author: McMurray, Presiding Judge.

text:
    A91A1047.
    NOBLES v. THE STATE.
    (411 SE2d 294)
   McMurray, Presiding Judge.

This is the third appearance of this case. Nobles, who was 16 years old at the time of the crimes, was indicted for murder and possession of a knife during the commission of a felony and convicted of voluntary manslaughter and the knife possession charge on April 28, 1988. In Nobles v. State, 191 Ga. App. 594 (382 SE2d 637), where the pertinent facts are stated, these convictions were reversed because a statement taken from Nobles in violation of his Miranda rights (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)), was introduced in evidence. After remand for retrial, a second appeal was brought from the denial of Nobles’ double jeopardy claim, in which this Court held that although the in-custody statement should not have been admitted, the remaining evidence was sufficient to support both convictions. Nobles v. State, 195 Ga. App. 725 (394 SE2d 613). Nobles was retried before a jury and on October 4, 1990, was again found guilty of voluntary manslaughter and possession of a knife during the commission of a felony. He was sentenced to ten years on the first count and five years on the second, to be served consecutively in a youthful offender facility. He appeals therefrom and enumerates 27 errors. Held:

1. Appellant Nobles contends that the trial court erred in answering a juror’s question by misleading and confusing the jury and making the court’s opinion known to the jury. The juror inquired whether, if he came on a scene where his wife was being threatened and he thought she was going to be killed, he would be guilty of voluntary manslaughter if he killed the person who threatened his wife. The judge replied that he could not tell the juror the answer to the question, but he would try to give him “a pure example without self-defense.” He explained that where “two people are at a bar drinking and they have an argument and they get in a fight and one person kills the other[, t]hat’s voluntary manslaughter. It’s not murder, because there was no malice involved; there was just anger caused by what happened at the bar, the argument they got into.” The judge then reinstructed the jury on reasonable doubt. Appellant Nobles argues that the correct answer was “no,” and that a recharge on self-defense should have been given at that time. We find no reversible error. Appellant has demonstrated no impropriety in the example given by the trial court or in the instructions following it, and we discern nothing in the illustration which might serve to mislead or confuse the jury. Also, the trial judge did subsequently recharge on self-defense, as he said at the time he intended to do later. Nor is appellant correct in asserting that the court prejudiced the instruction by stating that it was given at appellant’s request, as the judge actually told the jury that he had discussed it with “the attorneys and we thought” a recharge on self-defense should be given.

The court has the right on receiving a request for further instructions to give such a reply as the facts may warrant. Miller v. State, 195 Ga. App. 89 (3) (392 SE2d 334). “ ‘Where the trial judge in charging the jury correctly states the law governing the case, but exception is taken to an illustration used by the court explanatory of the illustration given, this court will not narrowly scrutinize the illustration, if satisfied that, whether right or wrong, it was not calculated to mislead, and did not in fact mislead, the jury.’ [Cit.] The illustration given by the judge tended to show what is meant in law by [voluntary manslaughter], and was an apt illustration of the idea intended to be conveyed.” Hall v. State, 239 Ga. 832, 833 (2) (238 SE2d 912).

2. The jury foreman also requested the court to give the jurors some guidelines on which to base their determination of what constituted justifiable force; the judge instructed them that they had to set their own standards and “determine from the facts in this case and from the viewpoint of the defendant what a reasonable man would have done under similar circumstances.” Appellant complains that this recharge was reversible error because it failed to inform the jury that under the law a person is justified in using force which is intended or likely to cause death or great bodily harm if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony.

“ ‘Where the jury, after having been charged by the court, returns into court and requests an instruction upon a specific question, it is not error for the judge to confine his instruction to the' specific point suggested by the jury’s inquiry. (Cits.) It is within the court’s discretion to recharge in full or only upon the point or points requested. (Cits.) . . . The jury asked for a charge on a specific point and the jury was charged upon that point. . . . This was sufficient to satisfy the requirements of the law.’ [Cit.]” Dyer v. State, 167 Ga. App. 310, 311 (3) (306 SE2d 313). Accord Brown v. State, 258 Ga. 152, 154 (4) (366 SE2d 668).

3. The trial court refused the jury’s request to see a transcript of the testimony of appellant and his girl friend, which had not been prepared at that time, stating that although there was a tape recording he would not allow it to be played because it would “spotlight [the] testimony out of context with the entire trial.” Appellant contends that this was the only evidence offered on his defense of self-defense and, since the jury was denied the opportunity to clarify the facts, appellant did not receive a fair trial. There were numerous witnesses who testified at trial concerning the events leading up to the stabbing of the victim from which the jury could determine the facts. Whether or not to grant a jury’s request to rehear portions of such evidence is within the discretion of the trial judge, and appellant has failed to carry his burden of showing that the court abused its discretion here. Coleman v. State, 194 Ga. App. 404 (2) (391 SE2d 15). See Morris v. State, 254 Ga. 273, 274 (2) (328 SE2d 547).

4. Appellant asserts that the trial court erroneously denied his motion for directed verdict at the close of the State’s evidence and his motion for new trial on the general grounds. These enumerations are without merit. The evidence adduced at trial was virtually the same as the evidence adduced at the first trial and it was sufficient to authorize the jury’s finding that defendant was guilty, beyond a reasonable doubt, of voluntary manslaughter and possession of a knife during the commission of a felony. Nobles v. State, 191 Ga. App. 594, 597 (1,b), supra; Rose v. State, 195 Ga. App. 399, 400 (2) (393 SE2d 459).

5. Error is assigned to the trial court’s allowance of the pathologist’s testimony, over appellant’s objection, that the cause of the victim’ s death was “hypovolemic shock secondary to blood loss” because the autopsy report provided to him pursuant to OCGA § 17-7-211 did not contain this information. We are unable to perceive what harm this testimony may have occasioned, and do not agree with appellant that without the cause of death the State could not prove that a crime had been committed which formed the basis of the indictment. Any autopsy report must necessarily be related to the cause of death, and the final diagnosis was delineated on the first page of the report as “stab wound, right flank with transection of liver, colon, duodenum and diaphragm.” The authority upon which appellant relies relates to empirical test results of the amount of drugs present in the defendant’s blood and urine, concerning which this Court held that the failure to produce the written scientific report left the defense at a “huge disadvantage” in trying to cross-examine the State’s witnesses as to the implications of the test results and the formation of their opinions. See Durden v. State, 187 Ga. App. 154 (1), 158 (369 SE2d 764). No grounds for reversal have been shown here.

6. Appellant contends that the trial court erred in quashing a subpoena of a television news reporter, and in denying a hearing on his motion for new trial which precluded a determination of whether the mistrial should have been granted because of jury misconduct or tampering. We note in the record, however, a letter dated November 15, 1990, from defense counsel to the trial judge that not only refers to a hearing on the motion for new trial held on November 9, 1990, but also discusses “another hearing scheduled for December 6, 1990, at which time [appellant] will be given an opportunity to introduce the tape from WSAV in reference to the Court’s ruling granting the Motion to Quash [the] subpoena of [the news reporter] in this matter.”

No transcript of either of the hearings referred to appears in the record before us on appeal, but the trial transcript and the order granting the motion to quash show that on the morning before the jury returned its verdict, appellant’s attorney informed the court that a reporter on the WSAV-TV 6:00 news had stated that he had learned the jury was eleven to one for conviction and one juror was holding out and would not budge. After the jury rendered its verdict of guilty on both counts, the trial court asked the foreman to state how they stood when they were dispersed the previous evening. When the foreman replied that they stood nine to three, the court further questioned the jury as a whole as to whether any of them had seen the telecast in question. All said they had not. Accordingly, the trial court ruled that since the television report was inaccurate and the jury did not see it or hear about it, no impropriety had taken place and piercing the reporter’s shield of confidentiality would bring forth no relevant information as required by OCGA § 24-9-30.

Under OCGA § 24-9-30, “[a]ny person, company, or other entity engaged in the gathering and dissemination of news for the public through a newspaper, book, magazine, or radio or television broadcast shall have a qualified privilege against disclosure of any information, document, or item obtained or prepared in the gathering or dissemination of news in any proceeding where the one asserting the privilege is not a party, unless it is shown that the privilege has. been waived or that what is sought: (1) Is material and relevant; (2) Cannot be reasonably obtained by alternative means; and (3) Is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item.” (Indention omitted.)

While this case was the subject of intensive news coverage, nothing in the language of this new statute, which first became effective on July 1, 1990, indicates to us that it was meant to be used to uncover the source of mere courtroom gossip or speculation that appears to have been involved here. Nor has it been shown that the disclosure of the source of this erroneous information was in any way material or relevant, or necessary to the presentation of appellant’s case. Moreover, the trial court had instructed the jury on several occasions that they were not to read, listen or watch any news reports, nor to discuss the case among themselves or with anyone else. When questioned by the judge they all assured him that they had not seen the telecast. “Qualified jurors, under oath, are presumed in the absence of clear evidence to the contrary to follow the procedural directives of and to honestly respond to questions of the trial judge. [Cit.]” Dykes v. State, 191 Ga. App. 879 (2), 880 (383 SE2d 210). We find no error.

7. Error is assigned to the trial court’s refusing to excuse for cause two jurors. The first juror indicated that he had heard about appellant and his older brother and felt like the brothers had a “trouble type attitude.” During voir dire this juror said it would not be easy, but he “would like to think” he could separate that from his mind and be a fair and impartial juror. When further questioned by the trial court, he responded that “just [in] this courtroom” he could judge the appellant’s guilt or innocence without any preconceptions regarding his family. The second juror stated during voir dire that he had heard and read about the case, but he would “require evidence to prove’ whether appellant was guilty or innocent of manslaughter. After the judge inquired whether this juror could decide the case solely from what he heard in the courtroom and any law that he was charged, and not from anything else, the juror stated unequivocally that he could do so.

“ ‘In order to disqualify a juror for cause, it must be established that the juror’s opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence. [Cit.]’ [Cit.]” Chancey v. State, 256 Ga. 415, 425 (349 SE2d 717). “ ‘The fact that a potential juror may have some doubt as to his impartiality, or complete freedom from all bias, does not demand, as a matter of law that the juror be excused for cause. (Cits.)’ [Cit.]” Scott v. State, 193 Ga. App. 577, 578 (2) (388 SE2d 416). “While a venireman may initially express doubt as to his or her ability to be impartial, this fact alone does not demand that the prospective juror be excused for cause. When the venireman indicates that he can render a fair and impartial verdict based solely upon the evidence presented at trial, he is prima facie competent to serve. [Cit.] The trial court has the discretion as to whether to strike a juror for cause. [Cits.] We find no abuse of the trial court’s discretion. The court followed the provisions of OCGA § 15-12-164 for setting aside a juror for cause and found that the juror [s] in question could render a fair and impartial verdict.” Lattany v. State, 193 Ga. App. 438 (388 SE2d 23). Accord Ward v. State, 193 Ga. App. 137, 140 (8) (387 SE2d 150). We find no abuse of discretion here.

8. The appellant’s contention that the trial court used a different standard for the State than it did with the defense in excusing jurors for cause is not supported by the trial transcript. The two jurors to whom he refers both indicated sympathy for appellant because of his age. One woman said appellant reminded her of her young grandson, and that she could not answer if she could decide the case based on the evidence because she did not know if she could keep her feelings separate. The other woman indicated she had a son and could feel for both sides, but that her husband had worked with appellant’s father. When the trial court inquired if she could decide the case without these influences, she replied that she did not think she “could come up with a real clean fair judgment.” Absent a manifest abuse of discretion, which has not been shown, we find no grounds for reversal. Scott v. State, 193 Ga. App. 577, supra.

9. Appellant contends that the trial court improperly excused a juror for sickness and substituted an alternate because he did not talk to the juror directly but accepted the word of her employer. Unlike Baptiste v. State, 190 Ga. App. 451 (379 SE2d 165), upon which appellant relies, an alternate juror was available to serve here, and thus he “has not shown how he was prejudiced by the use of an alternate, since pursuant to OCGA § 15-12-169 alternates are selected in the same manner and must have the same qualifications as members impaneled as the jury.” Forney v. State, 255 Ga. 316, 317 (1) (338 SE2d 252). Harm, as well as error, must be shown to authorize a reversal by this Court. Baptiste v. State, 190 Ga. App. 451, supra at 453 (1).

10. A request to charge relating to the credibility of a witness testifying under a promise of no prosecution by the State was submitted by appellant, but the trial court gave only the standard jury instruction on credibility, to which error is assigned. The charge as given instructed the jurors to consider the witnesses’ interest or lack of interest in the case. Also, this witness testified that he had given a statement to the police before he was arrested or knew he was going to be arrested in connection with the stabbing. Where the requested instruction is at least minimally covered adequately by the charge given on credibility of witnesses, the court’s failure to charge in the language requested does not constitute reversible error. Jones v. State, 188 Ga. App. 240, 241 (3) (372 SE2d 828). The Suggested Jury Pattern Instruction on credibility of witnesses alone was sufficient. Sharp v. State, 196 Ga. App. 848, 850 (4) (397 SE2d 186).

11. Appellant insists that he was entitled to a change of venue because of the extensive pretrial publicity surrounding the case. “ ‘The decision to grant a change of venue lies within the discretion of the trial court, and its discretion will not be disturbed absent an abuse of discretion. [Cits.]’ [Cit.]” Chancey v. State, 256 Ga. 415, 430, supra. “ ‘Traditionally, a defendant seeking a change of venue on the basis that the setting of the trial is inherently prejudicial relies heavily if not primarily or exclusively on news media reports, particularly newspapers (because they are easier to collect). However, widespread or even adverse publicity is not in itself grounds for a change of venue. [Cits.] On appeal, the impact of media publicity is evaluated by various factors, such as the size of the community and the extent of media coverage (number of articles and their circulation); whether it is related to the discovery of the crime (e.g., facts regarding the victim) or to the apprehension or interrogation of the defendant (and whether any publicized confession was admitted at trial); the prominence and content of the reports (e.g., facts vs. speculation and emotionalism, and the accuracy and admission into evidence of those facts); and the time interval between the publicity and the trial. [Cits.]’ [Cit.]” Cargill v. State, 255 Ga. 616, 628 (10) (340 SE2d 891).

While the trial of the case sub judice was of considerable interest and certainly was well-covered in the Savannah, Chatham County area news reports, our review of the evidence of record does not convince us that the publicity was so inflammatory, the area so small, or the citizenry so subject to community pressures as to require a change of venue. Defense counsel was allowed individual sequestered voir dire, and the transcript reveals that he was allowed “ ‘wide leeway’ in asking questions and to excuse for cause any person who was ‘suspect at all.’ ” Jackson v. State, 258 Ga. 810, 811 (4), 812 (375 SE2d 454). The newspaper articles were generally factual and without emotionalism, speculation or acceptance of appellant’s guilt. Moreover, the time interval between the two trials was sufficiently long to allow memories and passions to fade.

“In any event, ‘the record of publicity in the months preceding, and at the time of, the . . . trial does not reveal the “barrage of inflammatory publicity immediately prior to trial,” [cit.], amounting to a “huge . . . wave of public passion,” [cit.], that the court found in Irvin [v. Dowd, 366 U. S. 717 (81 SC 1639, 6 LE2d 751)].’ [Cit.] ‘(T)here is no evidence of a “total inundation of the judicial process by the media” at this trial. [Cits.]’ [Cit.] We cannot say that the setting of the trial was inherently prejudicial as a result of pretrial publicity.” Chancey v. State, 256 Ga. 415, supra at 430-431. Appellant “has not shown inherent prejudice as a result of pre-trial publicity or widespread community fear and bias, nor has he shown actual prejudice in the jury selection process. [Cit.]” Jackson v. State, 258 Ga. 810, supra at 812.

12. The assertion that the trial court erred in denying his first plea of double jeopardy in 1988 concerning the juvenile court proceedings was decided unfavorably to appellant by this Court in Nobles v. State, 191 Ga. App. 594, 597 (3), supra.

13. Error is also asserted in the trial court’s denial of appellant’s second plea of double jeopardy on March 2, 1990, allowing him to be retried for the same offenses. This enumeration is likewise without merit. In Nobles v. State, 195 Ga. App. 725, supra, this Court noted that while appellant’s convictions of voluntary manslaughter and possession of a knife were reversed on a determination that his in-custody statement should not have been admitted into evidence in the first Nobles, “we expressly held that the remaining evidence was sufficient to support both convictions. . . . The prior holding of this court with respect to the sufficiency of the evidence was binding upon the trial court, which consequently did not err in denying the appellant’s plea of former jeopardy. [Cits.]” Id.

14. Appellant’s claim that his motion to quash the order transferring the case from juvenile court to superior court before the first trial was erroneously denied has also been fully addressed and adversely adjudicated. Nobles v. State, 191 Ga. App. 594, 597 (4), supra.

15. The trial court allowed in evidence, over appellant’s objection, a photograph of the victim’s body taken at the morgue before the autopsy which shows the knife wound and also another photograph as evidence relevant to the State in excluding a theory of self-defense and to assist the jury in determining the location of the wound relative to the rest of the body. “ ‘ “A photograph which shows mutilation of a victim resulting from the crime against him may, however gruesome, have relevance to the trial of his alleged assailant.” [Cit.]’ [Cit.] [Such photographs are] ‘relevant and material to show the location of the wounds, [cit.]. . . .’” Brooks v. State, 258 Ga. 20, 22 (3) (365 SE2d 87). Accord Motes v. State, 192 Ga. App. 302, 305 (5) (384 SE2d 463). We find no error in admitting the photographs objected to by appellant.

16. Contrary to appellant’s argument, his requested charges on misdemeanor involuntary manslaughter while acting in self-defense were properly rejected. “This classic complaint, after long debate, has been resolved in this state. ‘(A) defendant who seeks to justify homicide under the “self-defense” statute, OCGA § 16-3-21 (cit.), is not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act, (OCGA § 16-5-3 (b) (cit.)). . . .” Kennedy v. State, 193 Ga. App. 784, 787 (3) (389 SE2d 350).

17. Nor was appellant entitled to a charge on mistake of fact under OCGA § 16-3-5, since his defense was based on justification and self-defense and the trial court instructed the jury on these points. Pullin v. State, 257 Ga. 815, 817 (3) (364 SE2d 848).

18. This Court upheld the refusal to charge a similar request on homicide by accident in Nobles v. State, 191 Ga. App. 594, 599 (8), supra, which is also cited as error here. As stated in the previous case, “appellant testified he stabbed the victim because he thought the victim was assaulting appellant’s girlfriend. There was no evidence adduced at trial that appellant was attempting to stab an assailant of his girlfriend and the victim unfortunately came in between the intended victim and the blow. Thus, appellant’s requested charge discussed a principle not applicable to the facts of the case and the trial court did not err by failing to give that charge to the jury. [Cit.]” Id. at 599.

19. The objections raised by appellant to the trial court’s charge that a person will not be presumed to act with criminal intent do not warrant a reversal of his conviction. While he contends that the instruction lessened the presumption of innocence and relieved the State of its burden of proof, immediately prior to the language he deems unsuitable the court charged that intent was the essential element of the crime and must be proved beyond a reasonable doubt by the State. “The failure of the trial court to charge in the exact language requested is not reversible error where the charge given substantially covered the same legal principles. [Cits.]” Stephens v. State, 196 Ga. App. 29, 30 (2) (395 SE2d 353). Accord Walthour v. State, 196 Ga. App. 721, 722 (5) (397 SE2d 10).

20. Appellant contends that the trial court’s charge on reasonable doubt violated due process because it lessened the standard of proof required for a conviction. However, this instruction has been approved in Thomas v. State, 248 Ga. 247, 250 (6) (282 SE2d 316), where the Supreme Court held that it “is clearly not burden-shifting. It merely defines the degree of proof required of the State to carry its burden of proof.” Here, as in Thomas, the charge was given in connection with an instruction on the State’s burden of proving the guilt of the accused beyond a reasonable doubt.

21. We do not agree with appellant that the trial court’s inadvertent use of the word “evident” rather than the correct word “imminent” in referring to the use of unlawful force in the charge on self-defense was confusing or misleading to the jury. In any event, the trial court recharged the jury on the same issue using the correct language. “A mere verbal inaccuracy in a charge, which results from a palpable ‘slip of the tongue,’ and clearly could not have misled the jury, is not reversible error. [Cit.] Even treating the charge as erroneous, no harm resulted to appellant because the court subsequently gave the correct charge. . . . Under such circumstances, we find no error.” Hadden v. State, 181 Ga. App. 628, 629 (3) (353 SE2d 532).

22. It was not necessary for the trial court to give the appellant’s requested instructions on his contention that his girl friend was being subjected to the forcible felony of aggravated assault when she was hit and kicked, and to explain that hands and feet may be deadly weapons so that the appellant was justified in killing the victim if the victim manifestly intended to commit a felony. “In its charge on self-defense, the trial court charged the jury, in part, that a person is justified in using force which is intended or likely to cause death or great bodily injury only if he reasonably believes such force is necessary to prevent death or great bodily injury to himself. This was a correct statement of the law, OCGA § 16-3-21 . . ., and whether fists and feet can be dangerous weapons under certain circumstances was not material to the issue of self-defense. The determining factor in self-defense is not whether the victim was using a deadly weapon, but whether appellant reasonably believed the amount of force he used was necessary to prevent death or great bodily harm to himself [or another].” Ellis v. State, 168 Ga. App. 757, 760 (5) (309 SE2d 924).

“ ‘It is unnecessary to give the precise language of a requested charge when the principles upon which the jury must make its decision have been clearly explained by the trial court. Such being the situation in this case, the assignment of error is without merit.’ [Cit.]” Moore v. State, 197 Ga. App. 9, 10 (2(a)) (397 SE2d 477).

23. Appellant asserts error in the failure of the trial court to give a requested charge “that one reacting to an attack by an aggressor in repelling such attack, to protect his own life or the life of a third person, is not acting under the excitement of passion as contemplated by the voluntary manslaughter statute, but rather is acting in self-defense.” The trial court gave adequate instructions on self-defense and the requested charge essentially informs the jury that one always acts in self-defense if he is resisting an attack. For the reasons stated in Division 22 herein, we find no error in refusing to give this charge.

24. After the jury requested an explanation of voluntary manslaughter during deliberations, the trial court recharged the subject and then attempted to explain the instructions in layman’s terms with the preface that it was “always dangerous for a judge to go beyond the stilted language of the law, because you never know what the appellate court might think of what you say here. ...” Appellant claims that this remark, to which he objected, constituted reversible error because it conveyed the impression that the trial court believed he would be found guilty and have to appeal. See Faust v. State, 222 Ga. 27 (2) (148 SE2d 430). “We do not agree. Although ‘(i)t is error for any judge in any criminal case ... to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused,’ OCGA § 17-8-57, the comment challenged here did not constitute a statement of opinion either as to proof or as to guilt. . . . [Cit.] ‘While it is better practice, during the trial of cases, for the court and counsel not to make references to . . . the reviewing courts except to cite their decisions as authority; yet the statement here . . . could in no wise be so construed as prejudicial to the accused. . . .’ [Cit.]” Najmaister v. State, 196 Ga. App. 345, 346 (1) (a) (396 SE2d 71). Accord Fletcher v. State, 197 Ga. App. 112, 113 (3) (397 SE2d 605); Mullen v. State, 197 Ga. App. 26 (4) (a) (397 SE2d 487).

Decided September 10, 1991

Reconsideration denied October 15, 1991

Jackson & Schiavone, Michael G. Schiavone, Mark E. Smith, for appellant.

Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.

25. Nor do we agree that the trial judge suggested to the jury on recharge that the verdict should be voluntary manslaughter in explaining that voluntary manslaughter was the type of homicide charged in the case. McMullen v. State, 199 Ga. 521, 525 (2) (34 SE2d 892). Having considered all of appellant’s enumerations of error, we find no grounds warranting reversal for any reason cited.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A91A1053.
    McCOLLUM v. THE STATE.
    (411 SE2d 328)
   Pope, Judge.

Following a bench trial, defendant Kent McCollum was convicted of the offenses of driving under the influence of alcohol, fleeing and eluding arrest and reckless driving. He obtained new counsel and moved for a new trial on the ground he was denied his constitutional right to a trial by jury and was denied effective assistance of counsel. Defendant appeals the order denying his motion for new trial.

1. At the hearing on defendant’s motion for new trial, defendant’s trial counsel testified the case had appeared on the trial calendar possibly three times but had not been reached. The attorney also represented defendant in another criminal case in which a nolle prosequi was entered. Defendant and his father informed the attorney that they were eager to have the remaining case disposed of because defendant had a chance at obtaining a government job if no criminal charges were pending against him. The attorney informed defendant that the only possible way to expedite the matter was to have a non-jury trial. According to the attorney, defendant voiced his consent to a non-jury trial. A non-jury trial was scheduled and at no time during the trial did the defendant raise an objection. Defendant and his father denied they consulted with the attorney about expediting the case and both testified they thought the proceeding before the judge was not a trial but merely a hearing.

Decided September 25, 1991

Reconsideration denied October 15, 1991

Robert G. Fierer, for appellant.

Darrell E. Wilson, District Attorney, Brett W. Ladd, Assistant District Attorney, for appellee.

“A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. Wooten v. State, 162 Ga. App. 719 (293 SE2d 11) (1982).” Hill v. State, 181 Ga. App. 473 (1) (352 SE2d 651) (1987). The State has the burden of proving the waiver was made intelligently and knowingly. Id. We conclude the State met its burden in this case. The record supports the trial court’s finding that the defendant was familiar with his right to a jury trial because he had attended court on several occasions waiting for his case to be tried and because in a prior criminal case he had pleaded guilty after being informed of his right to a jury trial. The record shows defendant had an incentive to waive his right to a jury trial in order to expedite the proceeding and, though the evidence was in conflict, the record supports the trial court’s finding that defendant consulted with his attorney and made an intelligent and knowing decision to waive this right. That defendant had discussed the decision with his counsel and made no objection to the proceeding until after he received an unfavorable verdict is further evidence of his knowing waiver. See Little v. Stynchcombe, 227 Ga. 311 (1) (180 SE2d 541) (1971).

2. The record does not support defendant’s contention that he was denied effective assistance of counsel by counsel’s alleged failure to inform him of his right to a jury trial. Neither does the record show defendant’s trial counsel was ineffective in interviewing witnesses or preparing for trial. Because defendant failed to establish a reasonable probability that the outcome of the trial would have been different but for counsel’s asserted deficiencies, ineffectiveness of counsel was not shown. See Sweetenburg v. State, 197 Ga. App. 36 (2) (397 SE2d 451) (1990).

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A91A1394.
    THE STATE v. McFARLAND.
    (411 SE2d 314)
   Sognier, Chief Judge.

Michael McFarland was charged with the offenses of DUI, OCGA § 40-6-391; driving with no proof of insurance, OCGA § 33-34-10; and being a habitual violator, OCGA § 40-5-58. The State appeals from the grant of McFarland’s motion to suppress evidence.

The evidence presented at the hearing on the motion to suppress reveals that in the early morning hours of October 19, 1990, Officers Gilleland and Heard of the Canton Police Department were sitting in their parked patrol car completing a report when they received a radio dispatch informing them that the attendant in a service station across the street from their car had telephoned a complaint regarding an intoxicated customer and described both the customer’s clothing and his car. The police officers immediately observed a car meeting the description pulling out of the service station across the street, and they followed the car. Gilleland testified that during the time the officers were following the car, they did not see anything indicating that the driver was violating the law. However, after following the car into and out of a deserted shopping center the police officers stopped the car, approached the driver, and asked to see his driver’s license and proof of insurance. The driver stepped out of the car, identified himself as appellee, and informed the officers that he did not have a license and was a habitual violator. These statements were verified by the police radio dispatcher. Gilleland testified that he smelled “a strong odor of alcoholic beverage coming from the car,” and consequently he conducted field sobriety tests, which appellee failed, and appellee was arrested.

Appellee’s motion to suppress was made on the ground that the officers did not have an articulable suspicion that warranted the stop of his car and the stop was therefore unlawful. See Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). The trial court granted appellee’s motion, ruling that the radio dispatch by itself, although sufficient to warrant further investigation, was insufficient to authorize the stop, based on this court’s holding in Johnson v. State, 197 Ga. App. 538 (398 SE2d 826) (1990). This appeal does not involve a trial court’s rulings on disputed facts and credibility at a suppression hearing, which must be accepted by a reviewing court unless clearly erroneous, Cullen v. State, 194 Ga. App. 543, 545 (390 SE2d 908) (1990), as the facts in the case sub judice were not in conflict. Rather, “[t]his court’s responsibility in reviewing the trial court’s decision on a motion to suppress is to ensure that there was a substantial basis for the decision. [Cit.]” Chastain v. State, 196 Ga. App. 50 (1) (395 SE2d 570) (1990). We find that there was not, and we reverse.

In Johnson, supra, this court reversed the denial of a motion to suppress made on the ground that the initial stop of a vehicle was unlawful. Relying on the recent U. S. Supreme Court case of Alabama v. White, 496 U. S__(110 SC 2412, 110 LE2d 301) (1990), the Johnson court held that a radio bulletin based on an anonymous tip that did not give a detailed description and a prediction of future behavior lacked indicia of reliability and thus did not meet the criteria set forth in Terry for a brief investigatory stop. However, unlike the factual situation in Johnson, supra, here there was no anonymous “tip,” but rather a complaint from an identified individual, the attendant at the convenience store, who had observed appellee’s behavior and reported it, giving a detailed description of appellee and his car. Johnson is thus factually inapposite.

“Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. [Cit.]” State v. Misuraca, 157 Ga. App. 361, 364-365 (276 SE2d 679) (1981). We have no hesitation in concluding that Officer Gilleland, upon hearing a radio report that an identified person has observed an intoxicated person driving away in a described car, had reasonable grounds for stopping appellee’s car based on his founded suspicion that the law against driving while intoxicated was being violated. “We conclude that regardless of the absence of outward visible indicia of driving under the influence this was one of those situations in which there was ‘at least reasonable and articulable suspicion’ to authorize the stopping and detaining of the motorist. [Cits.] . . . Given the fact that the officer had received information that the driver of this automobile [was intoxicated], . . . and that he first spotted the automobile being driven onto a public thoroughfare, it is obvious that he had a legitimate purpose in stopping the automobile without a traffic violation having occurred in order to ascertain the condition of the driver. Clearly a limited but immediate inquiry was dictated by these circumstances and authorized under the law. Under the evidence the initial stop was reasonable.” State v. Thomason, 153 Ga. App. 345, 347 (1) (265 SE2d 312) (1980). Accordingly, the trial court erred by granting appellee’s motion to suppress evidence. See generally State v. Rhule, 197 Ga. App. 47 (397 SE2d 556) (1990).

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.

Decided September 17, 1991

Reconsideration denied October 15, 1991

Garry T. Moss, District Attorney, for appellant.

Jason R. Hasty, for appellee.


author: Birdsong, Presiding Judge.

text:
    A91A1447.
    EUDALY v. VALMET AUTOMATION (USA), INC.
    (411 SE2d 311)
   Birdsong, Presiding Judge.

James F. Eudaly filed suit in February 1990 against his former employer Valmet Automation (USA), Inc., for failure to pay sales commissions. Valmet asserted in defense a “Release,” executed by Eudaly in July 1989 upon his termination from employment, and in which, on receipt of certain sums, he released Valmet for “all manner of actions, causes of action, suits, debts, duties, accounts, contracts, claims and demands whatsoever . . . including ... all claims and demands for or with respect to salary, remuneration, commission, advances on commission, fringe benefits, vacation pay, severance allowance, [etc.]. . . .” Valmet’s motion for summary judgment on grounds of this release was denied by the trial court in August 1990, on a finding of a genuine issue of fact as to fraudulent inducement to enter the release.

Time for discovery expired October 1, 1990. On October 12, 1990, Valmet moved for leave to file a counterclaim for overpayment of commissions and sought damages for breach of the release, occasioned by the suit itself filed by Eudaly. Eudaly opposed Valmet’s motion to amend as untimely and sought an enlargement of time to file a pretrial order. The trial court did not rule on those motions, but on November 7, 1990, issued an order allowing Valmet to file its counterclaims.

On November 19, 1990, Eudaly moved for reconsideration of the order allowing Valmet to file counterclaims and sought to exclude admission of the release at trial. On December 6, 1990, Eudaly moved to reopen discovery relative to Valmet’s counterclaims and filed an affidavit showing the necessity for discovery. None of these motions was ruled on by the trial court. On January 14, 1991, the case was called for trial. Eudaly requested a continuance to allow discovery as to Valmet’s counterclaims, and asked for a ruling on the several pending motions, but the trial court denied a continuance and denied Eudaly’s motion to reopen discovery, saying “I set a September deadline for motions, those motions were filed after that date.”

The jury returned a verdict for the defendant Valmet on Eudaly’s claims, and on Valmet’s counterclaims rendered a verdict against Eudaly in the amount of $15,115.38. Eudaly enumerates seven errors below. Held:

1. Generally it is a matter of the trial court’s discretion whether to allow the late filing of counterclaims pursuant to OCGA § 9-11-13 (f) (see White v. Fidelity Nat. Bank, 188 Ga. App. 539, 540 (373 SE2d 640)), but according to its own statement at trial, the trial court had set a September 1990 deadline for motions and for the filing of a pretrial order in this case and for that reason denied appellant Eudaly’s motion to reopen discovery as to Valmet’s counterclaims. That being the case, the trial court abused its discretion in entering an order on November 7 granting Valmet’s motion for leave to file counterclaims some nine months after Valmet had filed its answer, and after the “September deadline for motions,” in fact virtually on the eve of trial. The counterclaims were compulsory, going to the heart of plaintiff’s claims as a set-off or recoupment, and were required to be filed in Valmet’s original answer (OCGA § 9-11-13 (a); Swim Dixie Pool Corp. v. Kraemer, 157 Ga. App. 748, 749 (278 SE2d 448)) or only upon a demonstrated showing of the grounds required to be shown by OCGA § 9-11-13 (f). Clairmont Foods v. Huddle House, 142 Ga. App. 171 (235 SE2d 635). It was, on the face of things, neither fair nor expeditious to allow Valmet to file late counterclaims after time for discovery expired October 1, 1990, and after the court’s “September deadline for motions,” while at the same time using the fact of the “September deadline for motions” as the basis for denying Eudaly an opportunity to make any discovery as to those late counterclaims. Valmet argues on appeal that Eudaly had three months to make discovery after Valmet filed its motion for leave to file counterclaims, but this is patently not so, because the time for discovery had already expired when Valmet sought leave to file counterclaims, and the trial court, although allowing Valmet to file counterclaims on November 7, refused to rule on Eudaly’s motion to reopen discovery because that motion was filed after the “September deadline,” and for the same reason refused Eudaly a continuance at trial.

Accordingly, we rule that on the face of its statement that it had imposed a September deadline for motions and for a pre-trial order, the trial court abused its discretion in allowing Valmet to file late counterclaims after this deadline without a showing of necessity or justice pursuant to OCGA § 9-11-13 (f); and, having allowed Valmet to file late counterclaims, the trial court prima facie abused its discretion in refusing Eudaly time for discovery and for denying a continuance. Once the trial court allowed the late filing of counterclaims, it was without discretion to deny Eudaly all discovery, and the principles allowing liberal discovery applied. See generally Morton v. Gardner, 242 Ga. 852 (252 SE2d 413); Bridges v. Twentieth Century Travel, 149 Ga. App. 837 (256 SE2d 102). The judgment against Eudaly on Valmet’s counterclaims is reversed.

Decided September 16, 1991

Reconsideration denied October 15, 1991

Arthur F. Millard, for appellant.

Glass, McCullough, Sherrill & Harrold, R. Phillip Shinall III, L. James Weil, Jr., James E. Dearing, Jr., for appellee.

2. In view of the reversal of the verdict on Valmet’s counterclaims for the reasons given in Division 1, it is unnecessary to consider appellant’s contention that that verdict was not supported' by sufficient evidence.

3. The trial court did not err in admitting in evidence the release. The document, neither in part nor in whole, is not void for being in restraint of trade according to Howard Schultz & Assoc. v. Broniec, 239 Ga. 181 (236 SE2d 265). Appellant is not entitled to a new trial on this ground.

4. Appellant contends the trial court erred in rejecting his evidence of fraud, but in his brief merely argues that the trial court erred in excluding Exhibit 10 “as evidence of [Valmet’s] intentional misrepresentation of the FSC sale and his commission thereon.” Since appellant provides no clue as to what “the FSC sale” is and what Exhibit 10 is and what it would tend to prove, this allusion is too obscure to form the basis for a finding of harmful error on appeal; the error alleged is not self evident, nor is appellee’s objection to the evidence as being not properly authenticated and “absolutely irrelevant.” Admissibility of evidence is largely a matter of discretion for the trial court, and the burden is on the party alleging error to show it affirmatively by the record. Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (386 SE2d 709). Appellant has not borne his burden to show error affirmatively by the record, and moreover to show harm. See Floyd v. State, 156 Ga. App. 741 (1) (275 SE2d 786). Appellant is not entitled to a new trial on this ground.

5. Inasmuch as the jury determined that Valmet was not liable on Eudaly’s claims, the jury could not have reached a question of punitive damages, and grant of directed verdict to Valmet on the issue of punitive damages cannot have been error. Appellant is not entitled to a new trial on this ground.

Judgment affirmed in part and reversed in part.

Pope and Cooper, JJ., concur.


author: McMurray, Presiding Judge. Andrews, Judge,

text:
    A91A0883.
    THE STATE v. COLLINS.
    (411 SE2d 546)
   McMurray, Presiding Judge.

The State appeals from the superior court’s grant of defendant Collins’ motion to acquit. Held:

Defendant, who was already on parole, was arrested on the charges at issue in June 1989. He was held in the Walker County jail until September 1989 and thereafter has been incarcerated in the Georgia State Penitentiary System. No hold or detainer was placed against the defendant in the State penitentiary by the prosecution. On November 9, 1989, defendant was charged by indictment with having committed the offenses of criminal attempt to commit kidnapping, burglary, criminal attempt to commit interference with custody, and simple battery. Pursuant to OCGA § 17-7-170, defendant filed his demand for trial. The demand for trial was filed on December 7, 1989, while qualified jurors were impaneled in the November 1989 term of the Superior Court of Walker County. Qualified jurors were impaneled in a subsequent term of court. Defendant, who took no action to interfere with his case being brought before a jury, was not tried during the two completed terms following his demand for trial.

The issue as phrased by the State is “whether an inmate incarcerated on an unrelated offense in a State Prison, who has never been arraigned, may file a demand for trial that will entitle him to a discharge if not tried in two terms pursuant to O.C.G.A. Section 17-7-170.” An affirmative answer is clearly required.

First, we note that since no detainer was filed against defendant, OCGA § 42-6-3 is inapplicable to the case sub judice. We are concerned solely with the application of OCGA § 17-7-170 to the facts of the case sub judice.

The State contends defendant has not complied with the requirements of OCGA § 17-7-170 since he was not physically present and ready for trial during both terms of court following his demand. This presents an interesting issue as to whether such a requirement exists in relation to OCGA § 17-7-170. OCGA § 17-7-171 (b), a similar statute applicable to capital offenses but not to the case sub judice, explicitly requires that at both terms “that the defendant was present in court announcing ready for trial and requesting a trial on the indictment.” Such language does not appear in the provisions of OCGA § 17-7-170. This Court has held that the above language from OCGA § 17-7-171 (b) applies only to capital offenses and that there is no similar provision applicable to cases governed by OCGA § 17-7-170. Ciprotti v. State, 190 Ga. App. 639, 641 (4) (379 SE2d 802). See also State v. Crapse, 173 Ga. App. 100, 102 (3) (325 SE2d 620) (overruled on other grounds, Hubbard v. State, 176 Ga. App. 622, 623 (1) (337 SE2d 60)) and Hunt v. State, 147 Ga. App. 787, 788 (250 SE2d 517). On the other hand, there also are cases which require the physical presence of a defendant in the trial court in order to pursue a demand under OCGA § 17-7-170. Daniels v. State, 199 Ga. App. 400 (405 SE2d 88); Luke v. State, 180 Ga. App. 378, 379 (349 SE2d 391); Smith v. State, 169 Ga. App. 251, 253 (2) (312 SE2d 375); Hendricks v. State, 108 Ga. App. 259 (1) (132 SE2d 845).

In our view, the correct line of cases recognizes a difference in the language of the two statutes and does not attempt to graft the physical presence requirement of OCGA § 17-7-171 (b) onto OCGA § 17-7-170. OCGA § 17-7-170 is satisfied if a defendant is available for trial, whether physically present in court or not. Hendricks and its progeny, including Smith, Luke and Daniels, are overruled to the extent they conflict with our holding in the case sub judice. Nonetheless, we note that the decision in Luke would not have been different under our reasoning since that defendant, being incarcerated by a different sovereign, was not available for trial since there is no inherent authority in a court of this State to compel his presence under those circumstances. See Hunt. In contrast to Luke and Hunt, in the case sub judice, the superior court had authority to compel defendant’s presence for trial, therefore OCGA § 17-7-170 was fully satisfied since defendant was available for trial. Flagg v. State, 11 Ga. App. 37, 38 (2), 39 (4) (74 SE 562). The superior court did not err in granting defendant’s motion to acquit.

Judgment affirmed.

Sognier, C. J., Carley, P. J., Cooper, J., and Judge Arnold Shulman concur. Birdsong, P. J., Pope, Beasley and Andrews, JJ., concur specially.

Andrews, Judge,

concurring specially.

While I agree with the result of the majority, I disagree with the majority’s analysis of OCGA § 17-7-170 and with overruling Daniels v. State, 199 Ga. App. 400 (405 SE2d 88) (1991); Luke v. State, 180 Ga. App. 378 (349 SE2d 391) (1986); Smith v. State, 169 Ga. App. 251, 253 (2) (312 SE2d 375) (1983); and Hendricks v. State, 108 Ga. App. 259 (1) (132 SE2d 845) (1963), because I believe the history of OCGA § 17-7-170, including its origins in the common law, reflects that the defendant’s presence or lack of voluntary absence is required to trigger discharge and acquittal under that section.

The majority rests its conclusion that the legislature meant to require presence in capital felonies, but not in other crimes, on a comparison of the language of Sections 17-7-170 and 17-7-171. Section 17-7-171, concerned with capital felonies only, specifically mandates that “the defendant [be] present in court announcing ready for trial and requesting a trial on the indictment.” This section was not enacted until 1952. Ga. Laws 1952, p. 299, §§ 1, 2, as amended.

Section 17-7-170 had its origins in the English Habeas Corpus Act of 1679, as incorporated into the law of Georgia. Watkins, Digest of the Laws of Georgia 202 (1800); Schley, Digest of the English Statutes of Force in the State of Georgia 262, 272 (1826). Paragraph VII (2) of the Habeas Corpus Act provides “if any person or persons committed as aforesaid, upon his prayer or petition in open court the first week of the term or first day of the sessions of oyer and terminer and general gaol-delivery, to be brought to his trial, shall not be indicted and tried the second term, sessions of oyer and terminer or general gaol-delivery, after his commitment, or upon his trial shall be acquitted, he shall be discharged from his imprisonment.” The primary object of this Act was release from prison of the accused. The principles of the Habeas Corpus Act were made a part of Georgia’s original and later Constitutions, and the Act in its entirety printed with them as an Appendix. Ga. Const., Art. LX (1777); Watkins, supra at 16 (1800).

Georgia’s Penal Code was enacted by the legislature in 1817. Prince’s Digest of Georgia Laws, p. 344 et seq. (1820). Section XXIV of that Code states that “[e]very person, against whom a bill of indictment is found, shall be tried at the term of the court the indictment is found, unless the absence of a material witness or witnesses, or the principles of justice, should require a postponement of the trial, and then the court shall allow a traverse or postponement of the trial until the next term of the court; and any person, indicted for an offence not affecting his or her life, and demanding a trial, which demand shall be placed upon the minutes of the court, shall be discharged, upon his or her giving bail to appear at the next court; and if not tried at said court, shall be absolutely discharged and acquitted of the offence contained in the indictment: provided, that at both terms juries were impanelled and able to try such offender; and every person against whom a bill of indictment has been found, who appears and demands his or her trial, at the first term after such bill shall have been found, and the officer prosecuting in behalf of the people cannot assign some legal or satisfactory reason for wishing a postponement of the trial, such as the absence of a material witness or witnesses, and a well-grounded expectation of being able to proceed on said trial at the next term; then the person so indicted, and demanding his or her trial, shall be absolutely discharged and acquitted of the offence contained and charged in the indictment.” (Emphasis supplied.) This added to the basic habeas corpus principle of release from custody the mandatory acquittal if not so tried upon demand.

In 1833, a new Penal Code was passed. Ga. Laws, 1833, p. 143 et seq.; Cobb’s Digest of Georgia Laws 832 et seq. (1851). Section XXIV of the 1817 Code was divided into two sections. The portion of that section set out above before the colon became Section 17, while the section following the colon became Section 18. It provided that “[a]ny person against whom a bill of indictment is found for an offence not affecting his or her life, may demand a trial at the term when the indictment is found, or at the next succeeding term thereafter, which demand shall be placed upon the minutes of the court; and if such person shall not be tried at the term when the demand is made, or at the next succeeding term thereafter, Provided, that at both terms there were juries empaneled and qualified to try such prisoner, then he or she shall be absolutely discharged and acquitted of the offense charged in the indictment.”

Also to be considered in analyzing OCGA § 17-7-170 is the development of bail in criminal cases at common law and in the colonies. The 1777 Constitution provided that excessive bail would not be demanded. Ga. Const., Art. LIX (1777); Watkins, supra at 15 (1800). It did not mean, however, that bail was available to all charged with crimes. English law at that time provided that no justice of the peace would bail those accused of murder, manslaughter, escape from prison, arson, persons outlawed, and those caught in the act of committing any felony. Bail was a matter of discretion for the justices of the peace for those charged with other felonies and not caught in the act, accessories to felonies, and thieves openly defamed and known. The only persons who had to be bailed by the justices of the peace upon offering sufficient surety were those of good fame charged with mere suspicion of manslaughter or petit larceny or other felonies not included above or accessory to a felony. Only the court of Kings Bench had the discretionary power to grant bail in any case. 4 W. Blackstone, Commentaries * 298-299. When the accused was admitted to bail, it was very different from modern bail. The accused and his sureties having posted security for his appearance, the accused was then to continue in the “friendly custody” of the sureties instead of going to gaol. The sureties were liable to suffer the punishment to which the accused was exposed if he did not appear and the justice or magistrate having set the bail was subject to being fined. Id. at * 297; 2 Pollock & Maitland, History of English Law 589.

Georgia did not recognize an absolute right to bail. Vanderford v. Brand, 126 Ga. 67, 69 (2) (54 SE 822) (1906); State v. Howell, R. M. Charlt. 120 (Ga. Super. 1821). When an accused was admitted to bail, the condition was not merely that he appear when summoned, but that he remain in attendance on the court until acquitted or in some other manner discharged by the court. Dennard v. State, 2 Ga. 137, 138 (1) (1847). There were two terms of superior court a year held in each county and if an accused was convicted, there was no higher court to which he could appeal. Smith, The Early Georgia Constitutions, 16 Ga. B. J. 273, 283-287 (1954). A second trial before a “special jury” could be requested after which the prisoner served the sentence imposed. Id.

It was not until 1921 that it was judicially established that a person accused of a non-capital felony was entitled, after indictment, to bail as a matter of right. Newsome v. Scott, 151 Ga. 639, 643-645 (107 SE 854) (1921).

The cases dealing with demand for trial under OCGA § 17-7-170 and its predecessors repeatedly allude to the necessity of the accused’s presence and waiver of the demand by voluntary absence. “Under the statute the only prerequisite to a discharge after the second term is that demand shall have been made and allowed, and qualified juries impaneled; but, upon general principles, our courts have raised another exception, namely, that the failure to try be not due to the voluntary act of the prisoner; as, for instance, voluntary absence from court, or obtaining a postponement to another term, and the like. In all such cases, the prisoner will be held to have waived his demand. ... It is not incumbent upon the accused or his counsel to make any further motion or demand at the second term; they may sit mute. The demand having been regularly and lawfully made, the accused may thenceforward rely upon his right to a discharge if the State fails to comply by the end of the second term with the demand already made; the only duty imposed upon him being that he be not voluntarily absent from the court, and that he shall have done no other act which in law would amount to a waiver. . . . From this it necessarily results . . . that the absence of the accused after the second term, when his counsel moves for a completion of the record by an order of discharge and acquittal, is not reason for refusing to grant the order.” (Citations and punctuation omitted and emphasis supplied.) Flagg v. State, 11 Ga. App. 37, 39-40 (1, 2, & 3) (74 SE 562) (1912). “While voluntary absence of the defendant on the call of his case would be a waiver of his demand, yet, before the State can take advantage of this, the case must be called by the prosecuting attorney and the defendant given an opportunity to respond.” (Emphasis supplied.) Mager v. State, 21 Ga. App. 139 (3) (94 SE 82) (1917). “The defendant, it is true, may waive his right to insist upon a demand. If he should absent himself from the court, . . ., affirmatively showing an intention not to insist upon his demand, a waiver would be implied.” (Emphasis supplied.) Thornton v. State, 7 Ga. App. 752, 753 (67 SE 1055) (1910). See Durham v. State, 9 Ga. 306 (1851); Harris v. State, 84 Ga. App. 1, 3 (65 SE2d 267) (1951).

The cases sought to be overruled by the majority, Daniels v. State, supra; Luke v. State, supra; Smith v. State, supra; and Hendricks v. State, supra, all fall within the rationale set out above.

In Daniels, the accused was an out-of-state resident who was not subject to the subpoena power of the Georgia court because he had not come into Georgia to subject himself to that power during the March term in which his demand was filed on the last day. While he was arraigned in the June term, he was not entitled to be discharged in the September term because he had not been present in Georgia to pursue a trial during the March term.

In Luke, the defendant had been in State custody on the charge involved when he filed his demand for trial. He was then released to the custody of the federal courts for trial on federal charges. He remained in federal custody despite the efforts of the State to obtain his presence for trial pursuant to the Interstate Agreement on Detainers. OCGA § 42-6-1 et seq. Two terms with juries present passed while this was occurring. The court denied discharge and acquittal because “[t]here is no inherent authority in a court of this state to compel an accused’s presence or in-court attendance where such defendant is incarcerated by or in the control of a different sovereign. [Cits.]” Luke, supra at 379. The court also found that Luke had affirmatively contributed to the delay by his actions while in federal custody and had not demanded trial under the Interstate Agreement on Detainers, OCGA § 42-6-20 et seq.

Under these circumstances, Luke held that a speedy trial is available under the Interstate Agreement on Detainers, OCGA § 42-6-20 et seq.; not OCGA § 17-7-170. Luke relied upon Hunt v. State, 147 Ga. App. 787 (250 SE2d 517) (1978), one of the cases cited by the majority in support of its position here. That case also dealt with an accused who was in federal custody. Hunt, who was incarcerated under a federal sentence, filed his demand for trial under OCGA § 17-7-170. This court held, not that presence was not required under that section as stated by the majority, but that OCGA § 17-7-170 was not applicable to the situation and the demand filed under it was not effective because the defendant “was not physically present or within the subpoena power of the courts of the State of Georgia.” Id. at 789. Johnson v. State, 154 Ga. App. 512 (268 SE2d 782) (1980). In Hunt, the trial was held within 120 days of the arrival of the prisoner in the receiving state as mandated under the Interstate Agreement on Detainers, OCGA § 42-6-20, Art. IV (c). The State used that agreement to obtain Hunt’s presence, the only mechanism available to it for that purpose.

Decided October 15, 1991.

Ralph L. Van Pelt, Jr., District Attorney, Mary Jane Palumbo, Assistant District Attorney, for appellant.

Christopher A. Townley, for appellee.

Smith dealt not with presence but with whether the accused had filed an adequate demand initially.

In Hendricks, the accused failed to demonstrate that there were juries impaneled and that he was present in court demanding his trial.

Ciprotti v. State, 190 Ga. App. 639 (379 SE2d 802) (1989), also relied upon by the majority, is physical precedent only, not binding on this court. Rule 35 (b). To the extent that it can be read as standing for the proposition that presence is not required, it should be overruled.

Finally, the majority cites State v. Crapse, 173 Ga. App. 100 (325 SE2d 620) (1984). In that case, the discussion of the requirement of presence in non-capital cases is dicta because defendant had been released from civil commitment to a mental hospital and three terms had passed without trial, entitling him to discharge without relying on the State’s argument that the statute was “tolled” while he was committed.

For the reasons stated above, I believe that Daniels, Luke, Smith, and Hendricks were correctly decided. In the present case, the State had failed to take steps to obtain an accused who was in the custody of the Georgia prison system and therefore subject to the legal process of the State for trial. The State’s failure to secure Collins’ presence when he was involuntarily absent and subject to its legal process entitled him to discharge and acquittal. Therefore, I concur in the judgment reached by the majority.

I am authorized to state that Presiding Judge Birdsong, Judge Pope and Judge Beasley join in this special concurrence.

       The first penal code never went into operation. On February 24, 1817, the penal code of December 19, 1816, went into effect by proclamation of the governor and operated until December 20, 1817, the effective date of the legislatively enacted 1817 Code. Prince’s Digest of Georgia Laws, p. 344, fn. (1820).

       The Georgia Constitution was adopted before that of the United States, which was ratified and adopted by Georgia January 2, 1788. Code of Georgia 959 (1861). The Georgia bill of rights was enacted in 1861 by way of a Declaration of Fundamental Principles. Id. The federal Bill of Rights was not proposed by Congress until September 25, 1789. It was ratified by the required number of states on December 15, 1791. The Fourteenth Amendment was ratified on July 28, 1886. Id.


text:
    A91A1143.
    GUEST v. THE STATE.
    (411 SE2d 364)
   Sognier, Chief Judge.

Jerry Charles Guest appeals from his conviction for child molestation, contending in his sole enumeration of error that the trial court erred by permitting the State to introduce evidence bolstering the victim’s credibility. We agree and reverse.

The record reveals that the victim in this case was appellant’s ten-year-old daughter. On direct examination, the State’s first witness, Sergeant Steven Waits of the DeKalb County Police Department, testified that upon talking with the police officer who first interviewed the victim and viewing a videotape of her statement, he “felt there was enough evidence to seek a warrant for [appellant’s] arrest.” On cross-examination, defense counsel questioned Waits regarding the fact that before taking out the warrant he had not talked with the doctor who examined the victim, the family, or any friends of the victim. On redirect examination, Waits testified that his basis for obtaining the arrest warrant for appellant was that he had viewed the videotape of the victim’s statement and “felt that the [victim] had been qualified on the tape and had appeared credible in my eyes.” Appellant’s counsel objected to this testimony on the ground that credibility of the victim was a matter within the province of the jury, and moved for a mistrial. After the prosecutor responded that the defense had gone into “this exact area” on cross-examination, the trial court overruled the objection and denied the motion.

1. “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80. This case is controlled by the explicit holding in State v. Oliver, 188 Ga. App. 47, 50 (2) (372 SE2d 256) (1988), that “[i]n no circumstance may a witness’ credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth.” Although it is true, as the State argues, that in some cases the State may be permitted to elicit otherwise objectionable testimony when the defense “opens the door,” that reasoning has not been applied to evidence regarding credibility. See Smith v. State, 259 Ga. 135, 138 (2) (377 SE2d 158) (1989) (evidence offered in response to evidence impeaching the victim witness’ believability under oath); compare Carr v. State, 259 Ga. 318, 320 (1) (380 SE2d 700) (1989) (admission of testimony that State caused witness to take polygraph test not error where defense opened door by inquiring into police investigation, because evidence that polygraph test was administered does not always require reversal, no inference as to result of polygraph test could be raised, and defendant did not raise credibility — bolstering issue below).

In Smith, supra, several defense witnesses testified at trial that they would not believe the child molestation victim under oath. On appeal, the appellant contended the trial court erred by allowing the State’s child abuse expert to testify in rebuttal that she had interviewed the victim and, in her opinion, the victim was telling the truth about her accusation against appellant in those interviews. The Supreme Court agreed, holding that “[t]he rule in this state is that ‘an expert may not testify as to his opinion as to the existence vel non of a fact . . . unless the inference to be drawn from facts in evidence is beyond the ken of the jurors — that is, unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing — from facts in evidence — such an inference for themselves. [Cit.]’ [Cit.] In the present case, the truthfulness or credibility of the victim was not beyond the ken of the jurors. The trial court therefore erred in permitting the testimony in question. [Cits.]” Id. at 138 (2). Here, as in Smith, the credibility of the victim was exclusively within the province of the jury and was impermissibly bolstered by the judgment of another witness that she was credible.

We find this case distinguishable from Stamey v. State, 194 Ga. App. 305-306 (1) (a) (390 SE2d 409) (1990), a child molestation case cited by the State in which this court refused to reverse the conviction because of ineffective assistance of counsel despite trial counsel’s failure to object to a social worker’s testimony that she found the victim credible. Although we recognized in Stamey that the social worker’s testimony was offensive to the holdings in Oliver and Smith, supra, we found that her testimony that the victim was credible “was not a significant addition to her main testimony, so as to displace the jury’s minds on the issue and usurp their authority” because she previously had testified extensively regarding the criteria used to measure a child victim’s credibility, which the jury then could apply to the victim’s testimony and form its own opinion of her credibility. Id. at 306 (1) (a). No such evidence of the standards by which to judge child victim credibility was introduced in the case sub judice.

Given that the admission of testimony bolstering the victim’s credibility was found to be reversible error in Smith, supra, where the witness offering the testimony was an expert in child abuse who had personally interviewed the victim, a fortiori the admission of such testimony must be considered reversible error in the case at bar where the witness offering it was not an expert and had observed the victim only on videotape. Such testimony is inherently prejudicial. As proper objection was made to Waits’ testimony, the trial court committed reversible error by overruling the objection. Smith, supra at 138 (2).

2. The State’s final witness in its case in chief, the victim’s fourth grade teacher, testified without objection that she was familiar with the victim’s general reputation in the school community; that the victim’s general reputation was good; and that she would believe the victim under oath.

Although appellant waived any objection to the testimony of the teacher by failing to object below, because we reverse the judgment below we note for purposes of retrial that “ ‘[u]ntil the adverse party attacks the credibility of a witness, either for bad character or because of contradictory statements, the party calling him can not introduce evidence in support of his character for veracity. . . .’ [Cits.]” (Emphasis omitted.) P. D. v. State of Ga., 151 Ga. App. 662, 665 (5) (261 SE2d 413) (1979). See OCGA §§ 24-2-2; 24-9-84; Duncan v. State, 58 Ga. App. 551, 552 (1) (199 SE 319) (1938).

Decided October 15, 1991.

Nancy K. Peterson, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, J. Thomas Morgan III, Anne G. Maseth, Assistant District Attorneys, for appellee.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.


author: Judge Arnold Shulman.

text:
    A91A1218.
    HERREN v. THE STATE.
    (411 SE2d 552)
   Judge Arnold Shulman.

Appellant Woody Herren was convicted of obstructing an officer. He contends on appeal that the evidence did not support the jury’s verdict and that the trial court erred in failing to give certain jury charges which he requested.

On the day prior to the events for which the appellant was on trial, a deputy sheriff came to the home of Vincent Herren, the appellant’s brother, attempting to serve divorce papers on him. Vincent refused to accept the papers and slammed the door in the deputy’s face, whereupon the deputy went to Vincent’s place of employment to determine when he was expected back at work. After learning that Vincent was not expected back at work until Monday morning, the deputy swore out a warrant for his arrest for obstructing an officer. Accompanied by a backup officer, the deputy returned to Vincent’s house the following day to execute this warrant and to attempt again to serve the divorce papers on him. The appellant, who was in the process of moving to Georgia from Florida, was present at Vincent’s house at this time, having arrived there earlier that day with a truckload of furniture. The deputy testified that upon his arrival, the appellant immediately confronted him and asked him, “Are you the son-of-a-bitch that come to my job yesterday looking for me?” (Emphasis supplied.) The deputy stated that he asked the appellant, “Are you Mr. Herren?” and that the appellant answered, “Yes I am.” The deputy testified that he then informed the appellant that he was under arrest for obstruction of an officer and would be taken to jail and that the appellant responded, “Let’s go.” He stated that before leaving he asked the appellant if anyone else was in the house and that the appellant replied: “I ain’t got to answer that. I ain’t going to answer that.” Although the officers checked inside and found no one, there was evidence from which the jury could have inferred that the appellant’s brother, Vincent, had in fact been on the premises at the time the officers arrived. The deputy testified that after being transported to the jail, the appellant informed him for the first time that he was not Vincent and that he had arrested the wrong person. Held:

Decided October 15, 1991.

Underwood & Mathis, Billy C. Mathis, Jr., for appellant.

Britt R. Priddy, District Attorney, for appellee.

1. The offense of obstructing an officer is committed when “[a] person . . . knowingly and wilfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties. . . .” OCGA § 16-10-24. “In Hudson v. State, 135 Ga. App. 739 (2) (218 SE2d 905) (1975), we held that a factfinder could find that refusal to provide identification to an officer could hinder the officer in the execution of the officer’s duties.” Bailey v. State, 190 Ga. App. 683, 684 (379 SE2d 816) (1989). While the appellant in the present case was never asked to provide identification, a rational trier of fact could reasonably have concluded beyond a reasonable doubt from the evidence that by his statements and actions he had deliberately misled the deputy into mistaking him for his brother. Inasmuch as such conduct could reasonably be considered to have obstructed or hindered the deputy in the performance of his official duties, we hold that the trial court did not err in denying the appellant’s motion for directed verdict of acquittal.

2. All of the requested jury charges at issue involved types or examples of conduct which will or will not support a conviction of obstructing an officer. We conclude that to the extent these requested charges were adjusted to the evidence, the legal principles embodied therein were adequately covered by the court’s charge as given. We accordingly hold that this enumeration of error provides no ground for reversal.

Judgment affirmed.

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


text:
    A91A1563.
    BROWN v. THE STATE.
    (411 SE2d 366)
   Birdsong, Presiding Judge.

Brown was tried on three counts of robbery by intimidation and convicted of two. He appeals, contending that the trial court erred (1) in denying his motion for new trial or, in the alternative for a continuance, in order to obtain more appropriate clothing for his appearanee in court; and (2) in allowing the jury’s request to view previously shown videotaped evidence in slow motion and freeze-frame during their deliberations. Held:

1. Appellant was brought to court wearing tennis shoes and a light blue jogging suit without any markings or identification of any kind. His complaint is that he was forced to appear in court in a dirty, wrinkled and cigarette-burned jogging suit which belonged to another inmate even though another jogging suit in better condition was available at the jail, and that the State failed to assist him in making a more appropriate appearance before the court.

We find no showing of prejudice or harm to appellant requiring reversal by his appearance at trial. Nor has appellant established that the State either knowingly denied him more acceptable attire or had any duty to procure it. Indeed, the trial judge commented that he saw no problem with appellant’s appearance, and the photographs taken with the court’s permission for inclusion in the record indicate nothing to distinguish his clothing as prison garb or different from normal attire. This enumeration of error is without merit. McCarr v. State, 197 Ga. App. 124 (3) (397 SE2d 711); Kerr v. State, 194 Ga. App. 604 (3) (391 SE2d 449). See also State v. Pike, 253 Ga. 304 (320 SE2d 355), reversing Pike v. State, 169 Ga. App. 358 (312 SE2d 808), upon which appellant relies.

2. We likewise find no error in allowing the jury during its deliberations to view at slower speed the surveillance tapes taken at two convenience stores during the robberies in which appellant was alleged to have participated. The videotapes were not altered or enhanced so as to present “different and distorted images” from what was admitted in evidence during the trial proceedings, as appellant argues. The first tape was shown exactly as at trial except for a pause at one frame as requested by a juror. The court permitted the second tape to be slowed down and replayed “because the jury showed concern about it.”

“This was not ‘new evidence.’ It was a second viewing of the same evidence. [Cits.] Our appellate courts have recognized the general rule that the trial court has discretion to ‘hear again’ evidence previously presented. [Cits.]” Haynes v. State, 180 Ga. App. 202 (2) (349 SE2d 208). It has also been established that “the better view is to allow the trial judge to exercise a sound discretion in determining whether or not, upon a request by the jury, after commencement of deliberations, the evidence should be reopened and new evidence admitted.” State v. Roberts, 247 Ga. 456, 458 (277 SE2d 644). Under the circumstances here, we find no abuse of discretion. See Aikens v. State, 194 Ga. App. 195 (2) (390 SE2d 102).

Judgment affirmed.

Pope and Cooper, JJ., concur.

Decided October 15, 1991.

Shaw, Maddox, Graham, Monk & Boling, William H. Boling, Jr., for appellant.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.


text:
    A91A1604.
    DARAS v. THE STATE.
    (411 SE2d 367)
   Birdsong, Presiding Judge.

Joseph Daras appeals his judgment of conviction of theft by receiving stolen property (motor vehicle), driving under the influence, and speeding, and the sentence. He enumerates, based “in particular” on the general grounds, that the trial court erred in denying his motion for directed verdict of acquittal. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). And, the test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) “is the proper test for [an appellate court to employ] when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436); Williams v. State, 199 Ga. App. 566, 567 (1) (405 SE2d 716).

(a) Regarding the offense of speeding, the trial transcript reflects inter alia the following: The stolen vehicle, although old, had a rebuilt engine with oversize pistons. The car was observed on 1-75 in Cherokee County in the Highway 92 bridge area traveling at a very high rate of speed. The car was paced, albeit for only a few seconds, at about 100 miles per hour. Police car speedometers are calibrated on a regular basis, and although the exact date of calibration was unknown, the car had been recently calibrated within months of this incident. Sergeant Bishop had been employed by the Cherokee County Sheriff’s Department for one-and-one-half years and had been assigned to traffic enforcement for eight months. He previously was a sergeant with the Woodstock Police Department in charge of its traffic unit, had received various training in traffic enforcement, and had issued 300 to 500 traffic citations. He testified, without objection that the speed limit in that part of the county where the incident occurred is 65 and not 55 miles per hour. Further, appellant told the arresting officer that he was driving at a high rate of speed because “he was in a hurry to get home.” Appellant admitted in his in-court testimony that he may have been going faster than the speed limit, but he did not believe he was going 95 or 100 miles per hour.

A speed of “about 100 miles an hour” would violate any speed limit established within the geographical boundaries of this state. OCGA §§ 40-6-181; 40-6-182; 40-6-183. The speed of appellant’s vehicle, as ascertained by pacing, was relevant. As a general rule, Georgia law favors the admission of any relevant evidence no matter how slight its probative value. Whisnant v. State, 178 Ga. App. 742, 743 (1) (344 SE2d 536). The length of time and circumstances under which pacing was conducted affects only the weight and not the admissibility of the evidence pertaining to the paced speed of the vehicle.

(b) There has been substantial compliance with the provisions of OCGA § 40-6-392 which showed (by Intoximeter 3000 test) that he had a blood alcohol count of .14. No additional testing was requested by defendant after being advised of this right by the officer.

(c) Regarding the offense of theft by receiving stolen property, a motor vehicle, the trial transcript reflects inter alia the following: The vehicle was stolen from a parking lot between the hours of 7:00 and 8:00 p.m. The owner’s vehicle registration and insurance forms were in the glove compartment both when the car was stolen and after it was returned to the owner. The vehicle had a Delta parking space authorization on the windshield. Appellant could not produce a driver’s license or proof of insurance, and claimed that the car belonged to a friend.

Appellant made an in-court admission that he had received the car from a girl named “Nicky.” Appellant knew the girl but “not great,” and did not know her last name.

A defendant’s knowledge that goods are stolen can be established by both direct and circumstantial evidence. See Birdsong v. State, 120 Ga. 850, 853 (3) (48 SE 329). Although guilty knowledge is essential to a conviction of the accused, such knowledge can be inferred from circumstances which would, in the opinion of the jury, lead a reasonable man to believe that the goods were stolen. Id. at 850 (3). And, in a theft by receiving stolen property, where the principal thief is unknown, there is no burden on the State to prove that the thief was not the defendant. Redding v. State, 192 Ga. App. 325 (384 SE2d 910). Further, in this case, the trial court instructed the jury as to the inference of guilt that may be drawn from the recent, unexplained possession of stolen property, and that an unexplained possession of recently stolen property will not standing alone support an inference of guilty nor authorize a conviction of theft by receiving stolen property. Appellant neither objected nor took exception to this instruction. “Unexplained possession of recently stolen property, alone, is not sufficient to support a conviction for receiving stolen property but guilt may be inferred from possession in conjunction with other evidence of knowledge.” Abner v. State, 196 Ga. App. 752, 753 (397 SE2d 36). “Here the evidence showed the [car] contained registration papers in the name of the owner and [insurance papers] in the owner’s name. ...” Id. There is also evidence by defendant’s own in-court admission that he obtained the vehicle from a person whom he knew, but “not great.” This would constitute some evidence that the car belonged to someone other than defendant’s acquaintance, Nicky, who according to the defendant had driven him earlier in the vehicle. This independent evidence, together with the permissible inference, above discussed, was ample evidence of guilt for a rational jury to decide whether that evidence, circumstantial though it may be, was sufficient to warrant a conviction for theft by receiving stolen property as averred. Id. at 753 (1).

Decided October 15, 1991.

Michael E. McLaughlin, for appellant.

Garry T. Moss, District Attorney, Gregory A. Hicks, Assistant District Attorney, for appellee.

2. To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could have found that it excluded every reasonable hypothesis except that of the defendant’s guilt. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses charged. Jackson v. Virginia, supra. The trial court did not err in denying appellant’s motions for directed verdict of acquittal.

Judgment affirmed.

Pope and Cooper, JJ., concur.