text:
    A92A0149.
    HARRIS v. THE STATE. JACKSON v. THE STATE.
    A92A0150.
    (418 SE2d 394)
   Johnson, Judge.

On November 10, 1989, three men armed with a handgun robbed Eva Dallas (Dallas) of her car, car keys, money and a pizza. One of the men, Michael Sheppard (Sheppard), confessed to having committed the armed robbery of Dallas and implicated appellants Craig Harris (Harris) and Brian Jackson (Jackson) as accomplices. Thereafter, Harris and Jackson were convicted of armed robbery by a jury. They appeal from their convictions and the denial of their motions for new trial. We affirm.

1. In Case No. A92A0149, Harris contends in his first enumeration of error that the evidence presented at trial was insufficient to uphold his conviction.

After reviewing the record, we find that there was sufficient evidence to support Harris’ conviction of armed robbery. The transcript reveals testimony from Sheppard that while Jackson pointed the gun at Dallas, Harris took money and a pizza from her. This testimony was corroborated by Dallas’ testimony. The trial court correctly charged the jury on the principle of party to a crime.

A person cannot be convicted of a felony solely upon the uncorroborated testimony of an accomplice. Shumake v. State, 159 Ga. App. 141 (282 SE2d 756) (1981). However, where there is corroborating testimony, as in the instant case, the corroborating evidence need only be slight to be sufficient. Shumake, supra. The sufficiency of corroborating evidence should be “ ‘peculiarly a matter for the jury to determine.’ [Cits.]” Harris v. State, 165 Ga. App. 186, 187 (299 SE2d 393) (1983).

Considering the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found Harris guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In Case Nos. A92A0149 and A92A0150, both Harris and Jackson enumerate as error the trial court’s jury instructions on armed robbery and the lesser included offense of robbery by intimidation.

The transcript reveals that the trial court charged the jury on the lesser included offense of robbery by intimidation as follows: “If you find present in the case before you all elements of armed robbery, but you do not find that any offensive weapon or thing having the appearance of such was used, but that the taking was accomplished by the accused putting the alleged victim in such fear as in the common experience of mankind would create in the mind of the victim an apprehension of danger to her life or limb, and if you so believe beyond a reasonable doubt, then you would be authorized to find that defendant or those defendants guilty of robbery by intimidation.”

After the jury had been excused to begin their deliberations, they submitted the following question to the court: “If a gun is present, can the charge be intimidation or must it be armed robbery?” The court then called the jurors back into the courtroom and re-charged them on the definition of armed robbery, which provides that robbery by intimidation is a lesser included offense. See OCGA § 16-8-41 (a).

Decided April 15, 1992.

Hartley, Puls & O’Connor, Alton G. Hartley, for appellant (case no. A92A0149).

King & King, David H. Jones, for appellant (case no. A92A0150).

Robert E. Wilson, District Attorney, Elisabeth G. MacNamara, Jeffrey H. Brickman, J. George Guise, Assistant District Attorneys, for appellee.

Testimony from Sheppard, Jackson, and Harris showed at the very least that a gun was present on the person of Jackson while the robbery was taking place. While there is conflicting evidence as to whether the gun was used in the commission of the robbery, there was testimony from both Sheppard and the victim, Dallas, on that issue as noted above. The appellants assert that the trial court should have charged the jury more thoroughly on robbery by intimidation to make it clear to them that even if they found that a weapon was present at the time of the robbery, they would have to further find that it was used in the commission of the crime to conclude that an armed robbery took place.

The court’s jury charge and re-charge on armed robbery and robbery by intimidation came directly from the pattern jury instructions. The charge was both a complete and an accurate statement of the principles of law involved. Therefore, no error was committed by the trial court and its judgment denying appellants’ motion for new trial shall not be disturbed.

Judgments affirmed.

Carley, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A92A0158.
    ROLLING v. THE STATE.
    (418 SE2d 396)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of violating Georgia’s Controlled Substances Act, selling cocaine. This appeal followed. Held:

1. Defendant contends the trial court erred in denying his motion for continuance, arguing that his trial attorney had only seven days to prepare for trial. This contention is not supported by the record.

“Error must be shown affirmatively by the record, and not by mere recitations in a brief. [Cits.]” Standridge v. State, 196 Ga. App. 697, 698 (3) (396 SE2d 804). In the case sub judice, defendant fails to make reference to the record showing that a motion for continuance was made before trial. Further, this Court’s examination of the record and trial transcript reveals no such motion. Consequently, this enumeration presents nothing for review. See Rule 15 (c) (3) (i) of the Rules of the Court of Appeals of the State of Georgia.

Decided April 15, 1992.

Rodney M. Keys, for appellant.

Britt R. Priddy, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

2. Defendant contends the trial court erred in allowing the State Crime Laboratory expert to testify that the substance defendant sold to an undercover officer tested positive for cocaine, arguing the State failed to provide a copy of the expert’s scientific report ten days prior to trial as is required by OCGA § 17-7-211 (b).

A request for disclosure of scientific reports “shall be made by the defendant in writing at arraignment or within any reasonable time prior to trial. If such written request is not made at arraignment, it shall be within the sound discretion of the trial judge to determine in each case what constitutes a reasonable time prior to trial.” OCGA § 17-7-211 (b). The trial transcript reveals that defendant’s demand for scientific reports was made after arraignment and seven days prior to trial. The trial transcript also shows that defendant’s trial attorney received a copy of the relevant scientific report seven days prior to trial. Further, defendant’s trial counsel acknowledged that the State had displayed “what purports to be an arraignment package cover sheet indicating that [the defendant] personally had the scientific report . . .” Under these circumstances, the trial court did not abuse its discretion in denying defendant’s motion to exclude the State Crime Laboratory expert’s testimony identifying the substance defendant sold to an undercover officer as cocaine. State v. Meminger, 249 Ga. 561, 563 (2) (292 SE2d 681).

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A92A0201.
    ALFORD v. THE STATE.
    (418 SE2d 397)
   Johnson, Judge.

Robert Alford III (Alford) was charged in one indictment with two counts of armed robbery, two counts of aggravated assault and four counts of shoplifting. After a jury trial, Alford was found guilty of all eight counts. The trial court ruled that both of the aggravated assault counts merged with the armed robbery counts and that the four shoplifting counts merged into only two counts of shoplifting. The trial court denied Alford’s motion for a new trial. Alford appeals only from his conviction of one of the armed robbery counts. He does not challenge his convictions for any of the other offenses.

Decided April 15, 1992.

John H. Tarpley, for appellant.

Alford’s sole enumeration of error is that there was insufficient evidence at trial to convict him of the armed robbery alleged to have occurred on December 15, 1989. Alford argues that there is no evidence that he used an offensive weapon to effectuate the robbery because the victim testified that the knife he used was closed and could be held in the palm of one’s hand. This argument is without merit.

“OCGA § 16-8-41 (a) provides, in relevant part that a person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon. This section clearly contemplates that the offensive weapon be used as a concomitant to a taking which involves the use of actual force or intimidation (constructive force) against another person. (U)nder OCGA § 16-8-41 an armed robbery is committed if the weapon has been used as an instrument of constructive, as well as actual force. When the Code speaks of force, it means actual violence; and when it speaks of intimidation, it still means force; not actual and direct, but exerted upon the person robbed, by operating upon his fears — the fear of injury to his person, or property, or character.” (Citations and punctuation omitted.) Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (1987).

In the instant case, the victim testified that Alford, on several occasions prior to December 15, 1989, stole beer from the store where she worked. The victim testified that on December 15, 1989, Alford entered the store and she approached him, saying, “You’re not taking any beer today.” Alford then reached in his pocket, pulled out a closed knife, gestured toward her with the knife, grabbed three “12-packs” of beer and left the store with the knife still in his hand. The victim testified that when Alford pulled out the knife, “I stopped, I froze, because it scared me.” Reviewing the victim’s testimony, along with the entire record on appeal, in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found Alford guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley, P. J., and Pope, J., concur.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Elisabeth G. MacNamara, J. George Guise, Assistant District Attorneys, for appellee.


author: Sognier, Chief Judge.

text:
    A92A0329.
    HAIRE v. SUBURBAN AUTO BODY, INC.
    (418 SE2d 163)
   Sognier, Chief Judge.

Scott Haire brought an action against Suburban Auto Body, Inc. (Suburban) to recover his car, which had been retained by Suburban pending satisfaction of a repair bill pursuant to OCGA § 40-3-54. Suburban answered, asserting defenses of failure to state a claim, unjust enrichment, and laches. A jury returned a verdict in favor of Suburban for $5,064 but granted possession of the car to Haire “upon payment.” Haire appeals from the judgment entered thereon.

The evidence at trial showed that appellant brought the car to appellee in October 1989 after it had sustained damage in a collision. After appellant rejected the initial estimate of the cost of repair as being too high, an adjustment was made, but conflicting evidence was adduced as to whether the adjustment consisted of appellee’s agreement to perform only certain basic repairs for a total charge of $1,000, as asserted by appellant, or to reduce its charges by $1,000 for a total charge of over $5,000, as claimed by appellee. In May 1990, after the car had been in appellee’s possession for several months and the repairs completed, appellee’s body shop manager telephoned appellant to inform him that the car was ready and the bill was approximately $5,163. Several months later appellant received a bill for $5,160.24 which included a notice that storage charges of $15 per day would begin to accrue. In September 1990, appellant hand delivered a letter to appellee disputing the amount charged and demanding the return of his car. When appellee refused to release the car, appellant filed this action.

1. Appellant first contends the trial court erred by denying his motion for a directed verdict as to his trover claim. We agree and reverse.

Appellee based its retention of appellant’s car on its assertion of a mechanic’s lien for the work done and materials furnished pursuant to OCGA § 40-3-54. Subsection (a) of that statute provides in pertinent part that such a lien may be asserted in several ways, including retention of the vehicle, until the lien is paid or satisfied through foreclosure. However, subsection (b) provides that “[i]f possession is retained . . . the owner-debtor may contest the validity of the amount claimed to be due by making written demand upon the lienholder. If upon receipt of such demand the lienholder fails to institute foreclosure proceedings within ten days where possession has been retained, . . . the lien is forfeited.” In this case, because appellant contested the validity of the amount claimed to be due and it is undisputed that appellee failed to institute foreclosure proceedings within ten days, appellee’s lien was forfeited. See Davison’s Auto Svc. Co. v. Security Ins. Co., 187 Ga. App. 220-221 (369 SE2d 538) (1988).

Although the trial judge recognized that the lien had, indeed, been forfeited because of appellee’s inaction and initially granted appellant’s motion for a directed verdict as to possession, the trial judge later reversed that ruling sua sponte and denied appellant’s motion. This was error. Although appellee may have had a claim against appellant for payment of the repair bill, the clear language of OCGA § 40-3-54 (b) providing for forfeiture of the lien under these circumstances can mean only that appellee’s retention of appellant’s car was unlawful. It follows that appellant was entitled to immediate possession, and the trial court erred by denying appellant’s motion for a directed verdict on this issue.

Because the jury erroneously determined that appellant was not entitled to possession upon the forfeiture of appellee’s lien, it did not award appellant a sum representing the reasonable hire of his car for the time period from September 28, 1990, when appellee’s lien was forfeited, until the date upon which the car was returned to appellant’s possession. See generally OCGA § 44-12-151 (3). Accordingly, a new trial must be held on this issue.

2. Appellant next enumerates as error the trial court’s denial of his motion for a directed verdict as to appellee’s claims for setoff and recoupment. Appellant argues that as appellee’s answer did not contain a counterclaim, appellee had no right to recover a monetary amount from appellant, and the trial court based its ruling allowing appellee a setoff on an inapplicable statute.

“[S]etoff and recoupment are counterclaims and not defenses. [Cit.]” Swim Dixie Pool Corp. v. Kraemer, 157 Ga. App. 748 (1) (278 SE2d 448) (1981). Further, in this case, since appellee’s claim for the cost of repairs, either under an oral contract or quantum meruit, arose from the same transaction which formed the subject matter of appellant’s claim against appellee, it was a compulsory counterclaim. OCGA § 9-11-13 (a). In its answer, appellee denominated all of its claims as defenses, not as counterclaims. Appellee did not attempt to amend its pleadings to add a counterclaim, and in any event this court has held that compulsory counterclaims may not be added by amendment where the defendant has knowledge of the claims at the time the defensive pleadings were prepared and filed in the first instance. Swim Dixie Pool Corp., supra at 749 (1).

However, OCGA § 9-11-8 (c) provides that “[w]hen a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleadings as if there had been a proper designation.” The consolidated pretrial order, signed by both parties, recites that appellee was asserting a claim against appellant for recovery of cost of repairs and materials. Given that language in the pretrial order and the prayer in appellee’s answer for “judgment against [appellant] for all repair costs made to his automobile plus storage fees incurred,” under the standard set forth in OCGA § 9-11-8 (c) we hold that the trial court correctly construed appellee’s answer, under notice pleading, as asserting this compulsory counterclaim.

Decided April 15, 1992.

H. Darrell Greene & Associates, H. Darrell Greene, Paul Shimek III, for appellant.

James E. Sherrill, for appellee.

We agree with appellant that in denying his motion the trial court erroneously applied OCGA § 44-12-154 to the facts sub judice. That statute pertains only to the right of a vendor holding title until purchase money is paid to set off his claim against the vendee when an action is brought by the vendee to recover personal property. Nonetheless, because we construe appellee’s claim to include a counterclaim for the cost of repairs and materials, we agree with the trial court that the issue of setoff and recoupment was properly for the jury. The trial court did not err by denying appellant’s motion for a directed verdict as to setoff and recoupment. However, after a new trial is held regarding the amount owed by appellee to appellant for reasonable hire of appellant’s car during the time it was unlawfully held by appellee, any amount awarded appellee by the jury in this case on its counterclaim for cost of repair must be set off against the sum awarded appellant as hire.

3. Because it will recur at retrial, we note that we agree with the trial court that, contrary to appellant’s contention, the date upon which appellee’s lien was forfeited is the proper date from which the jury must calculate the amount owed to appellant for reasonable hire.

Judgment affirmed in part, reversed in part, and case remanded.

McMurray, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A0359.
    BURTON et al. v. HAMILTON et al.
    (418 SE2d 398)
   Birdsong, Presiding Judge.

Appellants contest the dismissal of their appeal by the trial court under OCGA § 5-6-48 (c). After summary judgment was granted to appellees, appellants filed a timely notice of appeal on September 5, 1990, which designated a transcript for inclusion in the record. When no transcript was filed by February 6, 1991, appellees moved to dismiss the appeal, and the motion was granted on September 5, 1991. Appellants then filed an amended notice of appeal assigning the dismissal of their appeal as error. Held:

As appellants designated the transcript for inclusion in the record, they were responsible for preparation (OCGA § 5-6-41 (c)) and filing of that transcript within 30 days of filing the notice of appeal. OCGA § 5-6-42. Appellants made no effort to do this. On February 21, 1991, during the hearing on the motion to dismiss, the court reporter testified the appellants had not ordered the transcript. The 23-page transcript was finally filed on March 5,1991, more than 150 days after it was required.

Appellants have offered no reason or excuse for their failure to order the transcript other than to blame the clerk of court. The record shows, however, the clerk was not at fault. On September 6, 1990, one day after the notice of appeal was filed, the clerk sent appellants a statement of costs which included the notation, “when we receive transcript of evidence and your check for cost we will send the record. . . .” Further, on December 3, 1990, the clerk wrote appellants asking what should be done as the transcript had not been filed. Appellants, however, did not respond to the letter.

If a trial court finds there was unreasonable and inexcusable delay in filing a transcript and the delay was caused by the party responsible for preparation and filing of the transcript, the court may exercise its discretion and, if warranted, dismiss the appeal. OCGA § 5-6-48 (c); Baker v. Southern R. Co., 260 Ga. 115, 116 (390 SE2d 576). The order dismissing this appeal contains the requisite findings.

This appeal is unlike Baker v. Southern R. Co., supra, or Wagner v. Howell, 257 Ga. 801 (363 SE2d 759), in which transcripts were timely ordered, but not timely filed because of action by the court reporters. Here, the record shows affirmatively the 151-day delay between October 5, 1990, when the transcript was required to be filed, and March 5, 1991, when it was ultimately filed, was caused by appellants’ failure to order the transcript. Under the circumstances, OCGA § 5-6-48 (f) is inapplicable. Compare Baker, supra, and Wagner, supra.

Further, since the 150-day delay in filing the 23-page transcript actually and significantly impeded this appeal, the record supports the trial court’s finding that it was unreasonable. Also, as the delay was caused by appellants’ failure to order the transcript for more than 169 days after filing the notice of appeal, the record fully supports the finding that the delay was inexcusable. Appellants’ attempt to foist responsibility for their inaction on the clerk of court is without legal or factual support.

Decided April 15, 1992.

Hillman J. Toombs, for appellants.

Crisp, Oxford, McKelvey & Jones, Howard S. McKelvey, Jr., for appellees.

Accordingly, the trial court was authorized to consider whether dismissal was appropriate (Baker v. Southern R. Co., supra), and the trial court did not abuse its discretion by dismissing the appeal.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A0419.
    ROEBUCK v. SMITH.
    (418 SE2d 165)
   Birdsong, Presiding Judge.

The defendant mental health counselor was granted interlocutory appeal of the trial court’s denial of his motion to dismiss, contending the suit is a professional malpractice case for which no expert’s affidavit was timely filed as required by law at OCGA § 9-11-9.1 as amended.

Plaintiff Smith filed suit against Roebuck, an employee of defendant Highlands Mental Health Center, on June 28, 1991, alleging that on or about May 26, 1989, Roebuck subjected plaintiff to perverted mental health counseling which manipulated plaintiff’s confused mind and emotions. In his initial responsive pleading, Roebuck did not assert that an expert affidavit was required. See OCGA § 9-11-9.1 (e), (f). Roebuck did later file a motion to dismiss, whereon the trial court held this was a case alleging intentional tort and was not a professional malpractice case, and refused to dismiss. Plaintiff did file an affidavit on July 25, 1991, in an attempt to comply with § 9-11-9.1 (b), but appellant contends this affidavit was insufficient and was untimely as no extension of time was requested. Held:

Appellee Smith, pro se, alleged in his suit that on or about May 26, 1989, at about 4:00 p.m., during a counseling session for plaintiff’s emotional depression, defendant Roebuck subjected him to “perverted psychotherapy.” Appellee insists this is not a professional malpractice case and no affidavit is required; nevertheless, on July 25, 1991, he filed the affidavit of his present mental health counselor, as follows: that affiant is a licensed clinical social worker and employee of Cherokee Counseling & Psychological Associates, Inc., and is competent to testify to the matters contained in the affidavit, to wit, that “the plaintiff related to [affiant] that in May, 1989, the plaintiff began to have counseling sessions with [defendant] Roebuck, for mental depression and suicidal tendencies . . . [and] that the plaintiff related to [affiant] that on May 26, 1989, [defendant] Roebuck outlined a treatment session to the plaintiff which included the plaintiff taking off his clothes in the session, the defendant and the plaintiff exchanging clothes, and the defendant whipping the plaintiff. . . . Affiant states that the above-described treatment constitutes negligent mental counseling causing the plaintiff to regress rather than advance toward mental health. ...”

An expert affidavit is required to be filed where a suit alleges professional negligence and where the issue is the “defendant’s compliance with or deviation from the applicable standard of professional conduct,” which calls for “ ‘highly specialized expert knowledge with respect to which a layman can have no knowledge at all, and the court and jury must be dependent on expert evidence.’ [Cit.]” Jordan, Jones &c., Inc. v. Wilson, 197 Ga. App. 354, 355-356 (398 SE2d 385). In a professional malpractice case, the basis of legal liability is whether the defendant “exercise[d] a reasonable degree of skill and care, as determined by the degree of skill and care ordinarily employed by . . . respective professions under similar conditions and like surrounding[s].” Kneip v. Southern Engineering Co., 260 Ga. 409, 410 (395 SE2d 809). In such cases, without knowing what the “degree of skill and care ordinarily employed by . . . respective professions under similar conditions and like surrounding[s]” (id.), the jury can make no determination as to whether defendant deviated from the ordinary and usual standard.

Thus, although the law strictly requires an expert affidavit to be filed pursuant to § 9-11-9.1 in the appropriate case, this is only where the negligent doing of a thing must be “proved by reliance upon a general standard of care or by rules of procedure used by others competently performing the same service,” Razete v. Preferred Research, 197 Ga. App. 69, 70 (397 SE2d 489). “Wherever it is ‘necessary to establish the parameters of acceptable professional conduct’ (Hughes v. Malone, 146 Ga. App. 341, 345 (247 SE2d 107)) in order to prove negligence or breach for failure to perform in a workmanlike manner, the case must be deemed a professional malpractice case.” Razete, supra at 70.

“Hence, except in clear and palpable cases . . . expert testimony is necessary to establish the parameters of acceptable professional conduct. . . .” (Emphasis supplied.) Hughes, supra at 345. “[W]here . . . the plaintiff can prove negligence or breach without proof of a customary procedure and violation of it, the case is not a professional malpractice case and OCGA § 9-11-9.1 does not apply to require an ‘expert’s affidavit.’ ” Razete, supra at 70.

The suit of the plaintiff gave notice of the claim against him (OCGA § 9-11-8; Walton v. James & Dean, 177 Ga. App. 77, 78 (338 SE2d 516)), and the trial court held a hearing at which he evidently considered the evidence given by plaintiff’s present counselor and determined this was not a professional malpractice case. The acts complained of constitute one of those “clear and palpable” instances referred to in Hughes v. Malone, supra, as to which the jury does not have to be told by an expert what is acceptable professional conduct in the circumstances. This is not a case as “ ‘to which a layman can have no knowledge at all, and the court and jury must be dependent on expert evidence.’ ” Jordan, supra at 356. The question is whether the acts occurred. As to this, the matter is purely a jury question unless established otherwise as one for the court. The trial court did not err in finding that no expert affidavit was required, rendering moot any question whether plaintiff’s expert affidavit was timely or sufficient.

Decided April 15, 1992.

Womack & Rhyne, Ronald R. Womack, for appellant.

Frederick C. Smith, pro se.

Judgment affirmed.

Beasley, J., concurs. Andrews, J., concurs in judgment only.


author: Pope, Judge.

text:
    A92A0447.
    HOLLAND v. THE STATE.
    (418 SE2d 400)
   Pope, Judge.

Appellant/defendant Henry Frank Holland was charged with simple assault, pointing a gun at another, and reckless conduct. Defendant pled nolo contendere to the charge of reckless conduct, and the State dismissed the other two charges. At the time of his arrest, six firearms were seized from defendant’s home.

In his sole enumeration of error, defendant argues that the trial court erred in denying his post-trial motion for return of the firearms seized from his home. In support of his argument, defendant relies on OCGA § 17-5-2, which authorizes the return of items, other than contraband, if no charges are preferred against the person arrested.

OCGA § 17-5-51 states that any weapon used in the commission of a crime is contraband and is forfeited. The record reveals that the reckless conduct charge against defendant resulted from the use of only one of the firearms seized; therefore, only this one firearm can be labelled contraband under OCGA § 17-5-51 and thus forfeited. The other firearms seized from defendant’s home are not contraband because those guns were not used in the commission of a crime and are not stolen property. Therefore, the remaining guns must be returned to defendant or to some party designated by him to receive his property. Gunter v. State, 182 Ga. App. 548 (356 SE2d 276) (1987); LoGiudice v. State, 164 Ga. App. 709 (4) (297 SE2d 499) (1982).

Decided April 15, 1992.

Donald L. Hudson, Jr., for appellant.

Gerald N. Blaney, Jr., Solicitor, Jessica R. Towne, Assistant Solicitor, for appellee.

Judgment reversed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A0499.
    JOHNSON v. DEPARTMENT OF HUMAN RESOURCES.
    (418 SE2d 401)
   McMurray, Presiding Judge.

The Department of Human Resources, by and through the Office of the District Attorney of the Eastern Judicial Circuit, brought a child support recovery petition against defendant seeking reimbursement for public assistance in the amount of $660. See OCGA § 19-11-5. Answering the petition, defendant denied that he failed to support his two minor children. Following a hearing, the trial court determined that defendant was liable in the amount of $455.33 for unreimbursed aid to dependent children for the months of January and February 1991. Thereupon, defendant sought, and we granted, this discretionary appeal.

A review of the record demonstrates the following: Colleen Cooper sought and received pubic assistance in the amount of $660 for three minor children in January and February 1991. Defendant was the father of two of the children and he lived with Cooper and the children intermittently.

Defendant testified that he lived with Cooper and his children during January and February 1991 and supported them during that period of time. Cooper testified that she and defendant lived together during most of January and February 1991. Apparently recognizing that she was not entitled to receive public assistance during that time period, Cooper testified, without contradiction, that she is “paying the state back for those months. . . .” Held:

When the State pays public assistance to or on behalf of a child, the parent or parents responsible for the support of the child are liable to the State for an amount necessary to meet the total needs of the child and the person having custody of the child. OCGA § 19-11-5. This presumes, of course, that the child and the custodian of the child were entitled to receive public assistance. If it appears that the child and the custodian of the child were not entitled to receive public assistance, the custodian of the child is liable to the State for the amount of overpayment. OCGA § 49-4-15 (c).

Decided April 15, 1992.

George M. Hubbard III, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, Cynthia H. Frank, Staff Attorney, Spencer Lawton, Jr., District Attorney, M. Carol Branham, Assistant District Attorney, for appellee.

In the case sub judice, the State asserts defendant is liable for public assistance payments made on behalf of defendant’s children for January and February 1991. There is uncontradicted evidence, however, that the custodian of defendant’s children, Cooper, is repaying the State for the payments which she received in January and February 1991. We fail to see how defendant can be held liable for public assistance to his children when Cooper is repaying the State for the payments which she received on their behalf. After all, defendant and Cooper cannot both be liable for the public assistance. Either defendant is liable (for public assistance rightfully paid to his children) or Cooper is liable (for public assistance she was not entitled to receive). Inasmuch as the uncontradicted evidence demonstrates that Cooper is repaying the State for public assistance which she received for January and February 1991, defendant cannot be held liable for those public assistance payments.

The State argues that Cooper’s testimony is ambiguous and that one cannot discern whether she is repaying the State for public assistance payments received for January and February 1991 or for some other period of time. We disagree. Cooper clearly testified that she is repaying the State for the January and February 1991 payments. (“Q. . . . Mr. Johnson was living with you and the children in January and February, 1991? A. And I’m paying the State back for those months, yes, I am. Q. You’re paying the State back for those months? A. I am now paying AFDC back.”)

Judgment reversed.

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


text:
    A92A0567.
    HUNTER v. THE STATE.
    (418 SE2d 402)
   McMurray, Presiding Judge.

Following a jury trial, defendant was convicted of “possession of cocaine with intent to distribute” and of “obstruction of an officer.” He was sentenced to serve concurrent terms of life, pursuant to OCGA § 16-13-30 (d), and 12 months, and he appealed. Held:

1. Viewing the evidence in favor of the State, we find the following: Responding to an anonymous telephone call, three police officers went to an apartment complex in Thomasville. They observed defendant and two other individuals standing near a bank of mailboxes.

Two of the officers were on foot; the other was in a marked police vehicle. When the police closed in, defendant and his companions ran. One of the officers identified himself as a policeman and ordered the trio to “freeze.” Defendant’s companions ran on and got away. Defendant continued to run “a little bit” but two of the officers were able to “run him down” and apprehend him.

One of the officers was accompanied by a drug dog. Sniffing the vicinity, the dog pointed to a small package of “tinfoil” under the mailboxes. The tinfoil contained a razor blade with cocaine residue. The dog also pointed to an area of the mailboxes which contained mailbox 109.

Defendant’s “girl friend” lived in apartment 109. Defendant lived in the apartment with his girl friend. The officers had a warrant to search the apartment. Inside, the officers discovered defendant’s wallet. It contained $356. The officers also found $150 in defendant’s pants pocket. -

The officers asked defendant’s girl friend for the key to the mailbox. She replied that defendant had the key. Defendant denied that he had the key to the mailbox. The officers broke open the mailbox and discovered 18.5 grams of crack cocaine.

Defendant was advised of his constitutional rights and indicated that he understood his rights. He made a statement in which he admitted that he purchased the cocaine from another individual and placed it in the mailbox. At trial, defendant’s girl friend testified that defendant had the key to the mailbox.

The evidence was sufficient to enable any rational trier of fact to find defendant guilty of possession of cocaine with intent to distribute, Wright v. State, 189 Ga. App. 441, 444 (2) (375 SE2d 895), and obstruction of an officer, Tankersley v. State, 155 Ga. App. 917, 919 (4) (273 SE2d 862), beyond a reasonable doubt.

2. The State introduced evidence showing that on three previous occasions defendant was in possession of crack cocaine and was charged with intent to distribute. The evidence demonstrated that on two such occasions defendant pleaded guilty to the charges and that on the other occasion, he pleaded guilty to possession of cocaine.

Defendant contends the trial court erred in permitting the State to introduce the independent crimes because they were not similar to the charge on trial. In this connection, he points out that, in the case sub judice, the cocaine was discovered in a mailbox, and that, on the other occasions, the cocaine was discovered in other types of containers (e.g., a sunglass case). This contention is without merit.

The independent crimes were similar to the charge on trial — they all involved the possession of comparable amounts of crack cocaine. See Weldon v. State, 202 Ga. App. 51 (413 SE2d 229); Banks v. State, 201 Ga. App. 266, 267 (1) (410 SE2d 818). The other crimes are not dissimilar simply because the cocaine was not discovered in a mailbox.

The independent acts were properly introduced to establish identity and intent or bent of mind. Weldon v. State, 202 Ga. App. 51, supra. See Hargrove v. State, 202 Ga. App. 854 (415 SE2d 708). It cannot be said that the trial court’s finding of similarity was “clearly erroneous.” Banks v. State, 201 Ga. App. 266, 268, supra.

3. During the trial, one officer stated that the dispatcher received word that drugs were being sold at the apartment complex. Defendant interposed a hearsay objection and the assistant district attorney rephrased his question, emphasizing that the officer should not state what anybody said. Defendant let the matter rest. He did not seek a ruling or further action from the trial court.

When the second officer was asked why he went to the apartment complex, he simply replied that he went there in response to an anonymous telephone call. The officer did not relate the substance of the call and defendant’s second hearsay objection was overruled.

Asked why he went to the apartment complex, the third officer replied that he went there because of “reported drug activity.” At that point, defendant interposed a “hearsay” objection which was sustained.

Defendant contends the trial court erred in permitting the officers to state that they went to the apartment complex because they received a report that drugs were being sold there. In this connection, defendant contends the trial court should have sustained his “hearsay” objections. We find no error.

With regard to defendant’s first and third “hearsay” objections, the trial court sustained defendant’s position. Thus, we need only decide whether the trial court erred in overruling defendant’s “hearsay” objection to the second officer’s statement. In our view, the trial court did not err. The officer simply stated that he went to the apartment complex in response to an anonymous report. Inasmuch as the substance of the report was not related, there was no hearsay.

4. “Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal. Crawford v. State, 245 Ga. 89 (2) (263 SE2d 131) (1980); Gates v. State, 244 Ga. 587, 590-591 (261 SE2d 349) (1979) cert. den. 445 U. S. 938 (1980).” Berry v. State, 254 Ga. 101, 103 (1), 104 (326 SE2d 748). We have reviewed the transcript of the Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) hearing and the trial judge’s Jackson v. Denno findings pertaining to the admissibility of defendant’s statement and find no error. It cannot be said that defendant’s statement was involuntary simply because an officer told defendant that if the cocaine was not his it must have been his girl friend’s inasmuch as only defendant and his girl friend had access to the mailbox. Copeland v. State, 162 Ga. App. 398, 400 (291 SE2d 560) (officer’s statement to defendant that his wife could be charged with theft by receiving was a “truism” and did not render confession inadmissible).

Decided April 15, 1992.

Arthur J. Shelfer, Jr., for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A92A1090.
    BROWN v. DEPARTMENT OF HUMAN RESOURCES et al.
    (418 SE2d 404)
   Sognier, Chief Judge.

James Brown filed a pro se complaint requesting the Superior Court of Ware County declare he is not the biological father of Risetta Whitfield’s infant son, Jeremy, and praying the superior court enjoin the Department of Human Resources from requiring him to pay child support. The defendants answered, and the case proceeded to trial. Based on Brown’s failure to respond when the case was called, the trial court dismissed his complaint for want of prosecution. OCGA § 9-11-41 (b). Brown filed a direct appeal from that order.

Regardless how denominated, appellant’s complaint clearly constituted a petition to establish the paternity of a child, which appellant as the alleged father was entitled to institute. OCGA § 19-7-43 (a) (5). OCGA § 5-6-35 (a) (2) requires all “[a]ppeals from judgments or orders in divorce, alimony, child custody, and other domestic relations cases” be by application. Appeals arising out of paternity petitions are domestic relations cases which require compliance with the discretionary appeal procedure of OCGA § 5-6-35. See Jackson v. Roach, 199 Ga. App. 653 (405 SE2d 712) (1991). Since appellant failed to follow the mandatory appeal procedures, his appeal must be dismissed. Id.

Decided April 15, 1992.

James Brown, pro se.

Harry D. Dixon, Jr., District Attorney, Brenda L. Mullís, Assistant District Attorney, Michael J. Bowers, Attorney General, for appellees.

Appeal dismissed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A0132.
    LEE v. TRUST COMPANY BANK.
    (418 SE2d 407)
   Johnson, Judge.

Following the sale of a repossessed automobile, Trust Company Bank initiated a deficiency action against Dorothy Lee (Lee). Lee answered, and the parties filed cross-motions for summary judgment. Lee appeals from the grant of summary judgment in favor of Trust Company Bank and the denial of her motion.

1. Lee alleges that the trial court erred in denying her motion for summary judgment. She contends that Trust Company Bank is not entitled to recover any deficiency because her vehicle was not sold after it was repossessed. The undisputed facts of her case as established by the record simply do not support this contention. Therefore, this enumeration of error is wholly without merit.

2. The second enumeration of error alleges that the trial court erred in granting Trust Company Bank’s cross-motion for summary judgment. Lee has challenged the commercial reasonableness of the sale of the vehicle. “ ‘ “Where the commercial reasonableness of a sale is challenged by the debtor, the party holding the security interest has the burden of proving that the terms of the sale were commercially reasonable and that the resale price was the fair and reasonable value of the collateral. . . . (Cits.)” ’ ” (Emphasis omitted.) Branch v. Charlie Pike Chevrolet-Buick 198 Ga. App. 672, 673 (2) (402 SE2d 544) (1991). In this case, as in McMillan v. Bank South, 188 Ga. App. 355 (373 SE2d 61) (1988), Trust Company Bank has shown by submission of the affidavit of an officer of the bank that the sale of the vehicle was conducted by a recognized automobile auction company, and that the price received was within the range articulated in the Black Book, a weekly publication relied on by commercial automobile sellers and financial institutions as a guide to wholesale prices. The price quoted was specifically for the particular year and model of the car repossessed from Lee. Lee’s reliance on Department of Transp. v. Brand, 149 Ga. App. 547 (254 SE2d 873) (1979) is misplaced. In Department of Transp., evidence of the value of a house based solely on the application of a mechanical formula for determining replacement cost, as set forth in a building manual, was properly excluded. “ Tf a secured party disposes of the collateral in conformity with the usual commercial practices among dealers in that type of property, he has sold it in a commercially reasonable manner. OCGA § 11-9-507 (2). [Cit.]’ ” McMillan at 356. Lee failed to file a timely response to Trust Company Bank’s cross-motion for summary judgment. Furthermore, no affidavits were ever produced to contradict the affidavit filed by Trust Company Bank.

Decided April 16, 1992.

Wall & Noonan, W. Alford Wall, for appellant.

Stokes, Lazarus & Carmichael, John R. Hunt, for appellee.

The trial court, in its April 1, 1991, order and judgment granting Trust Company Bank’s cross-motion for summary judgment, recited that “[e]vidence was presented at a hearing that the price obtained for the vehicle at the auction was within the range of commercially acceptable prices for the particular vehicle at the time of the sale.” The order further states that Lee did not present any evidence to the contrary, nor is there any in the record before this Court. Since no transcript of the hearing is available for review, we must affirm the trial court’s evaluation of the evidence. See McClaskey v. Jiffy Lube, 197 Ga. App. 537 (398 SE2d 825) (1990). Trust Company Bank has made a prima facie showing that the sale was reasonable and Lee has failed to assert any specific facts showing a genuine issue for trial. Therefore, the grant of the cross-motion for summary judgment was proper. Slaughter v. Ford &c. Co., 164 Ga. App. 428 (296 SE2d 428) (1982).

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0666.
    DAUST v. DAUST.
    (418 SE2d 409)
   Johnson, Judge.

This court granted Sylvia Daust’s application for interlocutory appeal in order to review the trial court’s order denying her motion to dismiss a child custody case for lack of jurisdiction and improper venue. The case began as a contempt proceeding arising out of a divorce awarded in DeKalb County in 1987. Two contempt proceedings were filed, but only the second is relevant to this appeal. This second contempt petition was filed on August 24, 1989. The response from Timothy Daust included a request for a modification of visitation and for other relief. The trial court ordered a temporary change in visitation on June 14, 1990. Subsequently, the appellee filed a “motion to change custody.” It is not disputed that this motion was a part of the contempt case and not a separate action. The trial court subsequently entered two consent orders which changed the custody arrangements of the minor children of the parties. The first of these was entered on December 7, 1990, and the second on December 17, 1990. A guardian ad litem was appointed to represent the interests of the children. On January 23, 1991, the trial court entered an emergency order which also dealt with matters related to custody of the children. Some six months later, at a hearing initiated by the court, appellant made an oral motion to dismiss the appellee’s motion for a change of custody, alleging that DeKalb County was not the proper venue for that action and that the court lacked jurisdiction. The trial court denied the motion to dismiss in an order entered June 19, 1991.

The appellant’s sole enumeration of error is that the trial court erred by denying her motion to dismiss. We disagree. In its order denying the motion to dismiss, the trial court acknowledged the general rule that an action for contempt cannot be the vehicle used by a respondent to modify custody. See Georgia Child Custody Intrastate Jurisdiction Act of 1978, codified in OCGA § 19-9-20 et seq. The trial court further acknowledged the principle that actions for custody are to be brought in the county of residence of the legal custodian. Appellant was the legal custodian of the minor children and a resident of DeKalb County at the time she filed the contempt action. The only evidence in the record regarding her residence at subsequent stages of the proceedings is the recital of the trial court in its order. There it is indicated that she moved first to Fulton County then to Cobb County at some point before the court entered its first order regarding custody on December 7, 1990. Since Sylvia Daust was a DeKalb County resident at the time the original action was filed, the preferred procedural approach in this case would have been for the respondent, Timothy Daust, to have filed a separate action in DeKalb County seeking a change in custody and then to move for consolidation of the two cases. By taking these steps, Timothy Daust would have eliminated any possible jurisdictional challenge. Nonetheless, it is clear from the facts of this case that Sylvia Daust’s conduct in entering into consent orders regarding custody has effectively waived any defense which she may have raised. OCGA § 9-12-23 expressly provides that “[t]he consent of the parties to a judgment has the effect of removing any issuable defenses. . . .” There being no showing of fraud or mistake, she cannot now complain. Venture Design v. Original Ap palachian Artworks, 197 Ga. App. 432, 435 (398 SE2d 781) (1990); LeTwigge, Ltd. v. Wammock & Co., 187 Ga. App. 446, 448 (370 SE2d 631) (1988). This court is mindful of the provisions of OCGA § 19-9-23 and this ruling is not intended to be an attempt to abrogate the general rule established in Hammontree v. Hammontree, 186 Ga. App. 819 (368 SE2d 576) (1988) prohibiting counterclaims for modifications of custody actions in actions for contempt. We find only that in this particular case there was a valid waiver of jurisdiction.

Decided April 16, 1992.

N. Lee Presson, Mary P. Schildmeyer, for appellant.

Susan B. Ellis, Rich, Bass, Kidd & Witcher, R. Hopkins Kidd, for appellee.

The defenses of lack of personal jurisdiction and improper venue clearly may be waived, even in child custody cases. Lanning v. Lanning, 245 Ga. 19 (262 SE2d 788) (1980); Hopkins v. Hopkins, 237 Ga. 845, 847 (229 SE2d 751) (1976). See also Pruitt v. Hooks, 163 Ga. App. 892 (296 SE2d 193) (1982). Having fully participated in the process leading up to the trial court’s orders regarding custody, even consenting to the first two such orders, the appellant has waived her defenses of lack of jurisdiction and improper venue. The trial court did not err in denying her motion to dismiss.

Lest our holding in this case be construed as somehow conflicting with or undermining the Georgia Child Custody Intrastate Jurisdiction Act of 1978, as codified in OCGA § 19-9-20 et seq., we emphasize that our holding is limited to cases having facts substantially the same as in this case. The matters which could have properly been considered by the trial court under that act were not even raised by the appellant until more than six months after she had consented in two orders modifying custody and after the trial court had found that emergency action was required in order to protect the best interests of the minor children of the parties.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: Carley, Presiding Judge.

text:
    A91A0621.
    THE STATE v. BECK.
    (418 SE2d 411)
   Carley, Presiding Judge.

In State v. Beck, 200 Ga. App. 557 (409 SE2d 57) (1991), we reversed the trial court’s grant of appellee’s plea of double jeopardy. On certiorari, however, the Supreme Court reversed. Beck v. State, 261 Ga. 826 (412 SE2d 530) (1992). Accordingly, our original judgment is vacated and the judgment of the Supreme Court is hereby made the judgment of this court. The judgment of the trial court is affirmed.

Decided April 17, 1992

J. David McDade, District Attorney, Lois W. Gerstenberger, Assistant District Attorney, for appellant.

Alden W. Snead, J. M. Raffauf, for appellee.

Judgment affirmed.

Beasley and Johnson, JJ., concur.


text:
    A92A0759.
    WOMACK INDUSTRIES, INC. v. B & A EQUIPMENT COMPANY.
    (418 SE2d 411)
   Johnson, Judge.

This is the second appearance of this case in this court. See Womack Indus. v. B & A Equip. Co., 199 Ga. App. 660 (405 SE2d 880) (1991), reh. den. May 7, 1991, cert. den. September 6, 1991. In our prior decision we reversed the trial court’s denial of a directed verdict in favor of Womack Industries regarding the validity of a lien filed by B & A Equipment Company, finding that the evidence demanded a finding that the claim of lien was not filed within three months of the completion of the work and was, therefore, not valid. The previous decision did not disturb those portions of the judgment regarding contract damages which were not derivative from the lien, nor was that award challenged in the earlier appeal.

Womack Industries now appeals the judgment entered on remittitur, asserting that it violates OCGA § 5-6-10, in that the judgment did not carry into “full effect in good faith” the holding of this court. Womack Industries cannot now, by challenging the judgment entered on remittitur, enlarge the scope of the previous appeal. “[I]t is well-settled law . . . that all matters which were put in issue, or which . . . might have been put in issue, will not be considered in a subsequent writ of error.” Lankford v. Mithollin, 201 Ga. 594, 602 (40 SE2d 376) (1946).

The remittitur cannot be read in a vacuum. It must be read in conjunction with, and give effect to, the totality of the opinion rendered by this court. The judgment, as it now stands, fully incorporates the intent of the jury with respect to damages and this court as to law and does not violate the provisions of OCGA § 5-6-10.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.

Decided April 20, 1992.

Thompson & McClure, Douglas R. Thompson, John L. Adair, for appellant.

Stewart, Melvin & House, William H. Blalock, Jr., for appellee.


text:
    A92A0816.
    GRAY v. THE STATE.
    (418 SE2d 412)
   McMurray, Presiding Judge.

Via indictment, defendant was charged with two counts of selling cocaine. He was convicted upon one of the two counts and sentenced to serve 30 years in the penitentiary. This appeal follows the denial of defendant’s motion for a new trial. Held:

1. The State sought to prove that on two separate occasions, defendant sold pieces of crack cocaine to an undercover agent for $20. Defendant asserted that he did not make the sales and that he had been misidentified by the undercover agent. The sales were witnessed by a confidential informant and defendant moved to disclose his identity. The trial court denied defendant’s motion after the informant testified under oath at an in-camera hearing conducted prior to trial. Defendant assigns error upon the denial of the motion to disclose the identity of the confidential informant.

We have examined the transcript of the in-camera hearing and the transcript of the trial and find no error because neither the disclosure of the informant’s identity nor the contents of his testimony would benefit the defense or serve the discovery of truth. See generally Roviaro v. United States, 353 U. S. 53, 60, 61 (77 SC 623, 1 LE2d 639); Thornton v. State, 238 Ga. 160, 162 (2), 165 (231 SE2d 729); Moore v. State, 187 Ga. App. 387 (370 SE2d 511). As it is said: “The disclosure of an informer-witness is not automatically mandated just because he is the only person who observed the alleged transaction between defendant and the officer. If his or her testimony would not exculpate defendant, or provide evidence material to the defense, then his or her identity need not be ordered revealed.” Simmons v. State, 198 Ga. App. 121, 123 (400 SE2d 679) (concurring opinion by Judge Beasley). Defendant’s first enumeration of error is without merit.

2. In his second and third enumerations of error, defendant complains that neither he nor his attorney were permitted to attend the in-camera hearing and cross-examine the confidential informant. Defendant’s complaint is controlled adversely by Ponder v. State, 197 Ga. App. 21 (397 SE2d 596), in which this Court held that neither defendant nor his attorney are entitled to be present at the in-camera examination of a confidential informant.

3. Defendant contends the trial court erred in permitting the State to introduce evidence of two previous drug offenses. In one offense, defendant was convicted of selling a small quantity of marijuana to an individual in 1984. In the other offense, defendant was convicted of possession of cocaine in 1989. In the possession case, defendant was posted as a lookout in connection with the sale of cocaine. We find no error.

“The only separate crimes which are admissible are those that are either similar or logically connected to the crime for which defendant is being tried. Crimes which are not similar or which are not logically connected to the crime for which defendant is being tried should be excluded from evidence. Proof of crimes which are similar or are closely connected to the crime charged does tend to establish the crime charged.

“Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct. . . .

“We have here involved a case of the ‘typical swearing match’ as described in Hart v. State, 149 Ga. App. 785 (256 SE2d 127) (1979). The police officer testifies the defendant sold him drugs; the defendant says ‘It wasn’t me.’ The jury looking at the police officer, would see an undercover agent ‘in the business’ of buying drugs from many people. They might consider that the officer making one drug buy from one individual could be mistaken about who that individual was. However, when [evidence is introduced that defendant sold drugs on other occasions], the jury could consider that the likelihood that the officer is mistaken about that person’s identity is greatly diminished.” State v. Johnson, 246 Ga. 654 (1), 655 (272 SE2d 321) (1980). It cannot be said that the trial court erred in allowing the State to introduce evidence of the previous drug crimes committed by defendant. Wilson v. State, 194 Ga. App. 261, 262 (2) (390 SE2d 609); Roney v. State, 192 Ga. App. 760, 762 (2) (386 SE2d 412).

4. Defendant contends the trial court erred in charging the jury that evidence of similar crimes could be considered to “show defendant’s state of mind, and for that purpose alone.” We fail to see how the trial court’s charge could have harmed defendant. Evidence of similar crimes is admissible to show identity, motive, plan, scheme, bent of mind, or course of conduct. Wilson v. State, 194 Ga. App. 261, 262 (2), supra. By placing a limit on the use of similar crime evidence, the trial court ruled favorably, not adversely, to defendant. The fifth enumeration of error is without merit.

5. At the outset of the preliminary hearing, the magistrate asked defendant if he wanted a “private or public lawyer in this case?” Defendant responded negatively and entered a plea of “not guilty.” Thereupon, the undercover agent took the stand and described the events leading to defendant’s arrest. Representing himself, defendant cross-examined the agent, asking questions which could lead one to conclude that he was implicating himself in the crime.

At trial, defense counsel tried to show that another person was present when the undercover agent purchased the cocaine. In this connection, she cross-examined the agent about his testimony at the preliminary hearing. Over defendant’s objection, the assistant district attorney was then permitted to read defendant’s questions and the agent’s answers from the preliminary hearing transcript and to elicit an affirmative response as to whether the transcript accurately reflected “the testimony that was given and the questions asked by Mr. Gray at that hearing?”

Subsequently, after the jury began its deliberations, it sent a note to the trial court asking whether “the statement made by Mr. Gray acting as his own attorney can be used as evidence. . . .” Asking the parties to state their respective positions on the matter, defense counsel advised the court that any statement made by defendant during his pro se representation was inadmissible because defendant was not advised of his constitutional rights. The assistant district attorney disagreed, asserting that defendant’s decision to represent himself “was a voluntary act” and that, therefore, any statement made by defendant during the course of the preliminary hearing was admissible.

The trial court determined that defendant’s statement was admissible as an admission against interest or a prior inconsistent statement. Accordingly, the court instructed the jury that it could consider the defendant’s statement as evidence and give it whatever weight they deemed appropriate. Defendant assigns error upon that instruction.

In our view, the trial court erred in instructing the jury that it could consider defendant’s statement at the preliminary hearing as evidence. After all, any statement which defendant made during the course of his self-representation stemmed from his decision to represent himself. And it does not appear that defendant chose to represent himself at the preliminary hearing voluntarily.

In Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975), the United States Supreme Court held that a defendant in a criminal case has a right to represent himself “when he voluntarily and intelligently elects to do so.” Id. at 806. In so holding, the high court stated: “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ [Cit.]” Id. at 835..

“In determining whether or not an accused has. adequately waived his right tó counsel and elected to exercise his constitutional right to represent himself, the courts will apply the standard set forth in Johnson v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE 1461) (1937). Faretta v. California, supra. Taylor v. Ricketts, 239 Ga. 501 (238 SE2d 52) (1977), applied the Johnson v. Zerbst standard that ‘A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ Johnson v. Zerbst, supra at 464. It is also clear from Johnson v. Zerbst that the trial judge has the responsibility of determining whether the accused has intelligently waived his right to counsel. ‘The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.’ Johnson, at 465.” Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49).

In the case sub judice, the record does not reflect a knowing and intelligent waiver of defendant’s right to counsel at the preliminary hearing. Defendant was simply asked at the outset of the hearing if he wanted an attorney; he responded that he did not. Compare Singleton v. State, 176 Ga. App. 733 (337 SE2d 350), in which that defendant was advised on at least three occasions that he had a right to be represented by a lawyer and he waived his right to counsel on the record. Furthermore, in the case sub judice, defendant was not advised of the dangers of proceeding pro se. Compare Shavers v. State, 179 Ga. App. 45, 46 (1) (345 SE2d 134), where the trial court advised the defendant that it was dangerous to proceed without counsel, emphasized the importance óf knowing the rules of evidence, and stressed that if defendant chose to represent himself there would be a higher probability of conviction.

Based on the record before us, it cannot be said that defendant knew what he was doing when he decided to proceed pro se. It follows that the trial court erred in charging the jury that the statement which defendant made at his preliminary hearing could be considered as evidence. Compare Callahan v. State, 175 Ga. App. 303 (333 SE2d 179), in which this Court deemed a statement that defendant made at his preliminary hearing to be admissible because defendant was familiar with the criminal justice system, possessed an 11th grade education, and was informed that while he could represent himself it was not an advisable thing to do.

Decided April 21, 1992.

Nancy M. Markle, for appellant.

Lewis R. Slaton, District Attorney, Penny A. Penn, Charles W. Smegal, Assistant District Attorneys, for appellee.

Judgment reversed.

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


author: Pope, Judge. Birdsong, Presiding Judge,

text:
    A91A1886.
    SANDERS v. THE STATE.
    (419 SE2d 24)
   Pope, Judge.

Appellant/defendant appeals his conviction for armed robbery and aggravated assault. The jury was authorized to find defendant approached Wilma Wynn outside her apartment and ordered Wynn to give him her keys to her car and her purse. Defendant was accompanied by two black males. Defendant had a gun wrapped in a coat pointed at her during the robbery. Wynn never saw the gun but believed it was a sawed-off shotgun.

Shortly after robbing Wynn and fleeing in her automobile, defendant, while driving Wynn’s car, struck a policeman who was reporting for duty. Although defendant attempted to leave the scene of the accident without stopping, when the officer flashed his lights several times at the car defendant was driving, he stopped. When the officer attempted to verify defendant’s insurance and driver’s license and the license of an occupant of the vehicle whom defendant claimed owned the vehicle, defendant pushed the policeman down and fled in the vehicle. The officer pursued the vehicle, which left the road at a red light area. The two occupants fled the vehicle at that time. The officer exited his vehicle and noticed defendant pointing a rifle at him. The officer took cover behind his car. Defendant attempted to run around his vehicle, but fell and dropped his weapon. The officer was then able to apprehend defendant.

1. Defendant argues that the trial court erred by prohibiting defense counsel from questioning the jurors about possible bias they may have against defense counsel. Defense counsel posed the following question to the jury during voir dire: “Ladies and Gentlemen, as you learned or you had indicated to you I’m a criminal defense attorney, and I’m sure that some of you have some preconceptions in your mind of the role that a defense lawyer plays. I’ll be interested in hearing those. Is there anyone here, for whatever reason, thinks that I would trick you or try to trick you just because I’m a criminal defense lawyer?” (Emphasis supplied.)

Defendant argues that the trial court’s refusal to allow that question to be posed on voir dire denied his right pursuant to OCGA § 15-12-133 to question the jurors about “any inclination, leaning, or bias which the juror might have respecting the subject matter of the action or the counsel or parties thereto . . . .” (Emphasis supplied.) This court has repeatedly held that a criminal defendant has an absolute right to question potential jurors about any matters specified in OCGA § 15-12-133. Mitchell v. State, 176 Ga. App. 32 (3) (335 SE2d 150) (1985); Craig v. State, 165 Ga. App. 156 (299 SE2d 745) (1983). When a criminal defendant has been deprived of this right, the burden then falls to the State to show that the error was harmless. Henderson v. State, 251 Ga. 398, 403 (306 SE2d 645) (1983).

Although the question posed by defense counsel was within the purview of OCGA § 15-12-133, in light of the overwhelming evidence of defendant’s guilt in this case, we hold that the trial court’s refusal to allow that question to be addressed to potential jurors was harmless error. As the facts set forth above indicate, the defendant was apprehended shortly after he robbed Ms. Wynn. At the time he was apprehended he was driving her car and carrying a rifle. Both Ms. Wynn and the police officer who apprehended defendant identified him at trial. In fact, as will be discussed below, the only issue raised as to sufficiency of the evidence by defendant is whether it can be properly inferred that defendant had a weapon during the robbery and assault. In light of the overwhelming evidence of guilt in this case, the State met its burden of showing it is “highly probable” that the limitation on voir dire was harmless error. See Mathis v. State, 176 Ga. App. 362, 363 (336 SE2d 299) (1985); cf. Henderson, supra (prohibiting question about whether a juror’s family had ever worked for law enforcement was not harmless error when critical witnesses to prove the State’s case against defendant were law enforcement personnel.)

2. Defendant argues that the evidence was insufficient to support defendant’s conviction for armed robbery because the use of an offensive weapon during the crime was not established beyond a reasonable doubt. Wynn testified that the defendant had a gun wrapped in a coat which he pointed at her while he took her keys and pocketbook. Although Wynn testified that she did not actually see the gun, the law in this state is well-settled that the presence of a weapon during the commission of a robbery may be established by evidence from which the presence of a weapon may be inferred, regardless of whether the weapon was actually seen. Tate v. State, 191 Ga. App. 727 (2) (382 SE2d 688) (1989); Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (1987). Wynn’s testimony was sufficient evidence to support the defendant’s conviction for armed robbery.

3. Defendant contends that the trial court erred in charging the jury on flight. Shortly after this case was tried the Georgia Supreme Court issued its decision in Renner v. State, 260 Ga. 515 (397 SE2d 683) (1990), in which it held that in all cases tried after January 10, 1991, the State may offer evidence of and argue flight, but it shall be error for the trial court to charge the jury on flight. Id. at (3). While the charge on flight at defendant’s original trial is not error, pursuant to Renner, the charge would be error on retrial.

4. Defendant asserts that the trial court’s charge on the presumption of witnesses’ truthfulness constituted unconstitutional burden-shifting. “Although we have held that such presumption-of-truthfulness charges can be misleading, and are of little positive value, and have recommended that their use be discontinued, we have nevertheless noted that they have (been) held not to be, as [defendant contends unconstitutional] burden-shifting.” (Citations and punctuation omitted.) Ranson v. State, 198 Ga. App. 659 (6) (402 SE2d 740) (1991).

5. Defendant next contends that the trial court erred in denying his motion to suppress Wynn’s photographic lineup identification of defendant. Defendant complains that his photograph had a different texture than the others and the other men did not have full facial hair. All of the men in the photographs were black men, approximately the same age and description as defendant, with some facial hair. Taking into consideration the totality of the circumstances, we hold that any suggestiveness in the pretrial identification procedures used by the police did not rise to a substantial likelihood of mistaken identification. Jones v. State, 251 Ga. 361 (1) (306 SE2d 265) (1983).

6. Defendant argues that the trial court should have granted his motion for mistrial because the State’s witness impermissibly placed his character in issue. He contends the investigating detective testified that he picked over mug shots of the defendant when preparing the photographic lineup, revealing to the jury that the defendant had several previous arrests. The testimony about which defendant complains follows: “Mr. Sanders’ photograph in the City of Atlanta where he was arrested was apparently mishandled and was not developed, so when he went to the Fulton County Jail, I obtained a photograph from the Fulton County I. D. section. I picked over mug shot photographs from I. D. section until I got... a cross section of six individuals that apparently their appearances closely resemble each other.” The transcript clearly reveals the mug shots that the witness looked through were of men arrested in Fulton County in order to obtain photographs for a lineup. This enumeration of error is without merit.

7. Defendant argues that he was entitled to a mistrial because during his closing argument the district attorney stated “[i]f the defense wanted any witness here that wasn’t called by the state, they would be here.” It is well settled in Georgia that prosecutors may make such comments. Wilson v. Zant, 249 Ga. 373 (4) (290 SE2d 442), cert. denied, 459 U. S. 1092 (103 SC 580, 74 LE2d 940) (1982); Shirley v. State, 245 Ga. 616 (1) (266 SE2d 218), cert. denied, Shirley v. Georgia, 449 U. S. 879 (101 SC 227, 66 LE2d 102) (1980); Contreras v. State, 242 Ga. 369 (3) (249 SE2d 56) (1978).

Judgment affirmed.

Cooper, J., concurs. Birdsong, P. J., concurs specially.

Birdsong, Presiding Judge,

concurring specially.

1. I concur with the majority opinion, except as to Division 1 as to which I concur specially.

2. Appellant asserts the trial court erred in prohibiting defense counsel from questioning the jurors about possible bias against defense attorneys.

During voir dire appellant’s counsel expressed his understanding to the prospective jurors that none of the jurors knew “any of’ the counsel involved in the trial. Further, the jurors did not express any reason, when asked, why they could not be fair and impartial jurors in this case after hearing all the testimony. The trial transcript subsequently reflects the following pertinent colloquy: “[DEFENSE COUNSEL]: . . . I’m a criminal defense attorney, and I’m sure that some of you have some preconceptions in your mind of the role that a defense lawyer plays. I’ll be interested in hearing those. Is there anyone here, for whatever reason, thinks that I would trick you or try to trick you just because I’m a criminal defense lawyer. [PROSECUTOR]: I object to this question. It’s not relevant as to whether or not the jurors have any bias sitting as a juror on this case. [DEFENSE COUNSEL]: I submit it has direct relevance to bias and prejudice if they would be disinclined to believe a defense lawyer or simply by virtue of the fact it would show that they are directly biased or prejudiced against the defense. [TRIAL COURT]: I don’t expect you to testify in this case, though. [DEFENSE COUNSEL]: No sir, your honor. I think I’m entitled to go into whether, because of the fact that this is a criminal case and I’m a defense attorney, that because of the role that we play in society that some people may not give us a fair shake. So I would ask to be permitted to question on that. [TRIAL COURT]: I sustain the objection. Ladies and gentlemen, the defense counsel will not be testifying usually in a case. You won’t have an occasion to believe or disbelieve him about this matter. You should be controlled by the evidence in this case, if there’s any presented to you.” (Emphasis supplied.)

In criminal cases, the right to examine each prospective juror in order to secure an impartial jury is set out in OCGA § 15-12-133. This statute expressly establishes, inter alia, a right of counsel to make certain inquiries of the individual jurors regarding any matter or thing which would illustrate any interest of the juror in the case, including “any inclination, leaning, or bias which the juror might have respecting . . . the counsel or parties thereto . . . .” OCGA § 15-12-133. As a general rule, “[ajlthough control of voir dire examination is normally within the discretion of the trial court, it has been held that the defendant in a criminal case has an absolute right to have his prospective jurors questioned as to those matters specified in OCGA § 15-12-133. [Cit.] ‘Hence, it (is) reversible error for the trial court to refuse permission to appellant’s counsel to ask such questions of each juror, for such ruling denie(s) appellant a substantial right granted him by statute. (Cits.)’ [Cit.] It has also been held that OCGA § 15-12-133 encompasses questions regarding possible racial prejudice and bias, even when such questioning would not be constitutionally required. [Cit.]” Mitchell v. State, 176 Ga. App. 32, 34 (3) (335 SE2d 150).

At the onset it is noted that the question in issue is a preparatory question — one which is indirectly probative of counsel bias. As such, this question is within that broad class of questions falling within the permissive parameters of OCGA § 15-12-133. Compare Lawton v. State, 191 Ga. App. 116 (381 SE2d 106) (majority, specially concurring, and dissenting opinions). “Accordingly . . . appellant had a statutory right to ask the question disallowed in the instant case, as it related to the subject of ‘bias which the juror(s) might have respecting’ him. OCGA § 15-12-133.” Mitchell, supra at 34 (3). However, this does not end our judicial inquiry. Contrary to the scope of the enumerated error (compare Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522) and Rigenstrup v. State, 197 Ga. App. 176, 179 (2) (398 SE2d 25)) that the trial court prohibited “defense counsel from questioning the jurors about possible bias against defense attorneys,” the record reflects that the trial court merely sustained the State’s objection to the question actually posed by defense counsel. Thus, the ruling of the trial court did not prevent appellant’s defense counsel from making further inquiry of the jury individually as to whether they had any bias towards him, or prevent counsel from rewording and repositing his original question to the jury either before or after asking other questions regarding the jury’s possible bias toward the defense attorney. Moreover, the record shows that after the ruling was made and the curative-type instruction given, defense counsel abandoned any further reasonable attempts to inquire as to the potential bias of individual jurors toward criminal defense lawyers in general or toward himself in particular. The record in its current posture establishes that appellant was not, as specifically enumerated, prohibited from any inquiry into individual juror’s bias toward defense counsel, but was at most, precluded from asking one particularly worded question; a question which, as framed, was only indirectly probative of the bias question, and which even if answered in the affirmative by all jurors would not per se establish a disqualifying bias. Thus, if counsel reasonably expected to establish bias on the part of an individual juror he should have asked follow-up, probative questions, at least until he was definitively prohibited from conducting an effective inquiry into the area by the trial court. “The failure to timely exercise due diligence in the voir dire waived the right to assert this allegation of error.” Thurmond v. Bd. of Commrs. of Hall County, 174 Ga. App. 570, 571 (2) (330 SE2d 787). Moreover, the conduct and trial tactics of appellant’s counsel in failing to pursue the bias inquiry following the court’s sustaining of the State’s objection and its giving of a curative-type instruction, aided in the restriction of appellant’s voir dire inquiry as to counsel bias (see generally Wilburn v. State, 199 Ga. App. 667, 669 (2) (405 SE2d 889)), and in this particular instance is also tantamount to acquiescence by conduct (cf. Tatum v. State, 259 Ga. 284, 287 (3) (380 SE2d 253)).

Decided April 3, 1992

Reconsideration denied April 22, 1992.

Maria T. Gonzalez, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Henry M. Newkirk, Carl P. Greenberg, Assistant District Attorneys, for appellee.

On Motion for Reconsideration.

On motion for reconsideration, defendant argues that a panel of this court does not have authority to overrule the earlier opinion issued in this case by the whole court. The original opinion in this case has been vacated and withdrawn with the permission of the whole court. The original dissent has been withdrawn making it unnecessary for the whole court to consider the motions for reconsideration filed by the parties. Defendant’s remaining contentions on motion for reconsideration are without merit.

Motion for reconsideration denied.


author: McMurray, Presiding Judge. Sognier, Chief Judge,

text:
    A92A0464.
    WILLIAMS v. THE STATE.
    (418 SE2d 387)
   McMurray, Presiding Judge.

Defendant Williams appeals his conviction of the offense of accessing of computers. The sole issue raised by defendant’s enumerations of error is whether the evidence was sufficient to authorize his conviction. Held:

The evidence construed in the light most favorable to the verdict shows that defendant sought and obtained employment with Southeastern Color Lithographers in August of 1987. This business utilized a central computer processor which served three terminals, one of which, the console terminal, was located in the office with the processor and the remaining two in adjacent offices. Two weeks after his employment, defendant was promoted to the position of cost estimator which entailed use of the computer. Prior to defendant’s promotion to cost estimator the computer system had been trouble free. After defendant gained access to the computer, there were problems with files and data being erased from the computer on virtually a daily basis for approximately six months. These erasures resulted in the loss of many hours of employees’ time to reconstruct and replace that which was erased. Business opportunities were lost due to the diversion of resources, and funds were expended to investigate and seek remedies to the unexplained problem. Finally, after extensive efforts to find any flaw in the computer hardware or operating system, attention turned to the possibility that someone was deliberately causing the computer problems. A computer analyst then designed an electronic trap, a modification of the computer’s software that would cause an alert to appear on the screen of the console terminal whenever the computer was given certain instructions, such as to erase files or data. The computer was also programmed so that whenever the trap was sprung, the computer would create a record of the event, including the command that was executed and from which terminal it was executed. The trap was created on Friday, February 12,1988, and installed on the computer.

On Monday morning, February 15, 1988, the trap was sprung. Shortly after 9:00 a.m. an alert repeatedly flashed on the console terminal that someone was attempting to run the erase program. It was immediately ascertained that defendant was at the computer terminal in his office and typing on his keyboard. The computer generated record of the event showed that a command to erase various files from the computer had been given from the terminal operated by defendant. The electronic trap did not prevent the computer from executing the destructive commands and actually erasing material from the computer.

The computer analyst opined that the computer problems had been caused by someone running destructive commands to the computer from the terminal in defendant’s office. After defendant was fired on March 1, 1988, there were no further problems with the computer.

Defendant denied intentionally erasing any files from the computer, other than his own, and presented evidence, including that of an expert, that the erasures could have been caused by hardware or software malfunctions. “ ‘To warrant' a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.’ OCGA § 24-4-6; ‘The term “hypothesis” as used in (OCGA § 24-4-6) refers to such reasonable inferences as are ordinarily drawn by ordinary (persons) in the light of their experience in everyday life; the Code section does not mean that the act might by bare possibility have been done by somebody else, but that the State should show to a moral certainty that it was the defendant’s act.’ (Citations and punctuation omitted.) Atchison v. State, 181 Ga. App. 351, 352 (352 SE2d 201) (1986).” Farrie v. State, 201 Ga. App. 549 (411 SE2d 561). Defendant contends that the State has failed to carry its burden of excluding every hypothesis save his guilt. Whether this burden has been met is for the jury, and its determination will not be disturbed unless the verdict is insupportable as a matter of law under the “reasonable doubt” test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Carswell v. State, 201 Ga. App. 746, 747 (412 SE2d 572). The evidence in the case sub judice was sufficient to enable a rational trier of fact to deduce that the evidence “presents only a bare possibility of innocence, not a reasonable hypothesis. Accordingly, we find the evidence sufficient under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Nelson v. State, 197 Ga. App. 898-899 (1) (399 SE2d 748) (1990).” Farrie v. State, 201 Ga. App. 549, 550, supra.

Judgment affirmed.

Cooper, J., concurs. Sognier, C. J., concurs specially.

Sognier, Chief Judge,

concurring specially.

While I concur fully in the judgment, I write specially to note that although appellant adduced expert testimony that the computer problems experienced by the company employing appellant could have been caused by software or hardware malfunctions in the company’s computer, the evidence presented by the State clearly rebutted this hypothesis. In particular, there was evidence that when the problems persisted despite thorough diagnostic tests performed on the hardware and the software and the reloading of the software programs, the company arranged to have its computer hardware and software temporarily replaced. The evidence established that once off the premises, the company’s computer functioned flawlessly while the replacement computer then experienced the crippling problems. Furthermore, appellant’s expert could not rule out the possibility of a human agency behind the computer problems, and in this regard the State presented evidence that although appellant was authorized to use only the two computer programs he needed to perform his job, documentary evidence existed in appellant’s handwriting, which was introduced at trial, that showed appellant had gained the restricted knowledge essential to access other employees’ programs and knew the computer commands that would produce the computer problems the company had been experiencing. Given this evidence, I find that in weighing appellant’s expert’s testimony that the company’s computer problems were mere system malfunctions, the jury was authorized to find that hypothesis unreasonable and to reject it. See generally Schmalz v. State, 177 Ga. App. 634, 636 (341 SE2d 11) (1986).

Decided April 10, 1992

Reconsideration denied April 22, 1992

Kardos, Warnes & McElwee, Stephen H. McElwee, for appellant.

Harry N. Gordon, District Attorney, Steve C. Jones, Assistant District Attorney, for appellee.


text:
    A92A1208.
    STARGELL v. THE STATE.
    (418 SE2d 372)
   Sognier, Chief Judge.

In 1970, judgment was entered in the Superior Court of Fulton County on Elijah Stargell’s plea of guilty to nine counts of rape. In January 1992, while incarcerated at the Dodge Correctional Institution in Chester, Dodge County, Georgia, he filed in the Superior Court of Fulton County a pro se motion he denominated a “motion to withdraw guilty plea on federal constitutional grounds.” The Fulton County Superior Court denied his motion on the basis that it had no jurisdiction over the case. He appeals that decision to this court.

We affirm. The superior court’s jurisdiction to entertain a motion to withdraw the guilty plea ended after the term of court in which the judgment of conviction was rendered. Harden v. State, 177 Ga. App. 531 (339 SE2d 793) (1986). The motion cannot be considered a motion in arrest of judgment since it was not filed within the term the judgment was rendered, OCGA § 17-9-61 (b), nor can it be construed as a petition for habeas corpus because it was filed in the county in which he was convicted rather than against the warden in the county in which he is incarcerated. OCGA § 9-14-43; Lacey v. State, 253 Ga. 711 (324 SE2d 471) (1985).

Decided April 7, 1992

Reconsideration denied April 22, 1992.

Elijah Stargell, pro se.

Lewis R. Slaton, District Attorney, Michael J. Bowers, Attorney General, for appellee.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A0001.
    In the Interest of J. L. M. et al., children.
    (418 SE2d 415)
   Sognier, Chief Judge.

. The father of J. L. M. and M. A. M. appeals from the decision of the Juvenile Court of Clayton County terminating his parental rights as to J. L. M., his seven-year-old son, and M. A. M., his six-year-old daughter.

1. In two enumerations appellant contends the juvenile court erred by terminating his parental rights because the evidence did not support the court’s finding that the children were deprived. Appellant is incarcerated in the state penal system where he is serving two life sentences imposed after he pleaded guilty to the murder of his estranged wife (the mother of J. L. M. and M. A. M.) and her male companion, and he is eligible for parole in 1997. The termination proceedings were instigated by Sally Weaver, the children’s maternal aunt, who was appointed their temporary guardian after appellant’s arrest. The evidence adduced at the hearing established that on March 24, 1990, appellant took a gun from his father’s truck, broke into his wife’s apartment in the middle of the night, and shot her and her male companion. The children were sleeping in the apartment when appellant entered. J. L. M. recalled hearing his mother’s screams and finding her body after appellant left. The children remained alone in the apartment with the bodies until appellant’s relatives contacted police the next morning. After his arrest, appellant consented to the temporary guardianship, and since that time M. A. M. has lived with Weaver and J. L. M. has resided with Jane Scott, the children’s other maternal aunt.

Additional testimony established that prior to the murders appellant had a history of violent and abusive behavior toward his wife. On numerous occasions she sought shelter for herself and her children with relatives or the local battered women’s shelter because appellant had beaten her or had left her without providing resources sufficient to enable her to feed and clothe the children. Bonnie McMillan, a caseworker from the battered women’s shelter, testified that appellant’s wife received Aid to Families with Dependent Children for several years because of appellant’s failure to support the family. During the marriage, appellant was hospitalized several times for treatment of alcoholism. Jane Scott testified that she once saw appellant slap J. L. M. so hard that the boy was knocked to the ground. A clinical psychologist who was counselling the children testified that they had experienced nightmares, depression, sadness, and post-traumatic stress disorder as a result of the murder of their mother, although they were improving with therapy and the presence of a stable living situation. He also stated that the children had no desire to see their father or any member of his family and that they were afraid of their father because he killed their mother. The guardian ad litem recommended to the court that appellant’s parental rights be terminated and that the children be placed in the custody of their maternal aunts.

Appellant testified that he wanted to care for his children, and that since he had been incarcerated he had attempted to communicate with the children and had asked Weaver and Scott to allow them to visit him, but that they refused to allow him any contact. He stated that he was planning to continue his schooling while in prison and that upon his release he intended to live with his parents and work in his father’s sheet metal business.

In considering a petition for termination of parental rights, the court first must determine whether there exists clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-81 (a). Such misconduct or inability may be found if, inter alia, the child is found to be a deprived child as defined in OCGA § 15-11-2; this deprivation results from a lack of proper parental care or control; the lack of care or control is likely to continue or will not likely be remedied; and this continued deprivation will or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). A finding of unfitness must center on the parent alone, and must be based on clear and convincing evidence of present unfitness, not merely upon evidence of past unfitness. In the Interest of H. L. T., 164 Ga. App. 517, 520 (298 SE2d 33) (1982). Termination of parental rights is a severe measure authorized only under compelling circumstances when demonstrated by clear and convincing evidence. Heath v. McGuire, 167 Ga. App. 489, 491 (306 SE2d 741) (1983).

As appellant correctly notes, the murder of one parent by another does not automatically result in a forfeiture of the latter parent’s parental rights, H. L. T., supra at 518, but instead must be considered together with other evidence of parental unfitness. See id. at 518-520. Here, however, in addition to appellant’s plea of guilty to the murder of the children’s mother and her companion in the children’s hearing, evidence was adduced that appellant repeatedly had neglected the physical and emotional needs of the children, that he had a history of violent and abusive behavior toward the children and their mother, and that the murders had a demonstrable negative effect on his relationship with the children. See OCGA § 15-11-81 (b) (4) (B) (iii) - (v). Moreover, as the juvenile court recognized, the fact that appellant violently murdered the children’s mother and another person within the children’s hearing and then left the children alone with the bodies for six hours constitutes egregious conduct of an emotionally cruel and abusive nature, see OCGA § 15-11-81 (b) (4) (B) (iv), and authorizes an inference of “a moral unfitness . . . which is likely to continue with resultant harm to the innocent children].” Heath, supra at 492 (3).

Decided April 22, 1992.

Cowen & Cowen, Martin L. Cowen III, for appellant.

Michael J. Bowers, Attorney General, Margot M. Cairnes, Staff Attorney, Stephen F. White, Robert L. Ferguson, for appellee.

Appellant’s argument that the children cannot be considered to be “deprived” as defined in OCGA § 15-11-2 (8) since they are living with temporary guardians is without merit, for the statutory finding of deprivation is based on an absence of proper parental care or control. Additionally, the juvenile court may evaluate the evidence concerning the conditions in which the children would be raised if they were placed in appellant’s home to ascertain whether deprivation is likely to occur in the future. Jones v. Dept. of Human Resources, 155 Ga. App. 371-372 (271 SE2d 27) (1980). Accordingly, we find the evidence sufficient to authorize the termination of appellant’s parental rights. See Heath, supra at 490-492 (3). Accord In the Interest of D. S., 176 Ga. App. 482-484 (336 SE2d 358) (1985).

2. Appellant contends the juvenile court erred by allowing McMillan to testify from a report summarizing the battered women’s shelter’s records , on appellant’s wife. OCGA § 24-9-69 authorizes the use of any written document to refresh a witness’s recollection provided the witness “shall finally speak from his recollection thus refreshed.” McMillan’s testimony as a whole sufficiently demonstrated that she was testifying from her own recollection, not merely from the report. Thus, the testimony properly was admitted. Holland v. State, 182 Ga. App. 611, 612 (2) (356 SE2d 700) (1987).

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A0136.
    DEMPSEY v. ETOWAH BANK.
    (418 SE2d 418)
    Decided April 22, 1992.

      Davis & White, Jefferson L. Davis, Jr., for appellant.
   Carley, Presiding Judge.

The relevant facts in the instant appeal are as follows: Appellant-defendant purchased three motor vehicles and a boat from one Jerry McBride d/b/a Fleet Recovery. In payment, appellant gave McBride a check in the amount of $5,600. McBride endorsed the check and deposited it into the checking account that Fleet Recovery maintained with appellee-plaintiff. Appellee immediately credited Fleet Recovery’s account with the amount of appellant’s check. Subsequently, appellant issued a stop-payment order on the check but, by the time that appellee received notification, there was only $401.15 remaining in Fleet Recovery’s account. Appellee then brought the instant suit against appellant, seeking to recover the $5,198.85 balance. Appellant answered and, after discovery, appellee moved for summary judgment. The trial court granted appellee’s motion and appellant appeals.

If appellee were merely a holder of appellant’s check to Fleet Recovery, then appellee would hold that check subject to the defenses enumerated in OCGA § 11-3-306. Tidwell v. Bank of Tifton, 115 Ga. App. 555, 556 (1) (155 SE2d 451) (1967). Under the undisputed evidence of record, however, appellee is a holder in due course as defined in OCGA § 11-3-302 (1). In good faith, appellee gave value for the check and, at the time it did so, it had no notice of appellant’s stop-payment order or of appellant’s defense against payment to Fleet Recovery for the three motor vehicles and the boat. Pazol v. Citizens Nat. Bank of Sandy Springs, 110 Ga. App. 319, 320 (1) (138 SE2d 442) (1964). Accordingly, appellee took the check free from the defenses enumerated in OCGA § 11-3-306 and subject only to the defenses enumerated in OCGA § 11-3-305 (2). Under the evidence of record, no genuine issue of material fact remains as to the viability of any of the defenses enumerated in OCGA § 11-3-305 (2). It follows, therefore, that the trial court correctly granted summary judgment in favor of appellee.

Judgment affirmed.

Pope and Johnson, JJ., concur.

Bishop & McElyea, M. Ellen McElyea, for appellee.