, or holding or declining to hold persons in contempt of such alimony or child custody judgment or orders.” (Emphasis supplied.) Under the language specifying “other domestic relations cases," matters involving child support are included in this class of cases for which there is no right of direct appeal and as to which an application for discretionary appeal must be filed. See, e.g., Hunt v. Carter, 261 Ga. 259 (404 SE2d 121); Byrd v. Ault, 260 Ga. 893 (401 SE2d 690). Regardless how this case was couched or pursued, it involves collection of child support moneys and it is a domestic relations matter. An application for discretionary appeal was required for an appeal of the award but none was filed. Consequently, we are without jurisdiction of this appeal, and it is dismissed. See Granberry v. Granberry, 260 Ga. 539 (399 SE2d 72).

Decided September 11, 1992.

James E. Greene, for appellant.

James P. Blalock, for appellee.

Appeal dismissed.

Beasley and Andrews, JJ., concur.


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A1320.
    BAILEY v. BARTEE et al.
    (422 SE2d 319)
   Birdsong, Presiding Judge.

This is an appeal of the judgment of the superior court upholding the verdict of the jury entered in favor of appellees/defendants, and of the denial of appellant’s motion for new trial. Issues unrelated to this appeal previously were addressed in the companion case of Bailey v. Hall, 199 Ga. App. 602 (405 SE2d 579).

This case arises out of a collision at an intersection controlled by a traffic signal, between a vehicle driven by appellant’s former husband in which appellant was a passenger and a vehicle driven by appellee Roger Bartee. Held:

1. Appellant asserts the trial court erred by failing to instruct the jury regarding the provisions of OCGA § 40-6-71, pertaining to vehicles turning left at intersections. The trial court refused to give the requested instruction but did charge the jury as to selected provisions of OCGA §§ 40-6-20 and 40-6-21.

Appellees assert and we agree that pursuant to the precedent of Corley v. Harris, 171 Ga. App. 688 (3) (320 SE2d 833), the trial court did not commit instructional error when it charged the jury on OCGA § 40-6-21, rather than on OCGA § 40-6-71. Corley v. Harris, supra at 689 (3), holds that the pertinent provisions of OCGA § 40-6-21 “specifically concerns vehicular traffic at intersections regulated by a traffic light,” while OCGA § 40-6-71 “pertains to vehicular traffic turning, onto either an alley, private road or drive, or another public road, at an intersection unregulated by a traffic light”; accordingly, an instruction on OCGA § 40-6-71 is deemed inappropriate in cases, such as the one at bar, involving vehicular traffic turning at an intersection regulated by a traffic light.

Appellant, however, argues that the ruling in Corley v. Harris, supra, should be overruled, particularly in light of the subsequent case of Branch v. State, 175 Ga. App. 696 (334 SE2d 24). Compare Thompson v. Hill, 143 Ga. App. 272 (1), (3) (238 SE2d 271). Appellees argue that this court never addressed the issue raised in the case at bar in Branch v. State, supra, and that the reference to OCGA § 40-6-71 in Branch was simply dictum. While this court’s application of OCGA § 40-6-71 cannot convincingly be explained as dictum, the facts and issues addressed in Branch clearly are distinguishable from those in this case. Likewise, we find Thompson v. Hill, supra, to be factually distinguishable. Corley v. Harris, supra, however, is not distinguishable from the issues or facts confronting us and is therefore deemed to be controlling. Accordingly, we find the trial court did not err in its failure to charge as to the provisions of OCGA § 40-6-71.

While OCGA § 40-6-21 could be drafted to provide express statutory guidance to a prospective turning motorist confronted by a green or steady yellow signal when an approaching automobile is beyond the intersection and yet so close as to constitute an immediate hazard, this is a matter within the prerogative of the General Assembly.

2. Appellant asserts the trial court erred in denying his motion for new trial, as inter alia the jury verdict is contrary to the evidence and contrary to the law as charged by the trial court.

Regarding the asserted failure of the trial court to charge as to OCGA § 40-6-71, see Division 1 above. Appellant has enumerated no other charging errors.

Appellant argues inter alia that the record fails to establish a lack of negligence on the part of Roger Bartee as to the manner in which he attempted to negotiate the left turn. The burden of proof rested upon appellant/plaintiif; by its verdict the jury inherently concluded appellant failed to carry its burden in the manner required by law and as addressed in the charges of the trial court. The record establishes that at the time and place of the accident the streets were wet and the speed limit was 25 miles per hour. Ms. Benton, a witness who was in the car directly behind Roger Bartee, testified that “we pulled up to the intersection and the light was green, and Mr. Bartee went out into the intersection and . . . was waiting for oncoming traffic. When the light turned yellow, Mr. Bartee waited until the . . . oncoming traffic stopped, and then he proceeded to turn left onto Slappey Boulevard. ... A car came very fast. . . from Pine onto Dawson Road, and struck Mr. Bartee on the right side of his car.” Appellant testified that she was reading a book as the car driven by her husband approached the intersection, and that she looked up and saw Mr. Bar-tee’s car right in front of them only after her husband warned: “Hold on.” Mr. Bartee testified that after he stopped in the intersection and the opposing traffic had stopped and come to a halt, he could see three or four car lengths down the northernmost lane and could see nothing coming as he began to make his turn. Mr. Hall, appellant’s former husband, testified he was driving “roughly” 37-38 miles per hour as he approached the intersection, he could not see Mr. Bartee sitting in the intersection, and he did not see Mr. Bartee’s car “until he pulled out.” Mr. Black, who was the second car back in another lane traveling in the same direction as Mr. Hall, testified that the Hall car passed him going about 40 miles per hour' and he realized Hall’s car was going to strike the Bartee car, which was then appearing to be making a left turn. Thus, for example, the jury could reasonably infer from Mr. Hall’s testimony, coupled with the testimony of Mr. Bartee, that it was physically impossible for the drivers of these two cars to see each other until after Mr. Bartee’s car had already “pulled out” to negotiate the turn.

Issues of negligence, including, when applicable, the related issues of assumption of the risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence and comparative negligence, ordinarily are matters to be resolved before a jury. See Thompson v. Crownover, 259 Ga. 126 (5) (377 SE2d 660); Soto v. Roswell Townhomes, 183 Ga. App. 286, 288 (358 SE2d 670). Based on the posture of this record, we cannot find as a matter of law that Roger Bartee was negligent. The issue of his negligence clearly was contested, and the jury is the exclusive arbiters of contested questions of fact. Taylor v. State, 2 Ga. App. 723, 729 (59 SE 12) (province of jury as exclusive arbiters of fact is holy ground). An appellate court does not weigh the evidence, but determines sufficiency; neither does it determine witness credibility. Locke v. Vonalt, 189 Ga. App. 783, 785 (1) (377 SE2d 696); Horney v. Lawrence, 189 Ga. App. 376 (3) (375 SE2d 629). Moreover, “[o]n appeal an appellate court is bound to construe the evidence in support of the verdict and judgment [and every permissible presumption and inference must be drawn in favor thereof; and, after apply the foregoing rule], if there is some evidence to support the verdict we will uphold the judgment.” Locke v. Vonalt, supra; Worn v. Sea-Cold Svcs., 135 Ga. App. 256 (3) (217 SE2d 425). There exists such competent evidence of record in this case.

Judgment affirmed.

Andrews, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I do not agree with the statement in Corley v. Harris, 171 Ga. App. 688, 689 (3) (320 SE2d 833) (1984), limiting the applicability of OCGA § 40-6-71, insofar as intersections are concerned, only to those unregulated by a traffic light.

By giving charge OCGA § 40-6-21 (a) (1) (A) verbatim, the court instructed the jury that traffic turning right or left on a green signal “shall yield the right of way to other vehicles.” The court also charged, substantially verbatim, subsections (2) (A) and (3) (A) to describe the meaning of a steady circular yellow signal and a steady circular red signal.

Neither of those mention turns or the right-of-way. As stated in the majority opinion, the evidence was that Bartee was executing the turn on a yellow signal. As instructed by the court, yellow warns traffic that green is being terminated or that red follows immediately “when vehicular traffic shall not enter the intersection.”

The purpose of OCGA § 40-6-21 is to designate the meaning of colors displayed in traffic lights so as to control vehicular movement. Its primary focus is not on the specific standard when one is turning left but merely says that traffic proceeding straight ahead or turning right or left shall yield the right-of-way. OCGA § 40-6-71 expressly governs vehicles turning left. It includes those within an intersection and describes more particularly to which vehicles the right-of-way must be yielded, i.e., those “within the intersection or so close thereto as to constitute an immediate hazard.” It does not limit this only to intersections “unregulated by a traffic light,” a limitation imported into the statute by the court in Corley.

The word “intersection” does not need further amplification by the legislature, as the majority suggests, in order to embrace intersections uncontrolled by any traffic device or signal, intersections controlled by stop or yield signs, and/or intersections controlled by traffic lights. “Intersection,” without words to modify it, includes them all. It applies to vehicles turning left on a green light, particularizing what is meant by “the right of way” in OCGA § 40-6-21 (a) (1) (A), and to vehicles (such as Bartee’s) turning left on a yellow light, which OCGA § 40-6-21 (a) (2) (A) does not even address.

Branch v. State, 175 Ga. App. 696 (334 SE2d 24) (1985), applied OCGA § 40-6-71 to a vehicle turning left at a green light at the same time an oncoming vehicle made a left turn. This was the foundation for an officer’s reasonable articulable suspicion of wrongdoing to justify a stop. The “wrongdoing” suspected was a violation of OCGA § 40-6-71. That decision is not distinguishable in the relevant aspect from this case. Nor is there a relevant factual distinction between this case and Thompson v. Hill, 143 Ga. App. 272 (238 SE2d 271) (1977). The court applied the predecessor to OCGA § 40-6-71 to a left turn at a traffic-light controlled intersection.

Appellant enumerates as error the failure to give in charge OCGA § 40-6-71. It does not appear that the court “refused,” as the majority states, but it did fail to do so. After the jury was charged, appellant stated that he had requested this charge and that he did not hear it given. The court responded that it gave everything gone over the day before, in what apparently was the charge conference, and did not know whether it gave this charge or not. Neither did appellant. That is where the matter was left. Appellant did not request that the charge be reviewed to be sure it was included but rather merely left the matter unresolved. For this reason, I conclude that appellant abandoned his objection. See generally Dempsey v. State, 162 Ga. App. 390 (2) (291 SE2d 449) (1982).

Decided September 11, 1992.

Beauchamp & Associates, William Eckhardt, for appellant.

Cannon & Meyer Von Bremen, William E. Cannon, Jr., Michael S. Meyer Von Bremen, for appellees.


text:
    A92A1327.
    HAND v. THE STATE.
    (422 SE2d 316)
   Birdsong, Presiding Judge.

Michael Hand appeals his judgment of conviction of two counts of aggravated assault, one count of possession of a firearm by a convicted felon, and the sentence. He enumerates as error jury misconduct and inadequacy of his defense counsel at trial. Held:

1. Appellant argues that a juror’s misconduct requires the granting of the motion for new trial. He asserts that, during the trial, a juror engaged in misconduct by having an unauthorized, communication with appellant’s wife in which the juror inquired whether the shooting was the result of a drug transaction gone bad, and the juror told her not to worry because it should be self-defense. Appellant’s wife testified at the motion for new trial hearing that she reported this conversation to her husband and informed him that she “wasn’t going to testify.” Her husband’s counsel never contacted her about the incident. Trial defense counsel admitted that appellant had informed him of the incident, that the incident was discussed between them, and that appellant was informed the matter could be brought to the trial court’s attention, but stated he did not want to bring the issue to the court’s attention as the juror was his friend. Thus, a trial decision was made in which appellant participated not to seek a challenge of the juror.

The trial judge stated he does not believe the testimony of defendant’s wife about the juror misconduct to be true. As no evidence of jury misconduct was introduced “other than the untrue testimony of the defendant’s wife,” the trial judge found, “therefore, there is no believable evidence of juror misconduct,” and the court thus “finds that no juror misconduct took place.” In addition to the trial court’s personal observation of the witness’ demeanor on the stand, the witness’ status as spouse of appellant, and the witness’ current incarceration for a conviction of DUI, we cannot conclude there exists inadequate evidence of record to support the trial court’s findings regarding the lack of credibility of the witness and the lack of weight attributed to her testimony. There having been no incident of juror misconduct, the trial court did not err in denying the motion for new trial based on this particular ground.

Assuming arguendo, the incident had occurred as asserted by' appellant, we nonetheless would find that appellant cannot claim the existence of reversible error on appeal. This case is factually distinguishable from Lockridge v. State, 260 Ga. 528 (397 SE2d 695) and Evans v. State, 196 Ga. App. 1 (395 SE2d 342). In this case, the evidence is uncontested that the incident of alleged juror misconduct, whether untrue or true, was reported to trial defense counsel by appellant during trial, that counsel and appellant discussed the matter, that appellant desired not to raise the issue with the trial court or attempt to have the juror challenged, and that a trial decision was thus made, clearly as part of the defense’s trial tactics, not to raise the matter with the court during trial. “In order for the misconduct of a juror during the trial of a criminal case in which he is engaged to be cause for a new trial, it must affirmatively appear that the accused and his counsel did not know of the misconduct until after the verdict.” Josey v. State, 148 Ga. 468 (1) (96 SE 1041), and cases cited therein; accord Brooks v. Camak, 130 Ga. 213, 217 (3) (60 SE 456). “[T]he defendant must bring the misconduct of the jury to the knowledge of the court, if known; and if not brought when known, it will be held in contemplation of the law to have been waived. This ground of the motion [for new trial] . . . should have been brought at once to the attention of the court. [Appellant] cannot remain silent and take the chances of an acquittal for his client, and upon failure, make it a good ground for a new trial.” Lyman v. State, 69 Ga. 404, 407 (4); accord Kirk v. State, 73 Ga. 620 (3); Salter v. Glenn, Duffield & Co., 42 Ga. 64, 82 (2) (judgment affirmed even though it was expressly observed that the misconduct in the case, although explained, was still uncertain as to its effect upon the finding); compare Roberson v. State, 15 Ga. App. 545, 551 (3) (83 SE 877) (observing that, absent a showing the prevailing party or some party directly interested was a party to the irregularity, waiver will apply not only where misconduct or irregularity was known to movant, but also where it did not affirmatively appear from the record that the misconduct or irregularity was unknown); see also Thacker v. State, 226 Ga. 170, 181 (173 SE2d 186), citing Lyman, supra. Appellant, knowing of the alleged juror misconduct during trial and by his trial tactic of electing not to report the matter promptly to the trial court, has waived this issue on appeal.

2. Appellant asserts inadequacy of his trial defense counsel. Except for certain circumstances not here applicable, a claim of inadequacy of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) must meet a two-part test. See generally Wilson v. State, 199 Ga. App. 900 (406 SE2d 293). First, the defendant must show that counsel’s performance was deficient. Strickland, supra at 687. Secondly, prejudice must be established by showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

Appellant does not assert that his trial defense counsel’s failure to report the jury misconduct during trial was deficient professional conduct on his part. Accordingly, this issue has been abandoned. Court of Appeals Rule 15 (c) (2). Finally, any such decision was the product of a conscious and deliberate trial decision. See Garrett v. State, 196 Ga. App. 872, 873 (1) (397 SE2d 205). And, “ ‘[t]he mere fact that appellate counsel would have tried the case differently does not show ineffectiveness. (Cit.) Errors of judgment and trial tactical errors do not constitute ineffectiveness.’ ” (Emphasis supplied.) Ranalli v. State, 197 Ga. App. 360, 365 (5) (398 SE2d 420); see also Williams v. State, 202 Ga. App. 494, 495 (1) (414 SE2d 716) (even if trial tactics are flawed, it is not sufficient to establish ineffectiveness).

We further find that it was not deficient professional conduct to not visit the crime scene and attempt to videotape a re-enactment of the incident. Without deciding when if ever a counsel must visit the crime scene or attempt to re-enact an incident, we note that in this case trial defense counsel was quite familiar with the area where the incident occurred. Moreover, there has been no showing that a reenactment of the alleged incident at a later date would have even been admissible at trial.

We also find that there exists no magic amount of time which a counsel must spend in preparation for trial in order to provide a client with adequate counsel. Each case must be judged upon its own circumstances and in light of its own degree of complexity.

However, pretermitting the issue of whether any of the allegations of inadequate counsel did in fact constitute deficient professional conduct within the meaning of Strickland, supra, is the issue of whether appellant has established by a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. We conclude, both in view of the overwhelming evidence establishing appellant’s guilt beyond a reasonable doubt and, independently, based on the affirmative evidence of record relevant to alleged claim of inadequacy of counsel, that no reasonable probability exists that the result of the proceedings would have been different within the meaning of the second prong of the Strickland test. Review of the transcript of the motion for new trial hearing reveals that this case is factually distinguishable from Cochran v. State, 262 Ga. 106 (2) (414 SE2d 211). This case does not involve a “total failure of trial preparation” such as condemned in Cochran, supra, and Ross v. Kemp, 260 Ga. 312 (393 SE2d 244).

Decided September 11, 1992.

Gary P. Bunch, for appellant.

Peter J. Skandalakis, District Attorney, for appellee.

Finally, we conclude that, “ ‘ “ ‘[a] trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. (Cit.) The trial court’s finding in the instant case is not clearly erroneous. . . .’ ” ’ ” Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178); accord Whitner v. State, 202 Ga. App. 608, 609 (415 SE2d 52).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A92A1521.
    FREELAND v. BAKER.
    (422 SE2d 315)
   McMurray, Presiding Judge.

Plaintiff Michael Baker brought suit against Kenneth Morris Freeland seeking damages for battery. The jury awarded Baker $25,000 and judgment was entered accordingly. Freeland appeals following the denial of his motion for a new trial. In his sole enumeration of error, Freeland contends the trial court erred in permitting the jury to view a videotape of an arthroscopic surgical procedure performed on Baker’s shoulder.

Dr. Eugene B. Pendleton performed the surgery on Baker’s shoulder. He testified, via deposition, that he made a videotape recording of the surgery; that the recording accurately portrays the events that took place during the surgery; and that his voice is heard on the videotape because he described the procedures as he performed them. Dr. Pendleton also testified that he videotapes and narrates every surgery that he performs with an arthroscope.

Freeland objected to the introduction of the videotape in evidence on the ground that it constituted hearsay. The trial court overruled the objection, holding the videotape was admissible as a business record. Held:

Decided September 11, 1992.

Billy W. Crecelius, Jr., for appellant.

Patrick J. Gibbs, Harold K. Corbin, for appellee.

OCGA § 24-3-14 (b) provides: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.” In light of the legislature’s admonition that OCGA § 24-3-14 is to be liberally construed, OCGA § 24-3-14 (d), we have no hesitation in concluding that the videotape was admissible as a business record. “The Georgia statute does not prescribe the form or type of record to be admitted in evidence, providing merely for the admissibility of any ‘writing or record, whether in the form of an entry in a book or otherwise . . . ,’ and vesting a wide discretion in the trial judge. [Cit.] (Emphasis supplied.) Moreover, the sanction that the section be liberally interpreted and applied was expressly reiterated by a resolution of legislative intent. (Ga. L. 1958, p. 542.) Thus we conclude that our statute was intended to bring the realities of business and professional practice into the courtroom and should not be interpreted so as to destroy its obvious usefulness.” Cotton v. John W. Eshelman & Sons, Inc., 137 Ga. App. 360, 363 (3), 364 (223 SE2d 757).

Of course, OCGA § 24-3-14 does not authorize the introduction of a videotape containing the diagnostic opinions of physicians or persons not subject to cross-examination. See Baker v. State, 251 Ga. 464 (306 SE2d 917); Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872, 875 (2) (99 SE2d 370). In the case sub judice, however, Dr. Pendleton did not render diagnostic opinions on the videotape — he simply described the steps he took during the course of the surgery. Besides, Freeland could have cross-examined Dr. Pendleton with regard to the contents of the videotape during the course of Dr. Pendleton’s deposition. It cannot be said, therefore, that Dr. Pendleton was unavailable for cross-examination.

Judgment affirmed.

Cooper, J., concurs. Sognier, C. J., concurs in the judgment only.


text:
    A92A1541.
    DODD et al. v. THE STATE.
    (422 SE2d 313)
   McMurray, Presiding Judge.

Defendants were convicted of racing and they appeal, enumerating error upon the general grounds. Viewing the evidence in a light favorable to the State, we find the following:

On September 9, 1991, at approximately 1:39 p.m., two City of Gainesville police officers were parked next to each other in a parking lot. As the officers talked, they heard the sound of two automobiles accelerating at a high rate of speed. The noise got louder as the automobiles approached the officers and the officers watched the automobiles go by at approximately 50 to 55 mph. (The speed limit was 35 mph.) The acceleration noise continued after the automobiles passed the officers.

The automobiles were going east, in separate lanes, on Jesse Jewel Parkway. One automobile, a Chevelle with a 454 cubic inch engine, was being driven by defendant Goss. The other automobile, a Camaro with a 350 cubic inch engine, was being driven by defendant Dodd. The officers gave chase and the automobiles went four or five blocks until they came to a stop at a stoplight.

The officers observed the automobiles for about 45 seconds. The officers testified at trial that, during that time, the Chevelle was trying to “outrun” the Camaro and it appeared to be pulling ahead. They admitted, however, that the distance between the two automobiles basically stayed the same.

Defendants testified that they had driven their automobiles at a drag racing strip and knew that they were capable of going between 120 and 140 mph. The officers acknowledged that the automobiles were capable of going much faster than 50 or 55 mph. Held:

OCGA § 40-6-186 (b) provides: “No person shall drive any vehicle on a highway in this state in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, exhibition of speed or acceleration, or for the purpose of making a speed record, and no person shall in any manner participate in any such race, competition of speed, contest of speed or test or exhibition of speed.” Racing is defined in OCGA § 40-6-186 (a) (2) as “the use of one or more vehicles in an attempt to outgain, outdistance, or prevent another vehicle from passing, to arrive at a given destination ahead of another vehicle or vehicles, or to test the physical stamina or endurance of drivers over long-distance driving routes.”

In our view, the evidence was sufficient to enable any rational trier of fact to find defendants guilty of violating OCGA § 40-6-186 (“Racing”), beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). It is not significant, legally speaking, that the automobiles were capable of going faster than they were or that the distance between the automobiles basically stayed the same.

Decided September 11, 1992.

L. Eddie Benton, Jr., for appellants.

Jerry Rylee, Solicitor, Graham McKinnon IV, Assistant Solicitor, for appellee.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1582.
    STRICKLAND v. THE STATE.
    (422 SE2d 312)
   McMurray, Presiding Judge.

Defendant was charged in a six-count indictment with aggravated child molestation (Counts 1, 3 and 5) and child molestation (Counts 2, 4 and 6). The evidence adduced at a jury trial showed that the three victims are sisters and that defendant was their babysitter. The victims testified that defendant committed acts while they were under defendant’s care and supervision which constitute three separate acts of child molestation.

The State withdrew Counts 3 and 5 of the indictment before the jury began deliberations. The jury found defendant not guilty as to Count 1 and returned guilty verdicts as to Counts 2, 4 and 6. This appeal followed. Held:

Defendant contends the trial court erred in refusing to admit evidence of the victims’ prior false allegations of child molestation against another babysitter.

“In Smith v. State, 259 Ga. 135, 136 (1) (377 SE2d 158), the Supreme Court of Georgia held that, subject to a threshold determination, evidence of prior false allegations by a rape victim does not fall within the proscription of rape-shield laws and that such evidence may be admitted. [However, before] admitting evidence of prior false accusations the trial court, outside the presence of the jury, must determine ‘that a reasonable probability of falsity exists.’ The threshold determination is included in the procedure mandated by the Supreme Court for the express purpose of protecting the prosecutrix from ‘unfounded allegations that she has made (false) allegations in the past. . . .’ Id. at 138.” Ellison v. State, 198 Ga. App. 75 (1), 76 (400 SE2d 360).

In the case sub judice, a hearing was conducted outside the presence of the jury regarding defendant’s request to admit evidence of the victims’ prior false allegations of child molestation against another babysitter. The victim of Count 4 of the indictment testified that her cousin Lucille committed acts against her which constitute child molestation and that Lucille committed these acts while she and the other two victims were under Lucille’s care and supervision. The victim of Count 2 of the indictment testified that her cousin Lucille committed acts against all three victims which constitute child molestation and that Lucille committed these acts while she and the other victims were under Lucille’s care and supervision. (The descriptions of the alleged acts of child molestation given by these witnesses are similar to the acts of child molestation allegedly committed by defendant.) The victim of Count 6 of the indictment testified and affirmed that her cousin Lucille babysat her and the other victims, but she repeatedly refuted her sisters’ testimony that Lucille committed acts against the children which constitute child molestation. Lucille testified and denied committing acts against the victims which constitute child molestation. From this and other evidence the trial court determined that there was no reasonable probability that the previous allegations made against Lucille by the victims of Counts 2 and 4 of the indictment were false. We find this conclusion erroneous.

Decided September 11, 1992.

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

C. Andrew Fuller, District Attorney, Lee Darragh, Assistant Dis trict Attorney, for appellee.

Under Georgia law, the definition for “reasonable probability” is well settled. “[A] reasonable probability is ‘a probability sufficient to undermine confidence in the outcome.’ Lloyd v. State, 258 Ga. 645, 647 (373 SE2d 1). See Gaither v. Cannida, 258 Ga. 557, 559 (372 SE2d 429).” Ellison v. State, 198 Ga. App. 75 (1), 76, supra. In the case sub judice, it is our view that the trial court abused its discretion in determining that there was no reasonable probability that at least two of the victims made prior false allegations of child molestation. The victim of Count 6 of the indictment directly refuted her sisters’ allegation that Lucille committed acts against the children which constitute child molestation and Lucille denied allegations that she molested the victims. This evidence, evidence that the prior allegations of child molestation were made against a woman who also babysat the victims and evidence that the prior allegations of child molestation were similar to the acts allegedly performed against the victims by defendant authorize introduction of evidence of the victims’ prior false allegations of child molestation against another person who babysat the victims. Consequently, the trial court erred in excluding the defendant’s evidence of prior false accusations. Smith v. State, 259 Ga. 135, 136 (1) (377 SE2d 158).

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1646.
    HILL v. THE STATE.
    (422 SE2d 564)
   McMurray, Presiding Judge.

Defendant and Charles Rouse were jointly indicted for violating Georgia’s Controlled Substances Act, i.e., selling cocaine. The evidence adduced at a jury trial revealed the following: At about 9:00 in the evening of April 8, 1988, Special Agent Kim Brown of the Georgia Bureau of Investigation was working undercover with a confidential informant. The special agent and the informant then negotiated a drug buy with defendant and arranged to close the deal a few minutes later at a nearby parking lot. Special Agent Brown and the informant met defendant and two other men in the vacant parking lot. Special Agent Brown observed defendant give a man, who appeared to be co-defendant Rouse, a small object. The man identified as co-defendant “Charles Rouse [then] motioned for [the special agent] to follow him which [she] did.” Defendant’s accomplice led Special Agent Brown to the side of a nearby building and there delivered cocaine to her in exchange for $100 in marked currency.

Defendant was found guilty of selling cocaine. Co-defendant Charles Rouse was found not guilty. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant challenges the sufficiency of the evidence, arguing he was misidentified as the perpetrator of the crime charged. Defendant also argues that his conviction is inconsistent with the jury’s finding that co-defendant Rouse is not guilty of selling cocaine. This enumeration is without merit.

“In determining the sufficiency of the evidence in a criminal case, ‘ “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, (443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979)). On appeal of a criminal conviction, the evidence is to be viewed “in the light most favorable to the prosecution” (i.e., in the light most favorable to the jury’s determination that the defendant is guilty), not. in the light most favorable to the defendant.’ (Emphasis in original; footnote omitted.) Adams v. State, 255 Ga. 356 (338 SE2d 860) (1986).” Josey v. State, 199 Ga. App. 780, 781 (2) (406 SE2d 125). In the case sub judice, Special Agent Brown positively identified defendant as the perpetrator of the crime charged. This evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of selling cocaine. Jackson v. Vir ginia, 443 U. S. 307, supra. Further, defendant’s conviction for selling cocaine is not inconsistent with co-defendant Rouse’s acquittal on the same charge.

At trial, both defendant and co-defendant Rouse relied on the defenses of alibi and misidentification. These defenses are not mutually independent. Consequently, the jury’s apparent finding that co-defendant Rouse was not an accomplice to the illegal drug transaction is not inconsistent with their finding that defendant organized and participated in the execution of the illegal drug transaction.

2. Next, defendant contends the trial court’s charge on intent was unconstitutionally burden-shifting. This contention, is without merit. Almost identical language of the challenged portion of the trial court’s charge on intent withstood virtually the same attack in Griffin v. State, 230 Ga. 449, 452 (3) (197 SE2d 723).

3. In his final enumeration, defendant contends the trial court’s charge on alibi is confusing and unconstitutionally burden-shifting. The trial court’s charge provides, in pertinent part, as follows: “Defendants contend that they were not present at the scene of the alleged offense at the time of its commission. Alibi as a defense involves the impossibility of the accused’s presence at the scene of the alleged offense at the time of its commission. The range of evidence in respect to time and place must be such as reasonably excludes the possibility of the presence of the defendant at the scene of the alleged offense. Presence of the defendant at the scene of the crime alleged or as a party to the crime is an essential element of the crime set forth in this indictment and the burden of proof rests on the State to prove such beyond a reasonable doubt. Any evidence in the nature of alibi should be considered by you in connection with all the other evidence in the case and if in doing so you should entertain a reasonable doubt as to the guilt of the accused, it would be your duty to acquit the defendant. On the other hand, should you believe from the entire evidence that the defendants are guilty beyond a reasonable doubt or that either defendant is guilty beyond a reasonable doubt, it would be your duty to convict.”

Defendant argues that the above emphasized language is confusing “in that the jury could believe the burden was on [him] to prove that he was elsewhere when the crime was committed.” More specifically, defendant argues that the “trial court’s reference to ‘range of evidence’ shifted the burden in the jurors’ minds to believe that [he] had to present evidence to prove his innocence beyond a reasonable doubt.” Defendant reasons that “[t]his possible interpretation of the jury charge . . . creates a situation where the jurors have to make a conscious choice between the two (2) burdens presented.” We do not agree.

“ ‘The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same.’ (Citations and punctuation omitted.) Sharp v. State, 192 Ga. App. 353, 354 (2a) (385 SE2d 23) (1989). Accord Cordova v. State, 191 Ga. App. 297, 298 (3) (381 SE2d 436) (1989).” Bartlett v. State, 196 Ga. App. 174, 175 (3) (396 SE2d 31). In the case sub judice, the trial court’s charge on alibi included instructions that the State has the burden of proving, beyond a reasonable doubt, the essential element of presence at the scene of the crime. In this context, we cannot say the above emphasized language confused the jury or led them to believe that defendant had the burden of proving his absence from the scene of the crime. See Young v. State, 225 Ga. 255, 256 (3) (167 SE2d 586). On the contrary, it is our view that the trial court’s charge fully and fairly informed the jury as to the defense of alibi and, in the same context, reminded the jury of the State’s burden of proving, beyond a reasonable doubt, the essential element of presence at the alleged crime scene. See Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol. II, Criminal Cases, p. 22 (2d ed. 1991). Nonetheless, defendant cites Anderson v. State, 262 Ga. 7 (413 SE2d 722), arguing that the trial court’s charge on the law of alibi is deficient because “it failed to instruct the jury that the State has to disprove the defense of alibi beyond a reasonable doubt.”

In Anderson v. State, 262 Ga. 7, supra, the Supreme Court held that the trial court’s charge did not make it clear that the State has the burden of disproving, beyond a reasonable doubt, defendant’s evidence that he was justified in killing the victim. The Supreme Court criticized that trial court’s charge as follows: “Nowhere in the charge was the jury informed that when the affirmative defense of justification is raised by a defendant, the state has the burden of proving the absence of the elements of that affirmative defense; nor was the jury told that if they believed the defendant to have been justified, it would be their duty to acquit him.” Anderson v. State, 262 Ga. 7, 8 (2), 10, supra. The case sub judice is distinguishable. First, the trial court’s alibi charge emphasizes the State’s burden of proving defendant’s presence at the crime scene beyond a reasonable doubt. Second, the charge also includes the directive that “[a]ny evidence in the nature of alibi should be considered by you in connection with all the other evidence in the case and if in doing so you should entertain a reasonable doubt as to the guilt of the accused, it would be your duty to acquit the defendant.” Under these circumstances, we cannot say that the trial court’s charge on the law of alibi was burden-shifting or otherwise deficient.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.

Decided September 11, 1992.

F. Robert Raley, for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.


author: Pope, Judge. Carley, Presiding Judge,

text:
    A92A0307.
    DITCH v. ROYAL INDEMNITY COMPANY et al.
    (422 SE2d 868)
   Pope, Judge.

Plaintiff/appellant Michael T. Ditch filed a complaint for personal injury arising out of an automobile collision. Plaintiff alleged the collision was caused by the negligence of the driver of a tractor trailer truck and plaintiff named as defendants the common carrier trucking company for whom the driver worked and the company’s insurer. Having learned that the defendant’s driver claimed the collision was caused by a phantom vehicle, plaintiff also named as a defendant John Doe and served the complaint upon his uninsured motorist insurer. The complaint alleged that the collision was caused either by the negligence of the truck driver, the negligence of John Doe or the combined negligence of both. Instead of simply making both claims, however, in apparent anticipation of the truck driver’s defense that the collision was caused by John Doe, the plaintiff made an unnecessary statement expressly denying the existence of John Doe. The complaint contained the following assertion: “Plaintiff denies that an unknown or uninsured motorist caused or contributed to the cause of said collision but, prophylactically, has nonetheless brought this claim against defendant John Doe so that in the event there should be a finding that John Doe caused or contributed to the cause of the collision, plaintiff’s right of recovery against John Doe will have been preserved.” The trial court granted summary judgment to John Doe and plaintiff’s uninsured motorist insurer on both plaintiff’s complaint and the cross-claim of the other defendants. Plaintiff appeals.

This court has previously ruled that the plaintiff in an automobile collision case may plead alternatively that the collision was caused by the negligence of a known defendant and a John Doe defendant. Smith v. Doe, 189 Ga. App. 264 (375 SE2d 477) (1988). The holding in Smith, however, does not save plaintiff’s claim against John Doe in the case now before us because instead of merely pleading alternatively that a known and an unknown defendant caused the collision, the plaintiff expressly denied the collision was caused by the acts of defendant John Doe. An allegation made by a plaintiff in the complaint is an admission which “cannot be disputed” by the plaintiff. Reynolds v. Estate of Reynolds, 238 Ga. 1, 4 (230 SE2d 842) (1976) . Where, as here, the admission contained in the pleading was never withdrawn, plaintiff was bound by the admission. See Strozier v. Simmons U. S. A. Corp., 192 Ga. App. 601, 603 (385 SE2d 677) (1989); Greene v. Gulf Oil Corp., 119 Ga. App. 87 (2) (166 SE2d 626) (1969).

The Civil Practice Act which permits alternative pleadings (OCGA § 9-11-8 (e)) does not change the rule of evidence that a party is bound by its judicial admissions (OCGA § 24-3-30). “The CPA did not wipe out or destroy the law in Georgia to the effect that a party to an action is bound by material allegations made in his pleadings . . . .” Martin v. Pierce, 140 Ga. App. 897, 898-899 (232 SE2d 170) (1977) . The plaintiff here could easily have pleaded that both the known and unknown defendants were liable for his injuries without making the unnecessary admission denying the existence of John Doe. As Professor Green warned in Ga. Law of Evidence, § 238 (2d ed. 1982), a party should beware of the evidentiary effect of alternative pleadings.

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., and Andrews, J., concur. Carley, P. J., Beasley, Cooper and Johnson, JJ., dissent.

Carley, Presiding Judge,

dissenting.

As the majority correctly notes, the Civil Practice Act “did not wipe out or destroy the law in Georgia to the effect that a party to an action is bound by material allegations made in his pleadings. . . .” Martin v. Pierce, 140 Ga. App. 897, 898-899 (1) (232 SE2d 170) (1977). However, it is likewise clear that the Civil Practice Act mandates that “[a]ll pleadings shall be so construed as to do substantial justice.” OCGA § 9-11-8 (f). In my opinion, the majority has misconstrued appellant-plaintiff’s complaint so as to do substantial injustice. Accordingly, I must respectfully dissent.

The entirety of the allegation under consideration is as follows: “It is believed by [appellant] that [the named defendants] (and [their] servants, agents, and employees) intend to assert by way of defense that an unknown (and thus uninsured) motorist caused the collision or contributed to the cause of the collision which resulted in [appellant’s] injuries. [Appellant] denies that an unknown or uninsured motorist caused or contributed to the cause of said collision but, prophylactically, has nonetheless brought this claim against [appellee] John Doe so that in the event there should be a finding that John Doe caused or contributed to the cause of the collision, [appellant’s] rights of recovery against John Doe will have been preserved.” Although this allegation is perhaps unartfully phrased, it is clear that appellant is merely pleading in anticipation of the named defendant’s defense and that he is merely expressing his opinion that that defense is without merit. The rule, relied upon by the majority, “has application to admissions of fact, and is not applicable where the admission is merely [an] opinion on the part of the party making it. . . .” Clift & Goodrich, Inc. v. Mincey Mfg. Co., 41 Ga. App. 38, 39 (1) (152 SE 136) (1930). When construed so as to do substantial justice, the complaint evidences appellant’s opinion that the named defendants’ defense based upon the phantom driver is meritless, but also evidences his concession that a question of fact does remain as to that defense. If, as a matter of fact, the jury nevertheless disagrees with appellant’s opinion and finds the named defendants’ defense to be viable, appellant clearly seeks to recover against John Doe. Accordingly, appellant is merely pleading alternatively and asserts that he is either entitled to recover against the named defendants if the jury finds that their defense is meritless or he is entitled to recover against John Doe if the jury finds that the named defendants’ defense is meritorious. Read in context, the allegation denying that John Doe caused or contributed to the collision relates solely to appellant’s opinion as to the viability of the named defendants’ defense, and has nothing whatsoever to do with the viability of appellant’s recovery against John Doe. Even if appellant “subjectively believes [the named defendants are] responsible for [his] damages,” he would still be entitled to maintain his action against John Doe. Smith v. Doe, 189 Ga. App. 264, 266 (3) (375 SE2d 477) (1988).

“The Civil Practice Act pleading requirements are to be construed liberally and in favor of the pleader, in furtherance of the ‘basic premise’ behind the Act — to substitute ‘notice pleading’ for ‘issue pleading.’ [Cits.] . . . ‘ “[P]leadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end.” [Cit.] . . .’ [Cit.]” Tahamtan v. Dixie Ornamental Iron Co., 143 Ga. App. 561-562 (239 SE2d 217) (1977). Construing appellant’s complaint according to the Civil Practice Act pleading requirements, he pleads alternatively that he has a viable claim against the named defendants or, if not, he has a viable claim against John Doe. See Smith v. Doe, supra. By construing appellant’s complaint most strongly against him, the majority raises a barrier which prevents the achievement of a fair and just determination as to whether it is the named defendants or John Doe who will bear responsibility for appellant’s injuries. The majority erroneously allows John Doe and appellant’s uninsured motorist insurer to evade potential responsibility by construing appellant’s mere subjective opinion as to the non-viability of the named defendants’ defense as an irrevocable admission that no phantom driver existed as a matter of fact. Accordingly, I must respectively dissent.

Decided July 31, 1992

Reconsideration denied September 14, 1992

Mark W. Crouch, for appellant.

Drew, Eckl & Farnham, Arthur H. Glaser, J. Robb Cruser, Fain, Major & Wiley, John K. Miles, Jr., Christopher E. Penna, for appellees.

I am authorized to state that Judge Beasley, Judge Cooper and Judge Johnson join in this dissent.


text:
    A92A1651.
    ATLANTIC ZAYRE, INC. v. ZACHARY.
    (422 SE2d 667)
   McMurray, Presiding Judge.

Plaintiff Zachary was employed by defendant Atlantic Zayre, Inc. (“Zayre”) in a large warehouse or distribution facility. Due to shrinkage or losses to theft, defendant Zayre contracted with defendant Guardsmark, Inc. to place an undercover investigator in the work force at the distribution facility. Upon completion of the investigation, the undercover investigator and defendant Zayre’s loss prevention manager met with police. At that meeting, the police were provided with a copy of the undercover investigator’s reports and given three radar detectors which the undercover investigator represented had been purchased at far below market value prices from Zayre employees. Plaintiff was prosecuted for the theft of one of these radar detectors. Plaintiff was acquitted of the theft charge and this action for malicious prosecution was instituted.

Upon the trial of the case sub judice, defendant Zayre’s motion for directed verdict was denied. The jury subsequently returned a verdict in favor of plaintiff and against defendant Zayre. The jury also returned a verdict in favor of defendant Guardsmark and against plaintiff. Defendant Zayre appeals the judgment entered against it and submits three enumerations of error, all of which are addressed to the denial of its motion for directed verdict. Held:

Of the six elements of a malicious prosecution claim stated in such cases as Commerical Plastics &c. of Ga. v. Molen, 182 Ga. App. 202 (355 SE2d 86) and Ellis v. Knowles, 90 Ga. App. 40 (81 SE2d 884), we are concerned primarily with whether there is any evidence showing malice and want of probable cause. “[I]n determining the existence vel non of malice and of probable cause, Georgia law makes a distinction between a prosecution in which the one who has summoned law enforcement officers ‘merely states what he believes, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer, . . . (and one in which the accuser’s) persuasion was the determining factor in inducing the officer’s decision’ to prosecute. Prosser, [Law of Torts, § 119 at 837 (4th ed. 1971)]; cited in Melton [v. LaCalamito, 158 Ga. App. 820, 822 (282 SE2d 393)].” Atlantic Zayre v. Meeks, 194 Ga. App. 267, 268 (1), 269 (390 SE2d 398). See also Tench v. Turner, 201 Ga. App. 156, 157 (1) (410 SE2d 357).

In reviewing the denial of a motion for directed verdict, the proper standard of review is the any evidence test. Re/Max of Ga. v. Real Estate Group &c., 201 Ga. App. 787, 788 (1) (412 SE2d 543); Southern Gen. Ins. Co. v. Holt, 200 Ga. App. 759, 760 (2) (409 SE2d 852) (reversed in part on other grounds Southern Gen. Ins. Co. v. Holt, 262 Ga. 267 (416 SE2d 274)). The transcript of the trial contains no evidence that defendant’s loss prevention manager did any more than participate in providing to police the information gathered by the undercover investigator. While a jury would have been authorized to conclude that the undercover agent had fabricated his representations concerning plaintiff, there is no evidence that any agent or employee of defendant Zayre had knowledge of any such lack of truthfulness. No one at defendant Zayre swore out a warrant against plaintiff nor made any decision to begin or continue a prosecution of plaintiff. The Clayton County solicitor’s office made an independent decision to prosecute the case. There is no evidence that defendant Zayre urged any action or played any role in the decision to prosecute plaintiff, it merely participated in providing police with information it reasonably believed to be truthful.

Nor does any liability on the part of defendant Zayre arise in connection with the circumstances of the arrest of plaintiff. Clayton County officials initiated two other theft by taking prosecutions, based on the information gathered by the undercover investigator, which resulted in guilty pleas. One of these other prosecutions was of plaintiff’s brother David. Plaintiff was arrested when he attended his brother’s arraignment hearing on these charges. At that time, plaintiff had been charged with the theft by taking offense at issue and there was an outstanding bench warrant for plaintiff’s arrest due to his failure to appear for his arraignment. Defendant Zayre’s loss prevention manager informed the solicitor’s office of plaintiff’s presence but did not provide this information directly to the police or encourage police to arrest defendant. It was a matter of routine police procedure to arrest a person where there was an outstanding warrant.

There was no evidence authorizing a jury to hold defendant Zayre liable for the arrest and prosecution of plaintiff. The superior court erred in denying defendant Zayre’s motion for directed verdict. Tench v. Turner, 201 Ga. App. 156, 157 (1), supra. Compare Ginn v. C & S Nat. Bank, 145 Ga. App. 175, 178 (3) (243 SE2d 528).

Decided September 14, 1992.

Whitehurst & Frick, Stephen P. Riexinger, for appellant.

Thomas J. Hughes, Jr., Goldner, Sommers, Scrudder & Bass, Stephen L. Goldner, Tony L. Axam, for appellee.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A92A0761.
    GRANGER v. THE STATE.
    (423 SE2d 20)
   Cooper, Judge.

Following his plea of guilty of trafficking in cocaine, appellant appeals his conviction. His sole enumeration of error is the denial of his motion to suppress evidence obtained as a result of the seizure, detention and search of his person which he alleges were pretextual and without probable cause.

1. The State contends that there is no reservation of the suppression issue in the record on appeal. See Mims v. State, 201 Ga. App. 277 (1) (410 SE2d 824) (1991). However, the transcript of the plea proceeding reveals that when appellant entered his guilty plea he reserved the right to appeal the denial of his motion to suppress; that this conditional plea was accepted by the trial court; and that the State interposed no objections. This was sufficient to prevent a waiver of the issue on appeal. Goodwin v. State, 202 Ga. App. 655 (415 SE2d 472) (1992).

2. The transcript of the hearing on the motion to suppress shows that while responding to a call reporting drug activities at a nearby apartment complex, two undercover detectives in an unmarked police vehicle encountered two cars stopped side by side at an intersection. Unable to pass, the officers observed appellant, who was a passenger in one of the cars, hold out his hand and received what appeared to be either a white package or a clear package containing a white substance from the driver of the other car. Based on their experience with drug transactions, the detectives immediately suspected the transaction to be a drug deal and the package to contain cocaine. Both cars pulled into the driveway of an adjacent office park, turned around and drove away. The detectives followed and radioed a lookout for the car in which appellant was the passenger. Upon seeing the blue light of a squad car the suspect vehicle initially speeded up before it stopped. The detectives approached the car with drawn guns because they believed the situation could be dangerous. The occupants were asked to get out and were subsequently patted down for safety reasons. The detective frisking appellant felt a hard object at appellant’s waistline and when the detective squeezed the object, a piece broke off. The detective removed the object, which was the package the officers had seen passed between the cars. A subsequent test on the substance in the package revealed that the package contained a quarter kilo of cocaine. Appellant was then handcuffed, arrested and advised of his Miranda rights. Both detectives testified that they were familiar with how drugs were packaged and sold; that the location in which the cars were encountered was within a one-mile radius of a high crime area where many citizen complaints had been made about drug activity; that numerous “mid-level”, drug dealers who sold drugs from car to car resided in the nearby neighborhood; and that they had participated in many such drug deals as undercover officers and in making arrests in this area.

Decided September 15, 1992.

Dennis R. Scheib, for appellant.

Robert E. Wilson, District Attorney, Elisabeth G. MacNamara, Assistant District Attorney, for appellee.

We do not agree with appellant that there were no facts to indicate that a drug transaction was taking place or to justify a police stop. “ ‘An arrest without warrant, under both the United States Constitution, Articles IV and XIV, and the Constitution of Georgia of 1983, Art. I, Sec. I, Par. XIII, “ ‘is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.’ ” [Cits.]’ [Cit.]” Jackson v. State, 197 Ga. App. 154 (397 SE2d 737) (1990). Before any stop or search occurred, “the officers saw activity which aroused their suspicions of drug activity. These suspicions were sufficient for a ‘Terry-type’ inquiry. [Cits.]” Edwards v. State, 194 Ga. App. 571, 572 (1) (391 SE2d 137) (1990). Thus, the investigatory stop in this case was justified by objective indications that appellant was engaged in criminal activity, and the brief pat-down for safety disclosed a hard bulge which authorized the detective to intrude further. See Roberts v. State, 193 Ga. App. 96, 100 (386 SE2d 921) (1989). We conclude that there was nothing illegal about this search or seizure and that the trial court properly refused to grant appellant’s motion to suppress.

Judgment affirmed.

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


text:
    A92A0840.
    WARD v. THE STATE.
    (423 SE2d 22)
   Cooper, Judge.

Appellant moved to quash his indictment based on this court’s decision in State v. Byrd, 197 Ga. App. 661 (399 SE2d 267) (1990). The trial court denied the motion to quash but certified its order for immediate review, and we granted appellant’s application for interlocutory appeal.

Undisputed facts in the record show that in September 1990, the Grand Jury for Jackson County was summoned, sworn, and charged. The grand jurors served during the week of September 4, 1990, and at the conclusion of the week were paid for their service and dismissed. The district attorney told the grand jurors at that time that they would need to return the first week in December. The grand jury met again three months later, on December 3, 1990, at which time indictments were returned against appellant and others. The court did not order the grand jurors to return that first week in December and the clerk of court did not summon them back. The returning grand jurors were not recharged and were not resworn. The record also contains a letter from the district attorney to all grand jurors dated November 9, 1990, reminding them that “[t]he grand jury is scheduled to reconvene” on December 3, 1990, and a'copy of the 1990 Court Calendar for the Piedmont Judicial Circuit showing that the Grand Jury for Jackson County was scheduled to meet in December as well as September. The district attorney testified at the hearing on the motion to quash that the court calendar was issued by the court prior to the beginning of the year, indicating that the December session was in fact scheduled by the court rather than the district attorney. He also testified that the regular practice in Jackson County was to call two grand juries a year, each meeting two times, three months apart; that there was never a second summons, swearing, or charging for the second session; and that even the first summons was never pursuant to a written court order signed by a judge of the superior court.

“[A] grand jury, properly drawn, duly summoned and sworn and then discharged, may reconvene in the same term only upon order of the superior court and must be recharged.” State v. Byrd, supra at 663. We agree with appellant that this case is controlled by Byrd. The grand jury in Byrd was duly summoned, sworn, and charged. After serving for one week, the grand jurors were discharged subject to recall. A little more than two months later, the grand jurors were recalled to service by the district attorney, without an order or summons from the court. As here, the grand jurors were not recharged or resworn. Under these circumstances, this court held Byrd’s indictment was properly quashed on the grounds that the grand jury had not been properly reconvened pursuant to an order of the court and summons by the clerk of the court and had not been recharged. Id. at 661-662.

The State distinguishes Byrd on the grounds that (1) the grand jury in Byrd was “discharged” subject to recall by the district attorney at an unspecified later date, while the grand jury in the instant case was “dismissed” with instructions from the district attorney to return on a specified date three months later; and (2) the date for reconvening the grand jury in Byrd was apparently scheduled by the district attorney, while the date for reconvening the grand jury in the instant case was apparently set by the court in advance. While the State’s distinctions are not totally irrelevant, they miss the real import of Byrd. For in Byrd the concern was not with technicalities but with practicalities and the perceptions of the public and the grand jurors themselves. At issue was whether, as a practical matter, the grand jurors would remember their oaths and the public would perceive the grand jurors as still bound by them; and whether the grand jurors and the public might perceive the grand jury as a tool of the prosecutor rather than an arm of the court. Id. at 663. Even if the grand jurors in this case were not officially released from their oaths and obligations after their first week of service, three months passed between sessions of the grand jury, during which time the grand jurors had resumed their normal, daily lives. In addition, even if the second week of grand jury service was actually scheduled by the court rather than the district attorney, it could certainly have appeared to the grand jurors from the communications they received that it was the district attorney rather than the court which reconvened the grand jury. Thus, under Byrd, the grand jurors needed to be recharged, and they needed to receive some direction to reconvene from the court rather than the district attorney, either in the form of a court order, a summons from the clerk of court, or both.

The State also contends that Byrd is distinguishable because the indictment in Byrd was not returned in open court to a superior court judge, while the indictment in this case was. However, this contention is factually inaccurate, as the stipulated facts in Byrd state that “[t]he indictment was returned to the presiding Judge in open court later that day. . . .” Id. at 661-662. The State’s suggestion that Byrd is different because the reconvened grand jury in Byrd considered only Byrd’s case, while the reconvened grand jury here considered many, is also unavailing. That the grand jury in Byrd reconvened to consider only Byrd’s indictment was not discussed or even mentioned in the Byrd opinion. Assuming it to be true, therefore, we evidently did not consider it a factor important to our decision. Accordingly, the motion to quash appellant’s indictment should have been granted.

Judgment reversed.

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

Decided September 15, 1992.

H. Bradford Morris, Jr., Jack S. Davidson, for appellant.

Timothy G. Madison, District Attorney, for appellee.


text:
    A92A0919.
    GEORGIA TILE DISTRIBUTORS, INC. v. ZUMPANO ENTERPRISES, INC.
    (422 SE2d 906)
   Cooper, Judge.

This case, which now makes its second appearance before this court, arose from a transaction in which appellee delivered ceramic tile to appellant. When appellant accepted the tile but refused to pay for it, appellee brought an action against appellant in two counts: one based on contract and one based on unjust enrichment. After a bench trial, the court entered an order ruling for appellant on the contract claim without addressing the unjust enrichment claim. Appellee appealed, and this court vacated the judgment because it failed to. address the unjust enrichment claim and contained insufficient findings of fact to support the ruling on the contract claim. See Zumpano Enterprises v. Ga. Tile Distrib., 200 Ga. App. 563 (408 SE2d 813) (1991). On remand, the trial court again ruled for appellant on the contract claim but ruled for appellee on the unjust enrichment claim, including in its order appropriate findings of fact and conclusions of law with respect to both claims. On the unjust enrichment claim, the trial court awarded appellee $9,151.54 as the reasonable value of the tile delivered, with interest on the judgment to run from June 29, 1990, the date of the trial court’s original ruling. Appellant contends the trial court erred in ruling that appellee was entitled to an unjust enrichment recovery and in awarding interest running from a date prior to the trial court’s judgment on the unjust enrichment count.

Appellant and appellee are competitors in the ceramic tile distribution business. Prior to late 1987 or early 1988, appellant was a distributor of tiles manufactured by Windsor Ceramic Tile (“Windsor”) and ordered tile from Windsor directly. Around that time, however, appellee and Windsor entered into a master distributorship agreement giving appellee the exclusive right to fill orders for Windsor’s tile in the region. In December 1987, appellant submitted an order for ceramic tile directly to Windsor, and in January 1988, Windsor passed the order along to appellee as its master distributor for the area. Appellee then called appellant to arrange for delivery of the tile. Whether this conversation between agents of appellant and appellee created a contract was disputed at trial, and the trial court concluded that it did not. Windsor shipped appellant’s tile to appellee in mid-January 1988, in a truckload along with other tile that appellee had ordered, and billed appellee rather than appellant the $9,151.54 owed for the tile appellant ordered. Appellee paid this amount to Windsor and billed appellant $10,628.89. Even though appellant knew of appellee’s master distributorship agreement with Windsor, appellant says it was not aware it would be billed by appellee rather than Windsor until it actually received the bill. By that time most of the delivered tile had been sold, and by the time of trial all had been sold.

1. Appellant contends that, because the trial court found appellant’s version of the pre-delivery conversation between agents of the parties more persuasive than appellee’s version and held that “[b]ased upon its review of the testimony, this Court resolves all credibility issues in favor of the [appellant] as to Count One,” the trial court erred in concluding that appellee could recover under an unjust enrichment theory. In the absence of a contractual agreement, appellant argues, appellee (1) must have known it would not be compensated by appellant when the goods were delivered to appellant and appellee paid Windsor, so the general presumption of an implied, promise to pay was rebutted and appellant was a mere volunteer not entitled to compensation; or (2) acted in bad faith in delivering the tile and billing appellant, thereby engaging in conduct incompatible with seeking an unjust enrichment recovery. An agreement is not needed for an unjust enrichment recovery, however. “The theory of unjust enrichment applies when as a matter of fact there is no legal contract . . . , but where the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefited party equitably ought to return or compensate for. [Cits.]” Regional Pacesetters v. Halpern Enterprises, 165 Ga. App. 777, 782 (2) (300 SE2d 180) (1983). “Ordinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.” OCGA § 9-2-7. Here, the trial court found — and it is undisputed or amply supported in the record — that appellant received the shipment of ceramic tile, accepted it, and received benefit from it by selling it but has not paid for it. The trial court made no findings regarding appellee’s knowledge or state of mind and could not have done so based on appellant’s evidence at trial. Moreover, appellant’s asserted conclusions regarding appellee’s knowledge or state of mind do not logically flow from the findings that the trial court did make. Rather, we find that when the trial court resolved all credibility issues in favor of appellant “as to Count One,” it simply resolved in favor of appellant the credibility disputes relevant to a determination of whether a contract agreement existed. The court concluded there could be no contract-based recovery. However, there is no inherent inconsistency in concluding that no contractual agreement was reached but one party has benefited at the expense of another who must in fairness be compensated. Accordingly, the trial court did not err in concluding that a recovery for appellee based on an unjust enrichment theory was appropriate.

Appellant also argues that benefits must be “knowingly” accepted before those benefits can provide the basis for unjust enrichment. See, e.g., Ginsberg v. Termotto, 175 Ga. App. 265 (1) (333 SE2d 120) (1985). Thus, appellant argues, unjust enrichment cannot apply here because appellant accepted the goods and benefited from them without knowing that appellee was the benefactor. The cases appellant cites for this proposition hold that there can be no unjust enrichment recovery where the party from whom recovery is sought does not know that any benefit is being conferred; however, they do not hold that there can be no such recovery if the recipient knows a benefit is being conferred but does not know who is conferring it. Here, appellant knew it had received the tile, accepted it, sold it, and has paid no one for it. Its reliance on this line of cases is therefore misplaced.

2. In its second enumeration of error, appellant challenges the trial court’s decision that interest on the unjust enrichment award should run from June 29, 1990, the date of the trial court’s first ruling in this case, rather than from November 4, 1991, the date on which the trial court ruled appellant had been unjustly enriched and established the reasonable value of the delivered goods. An action seeking an unjust enrichment recovery for the value of goods delivered is an action for unliquidated damages. See Noble v. Hunt, 95 Ga. App. 804 (6) (99 SE2d 345) (1957). Furthermore, “ ‘[unliquidated amounts bear no interest until after agreement or judgment fixing the principal amount as liquidated.’ [Cit.]” Corr v. Aaron Rents, 136 Ga. App. 643, 644 (222 SE2d 150) (1975). We therefore agree with appellant that the trial court erred in providing that interest would run on the unjust enrichment award before the judgment establishing the amount of that award.

Appellee suggests that, rather than awarding pre-judgment interest on an unliquidated claim, the trial court’s second judgment was actually amending the original judgment nunc pro tunc, so that conceptually the two judgments are one and the same, effective as of the earlier date. Totally apart from the fact that the original judgment was previously vacated on appeal, however, this court has held that a court’s power to amend nunc pro tunc is the power to correct inadvertent errors or omissions in the record to reflect the truth of what happened; it “does not include the power to supply judicial omissions so as to include what a court might or should have decided, but did not actually so decide.” Allen v. Community Loan & Invest. Corp., 78 Ga. App. 611, 612-613 (51 SE2d 872) (1949). “ ‘The power to amend nunc pro tunc is not revisory in its nature, and is not intended to correct judicial errors.’ . . . [Cit.]” Carswell v. Shannon, 209 Ga. 596, 599 (2) (74 SE2d 850) (1953). Thus, we cannot avoid the conclusion that awarding interest on the unjust enrichment judgment prior to the date of that judgment was error.

Decided September 15, 1992.

Joel E. Dodson, for appellant.

Neil A. Moskowitz, for appellee.

Judgment affirmed in part and reversed in part.

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


text:
    A92A1591.
    HUNT v. THE STATE.
    (423 SE2d 24)
   McMurray, Presiding Judge.

We granted an interlocutory appeal in this drug case to consider whether the trial court erred in denying defendant’s motion to suppress evidence. We conclude that defendant’s motion to suppress was denied properly and affirm.

The State introduced the following evidence at the motion to suppress hearing: Responding to information from a “concerned citizen” that defendant Jesse Lee Hunt, Jr. and Larry Hunt were returning to “their residence on South Jefferson Street” in a white Chevrolet Spectrum and that they were in possession of a large quantity of cocaine, Dougherty County police officers “set up surveillance within the target location.” The Hunts were already “under suspicion for drug trafficking” because three or four weeks previously the police were told that “they were both involved in illegal drug transactions.”

The officers spotted the described vehicle approximately one block from defendant’s residence and they pulled in front of it in an attempt to “execute a traffic stop.” Defendant was driving the vehicle; Larry White was sitting in the passenger seat.

Upon the activation of the blue lights of the police, defendant backed the vehicle up and traveled about three blocks in reverse. In the meantime, Larry Hunt threw a small white object out the window. The police stopped the vehicle and retrieved the object — it was cocaine. Held:

In California v. Hodari D., 499 U. S. _ (111 SC 1547, 113 LE2d 690), two police officers patrolled a high-crime area in an unmarked car. The officers were dressed in street clothes, but the fronts and backs of their jackets bore the word “Police.” The officers rounded a corner and saw a small band of youths gathered around a small car. At the sight of the officers, the youths took flight and the small car left hastily. The officers became suspicious and gave chase. One officer took off in the car; the other, Officer Pertoso, took off on foot. One of the youths, Hodari, headed north, looking behind as he ran. When he turned around he realized that Officer Pertoso, who had taken a circuitous route, was heading south on the same street and was almost upon him. At that point, Hodari tossed away a “small rock” which turned out to be crack cocaine. A moment later, Officer Pertoso tackled Hodari, placed him in handcuffs, and called for assistance.

Decided September 15, 1992.

Brimberry, Kaplan, Campbell & Donaldson, Mark D. Brimberry, for appellant.

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

Hodari moved to suppress the crack cocaine in the juvenile proceeding that had been brought against him. The juvenile court denied the motion but the California Court of Appeals reversed, holding that Hodari had been illegally “seized” when he saw Officer Pertoso running towards him, and that the crack cocaine was the fruit of the illegal seizure. The California Supreme Court denied the State’s application for review and the United States Supreme Court granted certiorari.

The high court reversed, reasoning that at the time he dropped the crack cocaine, Hodari had not been “seized” within the meaning of the Fourth Amendment. In reaching its decision, the Supreme Court looked to the common law of arrest and concluded that in Fourth Amendment terms a person is not “seized” unless an officer applies physical force, however slight, or the person submits to an officer’s “show of authority.” Turning to the facts of the case, the Supreme Court observed that when Hodari discarded the crack cocaine he was still in a state of flight: He was untouched by Officer Pertoso; he did not submit to the officer’s “show of authority.” Thus, the Supreme Court ruled that the crack cocaine that Hodari abandoned was not the fruit of an illegal seizure.

In the case sub judice, as in California v. Hodari D., supra, defendant was not “seized” when the cocaine was abandoned. He had not been touched by the officers; he did not submit to the officers’ “show of authority” — the flashing blue lights. Simply put, defendant was in a state of flight when the cocaine was discarded and it cannot be said that it was the fruit of an illegal arrest.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.