author: Banks, Presiding Judge.

text:
    A89A1030, A89A1062.
    STINCHCOMB v. THE STATE (two cases).
    (383 SE2d 609)
   Banks, Presiding Judge.

The appellant, Ricky Stinchcomb, was convicted of trafficking in cocaine, possessing marijuana with intent to distribute, misdemeanor possession of marijuana, and obstructing an officer. He contends on appeal that the trial judge erred in refusing to recuse himself on the ground that the case had been improperly assigned to him in violation of Rule 3 of the Uniform Superior Court Rules and on the ground that his impartiality had been compromised by an ex parte discussion with the assistant district attorney handling the case.

The case was specially assigned to the trial judge under the mistaken belief that it was a companion or related case to one involving the appellant’s brother, Milton Stinchcomb, who had previously entered a guilty plea to an indictment before the same judge and was serving a probated sentence as a result of that plea. After the appellant had been arraigned and had filed an unsuccessful motion for bond, his attorney sent a letter to the court administrator stating that the case had been specially assigned under the mistaken belief that Milton and Ricky Stinchcomb were the same person and requesting that the case be reassigned randomly, in accordance with the normal procedure. The court administrator complied, and the appellant subsequently made a second request for bond before the new judge to whom the case was transferred. At this time, the assistant district attorney who had previously been handling the case for the state approached the original trial judge and inquired about the propriety of the transfer. The original judge, who had not previously been aware of the transfer, responded by instructing the court administrator to reassign the case back to him; and again the court administrator complied.

During the hearing on the motion to recuse, the judge explained his actions as follows: “[W]hen this information came to me that it had been assigned to this court in error to start with, but nevertheless the assignment had taken place, we had had an arraignment, we had had a hearing on the bond, it had been set down for a trial calendar and then at that point it had been taken out from this court, basically, and reassigned to another court[,] at that point I said, no, that’s not the way it works. . . . The only time we would send the case back is when we knew the defendant or had some interest in the case one way or the other, or some personal knowledge of the case, something like that. ... I am saying that may very well have been done incorrectly and in violation of that rule, because as it turns out Ricky Stynchcomb (sic) and Milton Stynchcomb (sic) are not the same people, and the case should not have been specifically assigned to me. There is no question about that. As a practical matter, it was, and work was done as a result of that, and down the line there is no reason to change that. It would simply mean that Mr. Stynchcomb, or whoever was in his position, would end up sitting in jail for a long period of time because the case would have to be reassigned and rear-raigned, and the district attorney would change, in frequent cases, and it would cause more problems at the jail with more people spending unnecessary time in the jail before they even had a hearing, any kind of hearing in front of the court. So as a practical matter, that’s not the way it works. If the case is assigned, unless there is some reason to take the judge off the case, then it’s going to stay there, even if it was assigned by mistake in the first place. And that’s the situation here.”

With respect to his ex parte communication with the assistant district attorney, the court stated: “There was absolutely no ex parte communication about any facts in this case. I do not know the facts in this case. I have never been privy to the facts in this case. The only discussion that [the assistant district attorney and I] had, is did this case get reassigned, how did it get assigned in the first place, how did it get reassigned, and then I instructed Mr. Jones, the court administrator, that it should not have been reassigned, that it was my case, we had already had a bond hearing on it, and it should remain with me.” Held:

Rule 3.1 of the Uniform Superior Court Rules specifies, in pertinent part, as follows: “Method of Assignment. In multi-judge circuits, unless a majority of the judges in a circuit elect to adopt a different system, all actions, civil and criminal, shall be assigned by the clerk of each superior court according to a plan approved by such judges to the end that each judge is allocated an equal number of cases. The clerk shall have no power or discretion in determining the judge to whom any case is assigned; the clerk’s duties are ministerial only in this respect and his responsibility is to carry out the method of assignment established by the judges. The assignment system is designed to prevent any person’s choosing the judge to whom an action is to be assigned; all persons are directed to refrain from attempting to affect such assignment in any way.”

Rule 3.2 provides for the special assignment of companion and related cases, as follows: “When practical, all actions involving substantially the same parties or substantially the same subject matter, or substantially the same factual issues, whether pending simultaneously or not, shall be assigned to the same judge. Whenever such action is refiled, or a derivative or companion action is filed or refiled, or a defendant is reindicted on a previous charge, or is indicted on a subsequent charge while still under charges or serving a confinement or probated sentence on a previous action, or co-defendants are indicted separately, such actions shall be assigned to the judge to whom the original action was or is assigned.”

Decided June 20, 1989.

John E. Webster, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Joseph J. Drolet, Linda S. Finley, Assistant District Attorneys, for appellee.

We find nothing in these rules which would require that, where a case has been specially assigned to a judge under the mistaken belief that it is a companion or related case to one previously assigned to that judge, it must be reassigned upon the discovery of the error. As for the ex parte communication between the trial judge and the assistant district attorney, we shall accept at face value the judge’s statement that the merits or facts of the case were not discussed and that the only matter which was discussed was the fact that the case had been assigned .to another judge at the request of the appellant’s attorney. Inasmuch as the appellant’s counsel stated during the hearing on the recusal motion that he was not alleging that there was any actual bias or impropriety involved in the judge’s actions, we hold that any technical violation of the rule against ex parte communications which may have occurred (see Uniform Superior Court Rule 4.1) does not, under the circumstances, constitute ground for reversal of the appellant’s convictions.

Judgments affirmed.

Sognier and Pope, JJ., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A89A1074.
    VALDEZ v. THE STATE.
    (383 SE2d 611)
   Banke, Presiding Judge.

The appellant was charged in a four-count accusation with (1) failure to yield right-of-way, (2) improper lane usage, (3) driving a motor vehicle while under the influence of alcohol, and (4) driving a motor vehicle with a blood alcohol content of at least 0.12 percent by weight. The trial court directed a verdict in his favor on Count 1; and a jury subsequently found him guilty on Count 3, while acquitting him on Counts 2 and 4. He appeals. Held:

1. The arresting officer testified that, upon being asked to recite the alphabet at the time of his arrest, the appellant replied “that he didn’t know his alphabet; that he’d only had a sixth grade education.” The appellant made a motion for a mistrial or, in the alternative, for a continuance at this time on the ground that the substance of this statement- had not been supplied to him, either in response to a pretrial Brady motion which he had filed or in response to his written demand, filed pursuant to OCGA § 17-7-210, for a copy of any statement made by him while in police custody. He enumerates as error the denial of this motion.

We agree with the trial court that the statement in question did not fall within the ambit of OCGA § 17-7-210 because it was not incriminating or inculpatory. See Furlow v. State, 172 Ga. App. 185, 186 (2) (322 SE2d 317) (1984). As for the Brady motion, “a defendant’s own statements to police are not unknown to defendant and are not subject to discovery under Brady. [Cits.]” Fuqua v. State, 183 Ga. App. 414, 417 (359 SE2d 165) (1987). Moreover, “Brady does not require pre-trial disclosure of exculpatory material, and is not violated when such material is made available to defendants during the trial. [Cit.]” Id.

2. The appellant contends that the trial court erred in denying his motion for directed verdict with respect to Counts 2, 3, and 4 of the accusation. Since the jury found the appellant not guilty on Counts 2 and 4, the court’s refusal to direct a verdict in his favor on these counts resulted in no harm to him. See Hazelrig v. State, 171 Ga. App. 942, 943 (1) (321 SE2d 437) (1984). In support of Count 3, which was the D.U.I. count, the arresting officer testified that the appellant’s vehicle had pulled onto the street directly in front of his patrol car, forcing him to brake heavily to avoid hitting it; that he had later observed the vehicle straddling two lanes while stopped at an intersection; that the appellant had subsequently exited the vehicle from the driver’s seat; and that when he confronted the appellant, the appellant was “swaying,” had the odor of alcohol on his breath, and spoke ,in a confused and slurred manner. Based on this testimony, a rational trier of fact would have been authorized to reject the testimony of the appellant and his witnesses that someone else had been driving the vehicle and to conclude beyond a reasonable doubt that the appellant had been in actual physical control of the vehicle while under the influence of alcohol to a degree which rendered him a less safe driver. Accord Howell v. State, 179 Ga. App. 632 (1), 634 (347 SE2d 358) (1986); Barlow v. State, 158 Ga. App. 500 (280 SE2d 899) (1981).

3. The appellant contends that the trial court erred in admitting oral testimony concerning the results of an intoximeter test which had been administered to him subsequent to his arrest, where the written results from the test had been excluded on the ground that a copy had been tendered without any satisfactory explanation for the absence of the original. The testimony at issue was offered by the operator of the intoximeter machine, and there was no contention either that this witness had not been qualified to operate the machine or that he had failed to perform the test in accordance with methods approved by the Division of Forensic Services of the Georgia Bureau of Investigation. See generally OCGA § 40-6-392 (a) (1). Accordingly, his testimony was properly admitted as original evidence. Accord Riley v. State, 175 Ga. App. 810 (1) (334 SE2d 863) (1985); Fletcher v. State, 157 Ga. App. 707 (1) (278 SE2d 444) (1981). The witness’s evident mischaracterization of the test results at one point during his testimony as having been “1.8” rather than “.18” grams percent, and his occasional reference to the test reading as signifying the weight of alcohol per 100 milliliters of blood rather than 100 cc’s of blood, were matters which the appellant was free to explore on cross-examination but which did not affect the admissibility of the witness’s testimony under the circumstances.

Decided June 20, 1989.

Alan C. Manheim, for appellant.

Patrick Head, Solicitor, Melodie H. Clayton, Jane P. Manning, Assistant Solicitors, for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1121.
    REEVES v. THE STATE.
    (383 SE2d 613)
   Banke, Presiding Judge.

The appellant was convicted of trafficking in cocaine based on evidence that 82.4 grams of cocaine had been seized from his person after he responded to a telephone request by an informant to bring three ounces of an unidentified substance to a certain motel room. He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that the trial court erred in charging the jury as follows: “I charge you that it would be proper for you to consider the contents of tape-recorded telephone conversations only if you find that either party to the conversation consented to its being recorded, and that the conversation was directly in furtherance of a crime.” While acknowledging that this charge embodied a correct statement of the law as set forth in OCGA §§ 16-11-66 and 16-11-67, the appellant maintains that since the tape recorded conversations at issue were admitted into evidence without objection, the charge necessarily implied to the jury that he must, in fact, have committed the crime for which he was on trial, or else the conversations would not have been admitted for their consideration. We disagree that the charge was reasonably subject to such an interpretation and conclude that, if anything, it was beneficial to the appellant in that it would have authorized the jury to disregard inculpatory evidence the validity of which was not in dispute.

2. The appellant contends that the trial court erred in sustaining the state’s objection to the following statement made by his trial counsel during closing argument: “And when [the informant] called [the appellant] on the phone, he asks him . . . , ‘You still got my girl over there?’ . . . And I submit to you what [the informant] was saying .. . is, ‘You still got my cocaine over there?’ ” The state’s attorney objected on the ground that “there’s no evidence whatsoever to that.” The trial court sustained the state’s objection based on a determination that the evidence provided no “reasonable” basis for an inference that the informant had used the word “girl” as a code word for cocaine.

Generally speaking, “[t]he fact that a deduction may be illogical, unreasonable or even absurd, is a matter for reply by adverse counsel and not rebuke by the court. [Cit.]” Cooper v. State, 178 Ga. App. 709, 712 (345 SE2d 606) (1986). Accord Sharp v. State, 153 Ga. App. 486 (265 SE2d 837) (1980). “ ‘What the law condemns is the injection into the argument of extrinsic and prejudicial matters which have no basis in the evidence.’ [Cit.]” Conner v. State, 251 Ga. 113, 123 (303 SE2d 266) (1983). As the argument in question did not tend to interject an extrinsic and prejudicial matter into the case, we are inclined to agree with the appellant that the state’s objection should not have been sustained. However, we hold that any error which may have resulted from the court’s ruling was harmless to the appellant under the circumstances. The purpose of the disallowed argument was evidently to convince the jury that the 82.4 grams of cocaine which had been seized from the appellant’s person at the time of his arrest did not belong to him but to the informant, to whom he was delivering it. The issue of who owned the cocaine was, however, irrelevant to the issues being tried. The offense of trafficking in cocaine is committed by “[a]ny person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in possession of 28 grams or more of cocaine. . . .” OCGA § 16-13-31 (a) (1). As ownership of the contraband is not an. element of the offense, the trial court’s refusal to permit the argument in question could not have harmed the appellant.

Judgment affirmed.

Sognier and Pope, JJ., concur.

Decided June 20, 1989.

Reginald L. Bellury, for appellant.

Joseph H. Briley, District Attorney, Al Martinez, Assistant District Attorney, for appellee.


author: Birdsong, Judge.

text:
    A89A0257.
    REECE v. THE STATE.
    (383 SE2d 572)
   Birdsong, Judge.

Appellant Charles Reece was convicted of rape, statutory rape, and child molestation, all in connection with a twelve-year-old girl who had lived in his home as a foster child.

The appellant enumerates many errors below, but we find it sufficient to rule upon only one, and reverse the conviction on account of it. Held:

The determinative issue centers around OCGA § 24-2-3, Georgia’s “rape shield law.” It was shown that the victim experienced a vaginal infection observed by the physician as a yellow-greenish, frothy discharge with a foul odor. The State elicited this testimony from the doctor, as well as the fact that the victim told the doctor “that [it] was present after the time of vaginal penetration, and then it had persisted until the time that I saw her.” There was other evidence that the victim said she had not had sexual intercourse with anyone else, and evidence that sexual intercourse transmits the disease.

The defendant strenuously objected to this testimony, reminding the court that it had in limine instructed defendant he “could not absolutely, and surely to goodness . . . interject anything about this girl having a vaginal infection.” He insisted that the evidence introduced by the State implied and suggested defendant had given the victim a venereal or vaginal disease. He argued that the door had been opened for him to “put a name” to the disease (trichomoniasis) and to show that it is usually sexually transmitted; that if the defendant had had sexual intercourse with the victim he would have transmitted the disease to her (and, presumably, if she already had it she would have transmitted it to him); and, significantly, that the defendant did not have and had not had such a disease, which would be proved by the medical records of his wife, who had at that very time been undergoing medical and gynecological treatment and testing for pregnancy and who herself was proven to have no such disease.

The prosecutor responded that whatever the doctor had said, “[t]here was absolutely no mention of a vaginal disease of any nature. . . . This jury has not been led to believe that there was any vaginal disease or infection of any kind.” The discussion became subjective, but the trial court itself said to the prosecutor, “what you are doing by putting [it] in there, you are trying to infer it was given to her by the Defendant . . . [w]hich sort of affects my sensibilities to some extent.”

The case of Brown v. State, 173 Ga. App. 640 (327 SE2d 515) was discussed; in that case the defendant contended it was error to disallow his cross-examination of the 12-year-old victim “as to other sexual activity to support his defense that her vaginal infection was caused by someone other than himself.” The trial court here aptly indicated that the situation in this case was the opposite: the State had elicited and introduced evidence that the child developed a vaginal infection after the “forcible entry” by the defendant, thus implying the defendant gave her the disease; but still the trial court believed OCGA § 24-2-3 prevented the defendant from this line of questioning. The trial court inferred from Brown’s disallowance of defense cross-examination about vaginal disease, that the State had interjected the matter, and therefore, according to Brown, this fact did not open the door to cross-examination in violation of § 24-2-3. Defendant’s attorney urged: “Brown doesn’t say the State can lead a jury to believe that a Defendant has given a victim a venereal disease and then [the defendant] not even be allowed to mention it.”

The trial court ruled, finally, that the defendant could, because of the crack in the door opened by the State, ask “only three questions . . . number one, the name — put a name on this disease — and two, the most probable method of transmitting it, and number three, do you have to have medication to clear it up?” Defense counsel begged to ask a fourth question, viz., if defendant and his wife were having sexual intercourse during the time in question “and her medical records show she did not have trichomoniasis. ...” The trial court would not let him pursue this course.

This was error. The facts in Brown are very different from the facts in this case, so it does not necessarily control here. The trial court in this case discerned that, despite previous adjuration, the State had “calculatedly” injected the fact of the victim’s vaginal or venereal infection.

Although the State earnestly denied any attempt by this to imply the defendant transmitted a venereal disease to the victim, ergo, that he therefore committed the crimes charged, we are in agreement with the trial court and the defense that there can have been no other object. In fact, the way the doctor’s testimony was stated directly implies defendant gave her the disease: “She told me that [the yellow-greenish, frothy discharge with a foul odor] was present after the time of vaginal penetration, and then it had persisted until the time that I saw her.” Particularly since the doctor testified the victim maintained she had not had sexual intercourse with anyone else, the testimony just quoted virtually compels the jury to reach but one conclusion: that the defendant had sexual intercourse with her. He should have been allowed, in a proper fashion, to show by his wife’s medical records, or otherwise, that his wife was then undergoing medical treatment and tests for pregnancy and showed no sign of this disease, and therefore, by logical extension, that the defendant did not have the disease.

Decided May 23, 1989

Rehearing denied June 21, 1989.

Douglas W. McDonald Law Offices, P. Gerald Cody, Jr., for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

We do not see how allowing this vital defense to be put forward offends the rape shield law, OCGA § 24-2-3, in any way at all. Perhaps it might suggest by deduction that if defendant did not have the disease, and did not transmit it to the victim, then someone else might have done so. This is not an improper attempt to explore the victim’s past or other sexual experience; and if under some remote consideration it suggests that (in addition to perhaps bathing in water which another infected person had enjoyed) the victim had some sexual activity with someone else, so be it. That is speculation only. Any possible harm caused to the victim by such speculation is far outweighed by the harm done to the defendant in denying him the opportunity to prove he did not have the disease. Such speculation should not stand in the way of allowing defendant to present this vital defense to the prejudicial testimony elicited by the State. The conviction must be reversed on this basis, and we need explore no other.

Judgment reversed.

Deen, P. J., and Benham, J., concur.


text:
    A89A0274.
    ROTH et al. v. McDANIEL ENTERPRISES, INC.
    (383 SE2d 569)
   Birdsong, Judge.

Appellants, Pamela and Gregory Roth, bring this appeal from the grant of summary judgment on their counterclaim against their landlord, McDaniel Enterprises, Inc., who filed a dispossessory warrant against them. The Roths purchased a mobile home from Bestin Homes, Inc.; the home was located in the mobile home park owned by McDaniel Enterprises, Inc. Pamela Roth signed a copy of the mobile home park’s rules and regulations which forbid “[¡Improper conduct and excessive noise, proving disturbing and objectionable to your neighbors. . . .” Mrs. William H. Millican, the resident manager of the mobile home park, gave four written notices to the Roths that they were in continued violation of the park’s rules and regulations, and that if such conduct continued they would be asked to move. Ap-pellee contends the Roth children again violated the regulations and she filed a dispossessory warrant in the Gwinnett Magistrate’s Court. Appellants filed an answer and a counterclaim alleging a conspiracy and fraud between the mobile home park and the seller of the mobile home. Because of the amount claimed in the counterclaim, this action was transferred to the Gwinnett State Court. The state court granted appellee’s motion for summary judgment on appellants’ counterclaim and they appeal. Held:

1. Appellants enumerate but one error, i.e., that the judgment of the trial court “granting Summary Judgment, dismissing appellants’ counterclaims, is contrary to law.”

Nothing else being argued, we take this to mean that the grant was contrary to the law of summary judgments in that there were issues of fact remaining. Appellants’ counterclaim was “based upon fraud, misrepresentation, improper and wrongful inducement, concealment and failure to disclose . . . illegal and wrongful trespass . . . frivolous and groundless defensive pleadings . . . and . . . upon unreasonable and abusive litigation.” The basis for such claims was explored in the depositions. For example, even though Mrs. Roth signed a document with the mobile home park in which she was notified that she would be paying “rent for $90.00 per month,” that if they sold their mobile home the new buyer would not be permitted to remain in the park without approval, that rentals of the mobile home were not allowed, that they could have no more than two cars, and that “[i]mproper conduct and excessive noise, proving disturbing and objectionable to your neighbors, WILL NOT BE TOLERATED,” Mr. Roth was nevertheless of the opinion he had purchased the land where he parked his mobile home, and asserts that an issue of fact exists as to this, as “fraud.”

The lease agreement, just quoted, is clear. Moreover, the resident manager and an officer of McDaniel Enterprises in affidavits stated that there was no agreement or conspiracy between the mobile home park and Bestin Homes, and that the only money received from Bestin was rent for their mobile homes parked. Appellee’s affidavits established a prima facie entitlement to judgment. With the evidence in this posture, the burden shifted to the appellants in counterclaim, to come forward with rebuttal evidence or suffer judgment. Bright v. Knecht, 182 Ga. App. 820, 821 (357 SE2d 159); accord Meade v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357). The appellants made only general allegations of impropriety, however, and these were directly rebutted by testimony of one of the parties. This testimony is therefore sufficient to win summary judgment. See National Property Owners Ins. Co. v. Wells, 166 Ga. App. 281, 283 (304 SE2d 458). We find no error in the grant of the motion for summary judgment against appellants’ counterclaim. “The summary judgment law does not require the defendant to show that no issue of fact remains, but rather tha[t] no genuine issue of material fact remains [cits.]; and while there may be some ‘shadowy semblance of an issue’ [cit.], the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.” McCray v. Hunter, 157 Ga. App. 509, 511-512 (277 SE2d 795). Because of appellants’ failure to show evidence supporting their general allegation of fraud, no genuine issue of material fact is raised.

Decided May 22, 1989

Rehearing denied June 21, 1989

Phillip N. Lavender, for appellants.

Bauer, Deitch & Raines, John A. Bender, Jr., George B. Ference, Thomas E. Raines, for appellee.

2. Appellants attempt to enlarge their single enumeration of error by arguing lack of jurisdiction of the plaintiff’s action for failure of personal service. Although this issue was asserted in the answer of appellants, it was not raised below in any form calling for a ruling and is not included in the single error enumerated. Therefore, we will not consider it on appeal. See MacDonald v. MacDonald, 156 Ga. App. 565, 566 (275 SE2d 142); Hurston v. Ga. Farm &c. Ins. Co., 148 Ga. App. 324, 326 (2) (250 SE2d 886); Redwing Carriers v. Knight, 143 Ga. App. 668, 674 (239 SE2d 686).

3. Likewise, the argument that the plaintiff is properly named “McDaniel Enterprises” and not “McDaniel Enterprises, Inc.” was not raised to the court below, and is not properly before us.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A0328.
    SMITH v. THE STATE.
    (383 SE2d 600)
   Birdsong, Judge.

This is the second appearance of the appellant before this court in this matter. The basic facts can be found in Smith v. State, 186 Ga. App. 303 (367 SE2d 573), in which the judgment was affirmed on the convictions and certain counts of the sentence. The case was remanded to the trial court for a hearing on the appellant’s claims of ineffectiveness of his original trial defense counsel and for resentenc-ing on the other counts. The trial court having complied with the remand and the appellant still being dissatisfied with the result, he now assigns as error (1) the trial judge refusing to recuse himself on the appellant’s motion, (2) the trial judge resentencing the appellant after denying the motion to recuse, and (3) the trial judge finding that the defense counsel was not ineffective. Pursuant to appellant’s request, we have considered, as incorporated, his briefs in both appeals. Held:

1. Appellant’s motion to recuse the trial judge was filed on the day of the hearing on the issue of the original trial defense counsel’s ineffectiveness. Uniform Superior Court Rule 25.1 requires motions for recusal to be filed within five days of the movant’s first learning of the purported grounds for disqualification, or at least ten days prior to trial. The appellant’s motion was untimely on both grounds. Wakefield v. Stevens, 249 Ga. 254, 255-256 (290 SE2d 58).

The trial judge set the case for hearing on July 11, 1988, by order dated May 10, 1988. The trial court was authorized to find that appellant’s reasons why he could not file the motion within the time prescribed by the Uniform Rules are not persuasive and do not constitute good cause. Thus, correctly finding that the motion was untimely, the trial judge appropriately denied the motion. Although the judge permitted the appellant’s counsel to be heard on this issue, he committed no error and did not cure the appellant’s untimely motion by so doing. The motion being untimely, the trial judge was not required to refer the case to another judge for hearing on the motion to recuse. See Birt v. State, 256 Ga. 483, 484 (350 SE2d 241). Moreover, the reasons stated for the recusal did not meet the standards for disqualification. “[T]o be disqualifying the alleged bias ‘must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.’ [Cit.]” Carter v. State, 246 Ga. 328, 329 (271 SE2d 475). The reasons provided in the appellant’s affidavit failed to meet this test as he alleged as reasons for the disqualification merely the rulings and decisions made by the trial judge in the course of the trial. Accordingly, the motion for recusal was properly denied.

2. In view of our decision on the first enumeration of error, appellant’s second enumeration of error, that it was error for the trial judge to resentence him after denying the recusal motion, is also without merit.

3. The appellant’s burden on challenging his counsel’s effectiveness was to establish that his counsel’s performance was deficient and that the deficient performance prejudiced the defense. Brown v. State, 257 Ga. 277, 278 (357 SE2d 590). He was required to show that there was a reasonable probability that the result of the proceedings would have been different but for his counsel’s unprofessional deficiencies. Baggett v. State, 257 Ga. 735 (363 SE2d 257). Further, he had to overcome the strong presumption that the representation was effective. Clarington v. State, 178 Ga. App. 663, 667 (344 SE2d 485). He has not done so.

Appellant’s allegations against his counsel are in part based upon his counsel’s failure to make certain objections which appellant now contends should have been made. The counsel’s performance must be evaluated under the circumstances existing at the trial and not by benefit of hindsight. Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362). Viewed in that manner, we find that the failure to make the objections appellant now wishes had been made, was part of the trial strategy counsel developed after the motion to suppress was denied. Assuming that such objections should have been made (and it is not so clear to us that all the objections would have been necessarily sustained), we do not find that the failure to object under these circumstances constituted ineffective assistance of counsel. Judgmental and tactical errors do not always equate to ineffective assistance of counsel. Clarington, supra.

Appellant now also contends that he should have testified in his own behalf and that his failure to do so was the result of bad advice from counsel because of counsel’s misunderstanding of the law concerning placing a defendant’s character in issue. After reviewing his counsel’s testimony at the hearing, we do not find the confusion appellant asserts. The decision to recommend that the appellant not take the stand was not based upon the belief that such testimony would automatically place the appellant’s character in issue. Rather, counsel’s views were based upon his belief that in appellant’s then-existing emotional state it was highly likely he would himself open the door to an attack on his character. Therefore, we do not find counsel’s recommendation to have been inherently erroneous. While other counsel may have made another recommendation, this one, under the facts of this case, does not constitute a denial of effective assistance of counsel. Heard v. State, 177 Ga. App. 802, 804 (341 SE2d 459).

Considering the totality of the circumstances and not just appellant’s allegations of isolated errors, Clarington, supra, we are satisfied that appellant has failed to meet his burden. He failed to show that his counsel’s performance was deficient and that in any event counsel’s performance prejudiced the defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674). The appellant was provided with reasonably effective assistance of counsel. See Pitts v. Glass, 231 Ga. 638 (203 SE2d 515). Having reviewed the record, including the hearing on remand, and applying the appropriate standards, we find that the appellant’s contentions are without merit.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.

Decided June 9, 1989

Rehearing denied June 21, 1989

Franklin Smith, pro se.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Nelly F. Withers, Assistant District Attorneys, for appellee.


author: Pope, Judge.

text:
    A89A0334.
    AMERICAN EXPRESS COMPANY v. BAKER.
    (383 SE2d 576)
   Pope, Judge.

Plaintiff American Express Company brought suit against defendant Ronald R. Baker to collect a sum allegedly owed on an account. Defendant answered and filed a counterclaim for abusive litigation. When plaintiff failed to respond to defendant’s discovery requests, defendant filed a motion to compel. The motion was set for oral argument at 9:00 a.m. on June 24, 1988. Prior to the hearing, plaintiff announced in open court its voluntary dismissal of the complaint. Written notice of the voluntary dismissal was filed with the clerk at 9:45 a.m. The court nevertheless conducted a hearing on defendant’s motion and, on the same day, issued an order awarding attorney fees to defendant and instructing plaintiff to make its representative available for deposition by August 1, 1988. The order recited that plaintiff had filed a dismissal of its claim. Plaintiff failed to comply with the court’s order and on September 9, 1988, in response to defendant’s motion, the court issued an order holding plaintiff in willful contempt of its previous order and imposing attorney fees and costs totaling $2,405. The order further directed the Sheriff to incarcerate Mr. T. M. Groder, plaintiff’s employee, until he paid the assessed fees and submitted to deposition on September 29, 1988. Plaintiff appeals both the original order granting defendant’s motion to compel and the subsequent order holding plaintiff and Groder in contempt.

1. The threshold issue in this case is whether Moore v. Memorial Med. Center, 258 Ga. 696 (373 SE2d 204) (1988), should be applied retroactively. In Moore, the Georgia Supreme Court held that a counterclaim for abusive litigation may survive the voluntary dismissal of plaintiff’s claim. However, the orders which are the subject of this appeal were entered prior to the date Moore was decided. Prior to the Moore decision, this court had held that an abusive litigation counterclaim does not survive an independent cause of action once the plaintiff’s claim was voluntarily dismissed. See Memorial Med. Center v. Moore, 184 Ga. App. 176 (361 SE2d 49) (1987), rev’d 258 Ga. 696, supra; Rothstein v. L. F. Still & Co., 181 Ga. App. 113 (2c) (351 SE2d 513) (1986). Plaintiff argues that the Moore decision should not be applied retroactively and that, at the time these orders were entered, because the complaint had been dismissed then the entire case was dismissed so that the court lacked jurisdiction to rule on defendant’s motion.

We hold that Moore should be applied retroactively so as to preserve defendant’s abusive litigation counterclaim. In Chevron Oil Co. v. Huson, 404 U. S. 97 (92 SC 349, 30 LE2d 296) (1971), the United States Supreme Court set forth three factors which a court should consider in determining whether a judicial decision should or should not be applied retroactively. First, a non-retroactive decision “must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied [cit.] or by deciding an issue of first impression whose resolution was not clearly foreshadowed [cit.].” Id. at 106. If the decision does set forth a new principle of law, then, as the next step, the court must balance the merits and demerits of the particular case “ ‘by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.’ [Cit.]” Id. at 107. Finally, the court should consider whether retroactive application would cause an inequitable result of injustice or hardship. See also Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (3) (300 SE2d 673) (1983).

The Moore decision does overrule the previous decisions of this court on the issue of whether an abusive litigation counterclaim survives the voluntary dismissal of the original claim. However, we believe the other factors set forth in the Chevron Oil Co., case militate for the retroactive application of Moore. The very purpose of the Georgia Supreme Court in redefining the common-law claim for abusive litigation was to assure that a plaintiff with a bona fide claim would not be denied an “effective means of relief against a defendant who employs improper defensive tactics.” Yost v. Torok, 256 Ga. 92, 94 (6) (344 SE2d 414) (1986). This purpose will be promoted by the retroactive application of Moore; it would be thwarted if we were to refuse to apply Moore to the procedural facts and circumstances of the case at hand. A refusal to apply Moore to the case at hand would result in injustice and hardship not to the plaintiff but to the defendant, because he would be effectively precluded from pursuing his claim for abusive litigation. The only resulting hardship to plaintiff by our retroactive application of Moore is to require plaintiff to respond to a claim and to be held liable, if the claim is proven, for the tort which was defined in Yost well before plaintiff filed its complaint. The plaintiff knew or should have known at the time it filed its complaint that it would be subject to liability for abusive litigation if the complaint lacked substantial justification. We find defendant’s counterclaim for abusive litigation survived the plaintiff’s voluntary dismissal of the initial claim and, therefore, the court did not lack jurisdiction to rule on defendant’s motions after plaintiff’s complaint had been dismissed.

2. The court found plaintiff in wilful contempt of its order compelling response to discovery and requiring plaintiff to make a representative available for deposition and to pay attorney fees and costs for failure to make a representative available for a previously noticed deposition. As a result of finding plaintiff in wilful contempt, the court ordered plaintiff’s employee, T. M. Groder, to be incarcerated until he paid the attorney fees and costs awarded in the original order to compel, paid additional attorney fees for defendant’s bringing the motion for sanctions, responded to defendant’s discovery requests and submitted to a deposition at a stated time and date. We find this portion of the court’s contempt order to be an abuse of discretion. Pursuant to OCGA § 9-11-37 (b) (2), the court may impose sanctions against “a party or an officer, director, or managing agent of a party or a person designated under paragraph (6) of subsection (b) of Code Section 9-11-30 ... to testify on behalf of a party . . . .” Although the record contains no written notice of plaintiff’s designating Groder as its representative for deposition, the undisputed facts asserted in defendant’s motion to compel and motion for sanctions, and recited in the court’s order compelling discovery, indicate Groder was informally designated as plaintiff’s agent by plaintiff’s agreement to make him available for deposition. As the designated representative of a party, Groder is subject to the imposition of sanctions pursuant to OCGA § 9-11-37 (b) (2). However, the court’s contempt order shows that sanctions were imposed upon him for contempt of the earlier order which was not directed to him. The earlier order compelling plaintiff’s response to defendant’s discovery was directed only to plaintiff. It was plaintiff, and not its employee, Groder, who was ordered to pay attorney fees and costs and to respond to defendant’s discovery requests. The earlier order did not direct Groder to appear for deposition but directed plaintiff “to have its representative appear for a deposition . ...” A person cannot be found in contempt of a court order or writ which was not directed to him. Yarbrough v. First Nat. Bank of Atlanta, 143 Ga. App. 399 (238 SE2d 758) (1977). Thus, the court improperly imposed sanctions against Groder for failing to comply with an order directed to the plaintiff. However, the plaintiff did fail to comply with the court’s initial order compelling response to defendant’s discovery request, ordering plaintiff to make its representative available for deposition and ordering plaintiff to pay attorney fees and costs. Thus, the court did not err in prohibiting plaintiff from presenting witnesses to testify at the trial of the case as authorized by OCGA § 9-11-37 (b) (2) (B).

The contempt order recited that the award of attorney fees and costs was made a judgment of the court “which may be enforceable by any [p]ost [j]udgment collection methods, including but not limited to garnishment, attachment and execution.” Plaintiff argues that the court erred in making the award immediately enforceable because only final judgments can be enforced. Curiously, if plaintiff’s contention were correct then this court would have no jurisdiction over plaintiff’s appeal, for if the contempt order was not final, then plaintiff’s direct appeal would have to be dismissed for plaintiff’s failure to obtain a certificate of immediate review and to apply for interlocutory appeal. Although the trial court did not employ the language of OCGA § 9-11-54 (b) in directing entry of a final judgment on the award of attorney fees and costs, nevertheless, the trial court unequivocally expressed its intent for the award to be final by declaring the award to be a judgment enforceable by post judgment collection. We find no error in making the award of attorney fees and costs immediately enforceable.

Decided June 1, 1989

Rehearing denied June 21, 1989

Alston & Bird, G. Conley Ingram, John I. Spangler III, Rita T. Williams, for appellant.

Edwin M. Saginar, for appellee.

Because we find the order imposing sanctions was made a final judgment, defendant’s motion to dismiss the appeal is denied. Defendant’s motion to supplement the record with the record of a previous lawsuit between these two parties is also denied.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0447.
    SOUTHERN GUARANTY INSURANCE COMPANY OF GEORGIA v. ASH et al.
    (383 SE2d 579)
   Birdsong, Judge.

This is an interlocutory appeal of a discovery order. This appeal concerns the scope of the attorney-client privilege between a corporate client and its counsel, and the distinction between legal and business advice.

The order pertinently requires “[t]he [appellant] produce all correspondence, letters, newsletters and directives from its attorneys which are of a general nature, directing and advising the insurance company in the day to day business of handling no-fault or PIP claims. The [appellant] shall also produce all letters, newsletters, and other documents from its attorneys which are used by the [appellant’s] adjustors in the day to day business of handling, processing and adjusting no-fault or PIP claims. . . . The [appellant] is not required to produce correspondence or letters from its attorneys which are directed to specific cases pending in which Southern General Insurance Company of Georgia or its insureds are parties.”

Appellant asserts that the order erroneously compels production of documents clearly protected by attorney-client privilege, and that the trial court has required production of certain materials prepared by counsel, at appellant’s specific request, for the purpose of providing legal advice.

Appellee asserts that the scope of protection provided by the attorney-client privilege to an attorney’s advice to his client is controlled by Marriott Corp. v. American Academy &c., 157 Ga. App. 497 (277 SE2d 785). Although Marriott establishes a five-part test, which is controlling in determining whether certain communications from a corporate client to counsel are protected by the attorney-client privilege, it is not applicable to those situations concerning the protection of an attorney’s advice given to his corporate client. The latter situation is governed by long-standing, express statutory provisions of this state.

In Upjohn Co. v. United States, 449 U. S. 383, 393 (101 SC 677, 66 LE2d 584), the Supreme Court observed that “if the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” We will apply this philosophy in resolution of this issue to the extent that existing statutory law permits. “A proper application of the privilege . . . requires a bright line in order to reassure attorneys and corporate managers of the secrecy of their communications.” Waldman, Beyond Upjohn: The Attorney-Client Privilege in the Corporate Context, 28 William & Mary Law Rev. 473, 483.

“Our Code recognizes certain privileges, including the attorney-client privilege, and prohibits the evidentiary use of communications protected by the privilege. See OCGA §§ 24-9-21; 24-9-24 and 24-9-25.” Williams v. State, 258 Ga. 281 (5) (368 SE2d 742). “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” (Emphasis supplied.) OCGA § 9-11-26 (b) (1); Morton v. Gardner, 242 Ga. 852, 857 (252 SE2d 413).

It has been said, and not without cause, that “[t]he exact nature of matters within the attorney-client relationship in the Georgia law is in a state of hopeless confusion.” Agnor, Use of Discovery under the Ga. Civil Practice Act (3rd ed.), § 2-20. There are four primary statutes that address the attorney-client privilege, and three of these statutes can be traced directly to the Code of 1860. It has been asserted “[t]hese statutes are at the center of a confusing and indefinite picture of the attorney-client privilege in Georgia.” Milich, The Attorney-Client Privilege: The Common Law & Ga.’s Uncommon Statutes, 5 Ga. State Law Rev. 27, 36. We do not attempt today to unravel this so-called web of confusion, rather we seek to establish a relatively “bright-line” test, consistent with the century-old statutes of this state.

OCGA § 24-9-21 pertinently provides: “There are certain admissions and communications excluded on grounds of public policy. Among these are ... (2) Communications between attorney and client. . . .”

OCGA § 24-9-24 pertinently provides: “Communications to any attorney . . . pending his employment or in anticipation thereof shall never be heard by the court. The attorney shall not disclose the advice or counsel he may give to his client, nor produce or deliver up . . . other papers, except evidences of debt left in his possession by his client. This Code section shall not exclude the attorney as a witness to any facts which may transpire in connection with his employment.” (Emphasis supplied.)

OCGA § 24-9-25 provides statutory direction, not here applicable, regarding when an attorney may testify for or against his client. Although we have no reservations regarding the general legal principles therein expressed, we find the facts of Gilbert v. State, 169 Ga. App. 383 (313 SE2d 107), Buffington v. McClelland, 130 Ga. App. 460 (3) (203 SE2d 575), and Parker v. Wellons, 43 Ga. App. 721 (160 SE 109) distinguishable from this case. Likewise, Clarkson Indus. v. Price, 135 Ga. App. 787 (218 SE2d 921), involving “work product” exception, is distinguishable.

OCGA § 24-9-27 (c) provides: “No party or witness shall be required to make discovery of the advice of his professional advisers or his consultation with them.” (Emphasis supplied.)

It has been suggested that “[t]o the extent these three privilege statutes [OCGA §§ 24-9-21; 24-9-24; 24-9-27] are inconsistent with common law doctrine, the courts can and should ignore them.” Milich, 5 Ga. State Univ. Law Rev., supra at 74. However, these statutes are part of the modernized recodification of Georgia laws and should be accorded full force and effect until revised or revoked. See OCGA §§ 1-1-1; 1-1-2. Moreover, “statutory privileges of counsel are conferred for the benefit of clients and are sacred.” (Emphasis supplied.) 2 EGL, Attorney & Client, § 51, citing Dover v. Harrell, 58 Ga. 572.

In 1887, the Supreme Court in Fire Assn. of Philadelphia v. Fleming, 78 Ga. 733 (3) (3 SE 420), held that “[l]etters written between the attorney and the agent of a corporation, which was his client, containing confidential communications between the two, should not have been forced to be produced for use in evidence against the client.” (Emphasis supplied.) The court also opined that pursuant to Code § 3798, currently OCGA § 24-9-24, a letter from the attorney to the agents of his client containing confidential communications and asking for instructions in reference to the case, was inadmissible against such client. Id. at 738 (6). In Rylee v. Bank of Statham, 7 Ga. App. 489 (1) (a) (67 SE 383), this court held that the contents of a letter written by an attorney to his client were privileged, “in so far as any information or advice communicated by [the attorney] to his client is concerned.” Id. at 492. In Braxley v. State, 17 Ga. App. 196 (86 SE 425), this court, citing Code §§'5785 and 5786 (OCGA §§ 24-9-21; 24-9-24), held that the trial court “should have declined to hear from the client any testimony as to communications or advice imparted to him by his counsel during the relationship” on grounds of public policy. Id. at 203; see Miles v. State, 100 Ga. App. 614, 616 (2) (112 SE2d 237) (recognizing that Code § 38-1102, currently OCGA § 24-9-27 (c), provides that no party shall be required to make discovery as to any matter involving “the advice of his professional advisers or his consultation with them. . . .”) In Campbell v. State, 149 Ga. App. 299 (1) (254 SE2d 389), this court held that “[testimony of a client as to advice given to him by his counsel is incompetent and properly excluded. Communications between attorney and client, except in circumstances not here pertinent, are excluded as a matter of public policy, both in criminal and civil matters.” (Emphasis supplied.) In Associated Grocers Co-Op v. Trust Co., 158 Ga. App. 115, 116-117 (279 SE2d 248), we reiterated the above principles, holding that “[t]he statutes and case law of this state are both in accord that [under the attendant circumstances], testimony of a client as to advice given to him by his counsel is incompetent, and on timely motion, should be excluded. Communications between attorney and client are ‘excluded from consideration of public policy.’ [Cits.] [A]nd this court has held that the privilege applies to communications to the officers and employees of a corporate client as well as to individual clients.” (Emphasis supplied.)

It thus appears that once an attorney-client relationship has been duly established between an attorney and his corporate client that the legal advice confidentially communicated to the authorized agents of the client is by statute protected from discovery, and testimony concerning the content of such advice is inadmissible on grounds of public policy. OCGA §§ 24-9-21; 24-9-24; 24-9-27 (c); see generally cases cited in paragraph above; 97 CJS, Witnesses, § 276 (c) (3). Wisely or not, the statutes make no distinction between legal advice given in regard to specific cases pending and legal advice concerning day-to-day business matters. See generally Taylor v. Taylor, 179 Ga. 691, 693 (177 SE 582). Neither do the statutes distinguish between confidentially communicated legal advice that is requested specifically by the corporate client, nor preventive legal advice that is confidentially provided sua sponte by the lawyer to the authorized agents with whom he regularly deals of his established corporate client. With certain limited exceptions not here relevant, all such legal advice is protected by privilege. See, e.g., for exceptions, Marriott, supra at 502 (3) (b), citing Atlanta Coca-Cola &c. v. Goss, 50 Ga. App. 637, 639 (179 SE 420) (legal advice made for the purpose of furthering a crime, fraud, perjury, or other unlawful end is not protected); In re Grand Jury, 575 FSupp. 777 (D.C. Ga. 1983) (legal advice sought for purpose of committing either tort or crime not protected).

The above-cited statutes, however, do not extend public policy protection to communications made by lawyers to their corporate or individual clients which are not of a confidential nature. Taylor, supra at 693; see Fowler v. Sheridan, 157 Ga. 271, 273-275 (121 SE 308); Burnside v. Terry, 51 Ga. 186. Generally, the confidential nature of a legal opinion will not be destroyed by its exposure to employees within the corporate structure who are authorized, expressly or by business practice, to receive and act thereon. See Assoc. Grocers, supra at 117; State of Mo. v. Adolf, 700 SE2d 886, 889 (CA Mo.); Agnor, supra at 49; 97 CJS, Witnesses § 276 (c) (1); cf. Diversified Indus. v. Meredith, 512 F2d 596, 609 (USCA 8th Cir.) (communication must not be disseminated beyond those persons who need to know its contents).

It further is required that the attorney’s advice must primarily concern legal advice rendered “in the line of his profession.” See Taylor, supra at 693, Atlanta Coca-Cola &c., supra at 639 (1); Diversified Indus., supra at 602. “The privilege does not simply follow an attorney by virtue of his profession.” Agnor, supra at 52. Moreover, “[t]he attorney-client privilege extends only to confidential communications made for the purpose of facilitating the rendition of legal services to the client. [Cit.] Thus, where the attorney acts merely ... as a business adviser [cit.] the privilege is inapplicable.” United States v. Horvath, 731 F2d 557, 561 (USCA 8th Cir.) “[T]he privilege would never be available to allow a corporation to funnel its papers and documents into the hands of its lawyers for custodial purposes and thereby avoid disclosure. . . . [I]t seems well settled that the requisite professional relationship is not established when the client seeks business or personal advice, as opposed to legal assistance.” (Emphasis supplied.) Radiant Burners v. American Gas Assn., 320 F2d 314, 324 (USCA 7th Cir.), cert. den. 375 U. S. 929 (84 SC 380, 11 LE2d 262); see In the Matter of Walsh, 623 F2d 489, 494 (USCA 7th Cir.), cert. den. 449 U. S. 994 (101 SC 531, 66 LE2d 291) (business and other advice not privileged should be distinguished from professional legal services); see also Marriott Corp., supra at 502 (3) (a); see generally 98 ALR2d 241, § 5; 97 CJS, Witnesses, § 280.

Decided June 1, 1989

Rehearing denied June 21, 1989.

Darroch & Obenshain, Robert M. Darroch, Mark A. Barber, for appellant.

Jordan & Bonder, H. Garold Jordan, for appellees.

The burden is upon the corporation to establish that counsel’s advice was privileged legal advice and thus not subject to discovery. See Marriott Corp., supra at 505; Walsh, supra at 494 (10); Diversified Indus., supra at 609 (15). In reaching this determination, the trial court should consider the totality of the circumstances. In addition to the requirement that an attorney-client relationship exists, relevant factors generally include, but are not limited to, the nature and purpose of the communication and how and to whom the communication was made. In the case at bar, we note that certain of the allegedly protected communications from counsel apparently were disseminated using a newsletter format. As use of a newsletter is more consistent with dissemination of routine business advice than with transmittal of confidential legal advice, the totality of the circumstances surrounding these particular communications should be strictly scrutinized.

In certain circumstances, the trial court may desire to conduct an in camera proceeding to assist it in determining whether counsel’s advice constituted privileged legal advice that is not subject to discovery. In camera proceedings are appropriate, for example, “when the underlying facts demonstrating the existence of the privilege may be presented only by revealing the very information [to the court that is] sought to be protected by the privilege.” Walsh, supra at 494, n. 5.

This case is remanded to the trial court for reconsideration of appellee’s motion to compel discovery in a manner consistent with this opinion.

Judgment reversed and case remanded with direction.

Deen, P. J., and Benham, J., concur.


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    A89A0627.
    GALE v. HAYES MICROCOMPUTER PRODUCTS, INC.
    (383 SE2d 590)
   Birdsong, Judge.

Gale, a former employee of Hayes Microcomputer Products, Inc. (Hayes), appeals from the trial court’s grant of Hayes’ motion for summary judgment. She alleges that Hayes unlawfully breached her employment contract, committed fraud, and violated the Employee’s Retirement Income Security Act, 29 USC § 1140 (ERISA). Appellant Gale’s claims all arise from the termination of her employment by Hayes on November 22, 1985.

Gale began her employment with Hayes on April 9, 1984. At that time she was given a letter which advised that her salary was “$5.40 per hour or $216.00 per week,” and the letter also referred to various employee benefit programs provided to Hayes’ employees. The letter did not, however, establish a definite period of employment.

Gale was also given a Non-exempt Employee Handbook. The handbook discussed in detail the employee benefit programs outlined in the letter which Gale received. In particular, the handbook discussed Hayes’ employment policies, the benefits available to employees, including short term and long term disability plans, disciplinary policies, and matters of general information for employees. In addition, the handbook specifically stated that it was not intended to be a binding contract and that it did not limit the employee’s or Hayes’ “right to terminate the employment relationship.”

Following on-the-job injuries, the appellant missed work for extended periods. When she returned to work near the end of one of these periods in November 1985, she was told that her employment was terminated.

Gale originally sought recovery in tort for her injuries in addition to the various claims based upon her termination. In the course of this litigation, she also added an ERISA claim. Gale’s tort claims were disposed of separately and are not part of this appeal. Both parties moved for summary judgment, and the trial court granted judgment to Hayes. This appeal followed. Held:

1. Gale alleges that her employment was terminated in violation of an employment contract and that Hayes also breached the contract by not continuing to pay her short term disability benefits after her termination. For her employment contract, Gale points to the April 9, 1984, letter and to the handbook. Under the facts established, Gale’s relationship with Hayes was an employment at will. She had no right of continued employment and no cause of action was created when her employment was ended. OCGA § 34-7-1; Anderberg v. Ga. Elec. Membership Corp., 175 Ga. App. 14, 15 (332 SE2d 326). Additionally, the employee handbook by its specific terms was not a contract and did not limit Hayes’ right to terminate Gale’s employment. Further, even if the handbook were considered a contract, as it also was for no specific term, it would have been terminable at will. Georgia Ports Auth. v. Rogers, 173 Ga. App. 538 (327 SE2d 511).

Gale has no right to continued short-term disability benefits. She was entitled to receive what the terms of the short-term disability plan provided and the plan called for payments to “employees.” As her status as an employee ended on her termination, she was not entitled to further payments. Runyan V. Economics Lab., 147 Ga. App. 53, 55 (248 SE2d 44). The contrary result reached in Georgia Ports Auth. v. Rogers, supra, was based on the specific language of that plan. No jury question was presented on this issue. Runyan v. Economics Lab., supra. Thus, Gale’s allegations in regard to breach of contract are without merit.

2. Gale’s allegations that she had a confidential relationship with Hayes is without basis in fact or law. Her relationship with Hayes was as an employee to employer, and was not one contemplated by OCGA § 23-2-58. Further, the facts here do not support the creation of a special relationship as found in Capriulo v. Bankers Life Co., 178 Ga. App. 635 (344 SE2d 430). See Cochran v. Murrah, 235 Ga. 304 (219 SE2d 421). Gale has no right to recover on a claim of a special relationship. Bulmer v. Southern Bell Tel. &c. Co., 170 Ga. App. 659 (317 SE2d 893). Gale also is not entitled to recover on the alleged fraud created by her termination purportedly in violation of a promise that she would not be terminated for nonchargable absences. Jacobs v. Ga.-Pacific Corp., 172 Ga. App. 319, 320 (323 SE2d 238). There was no error in granting summary judgment to Hayes.

3. Hayes asserts for the first time on appeal that exclusive jurisdiction over ERISA retaliation claims is in the federal courts. Gale contends, however, that we should not consider this argument because it was not first made in the trial court. Of course, it is well settled that appellate courts generally will not consider allegations raised for the first time on appeal. See Scott v. State, 243 Ga. 233, 234-235 (253 SE2d 698); Cooper v. State, 173 Ga. App. 254, 256 (325 SE2d 877). Conversely, Rule 32 (d) of this court requires us to consider a lack of jurisdiction “whenever and however” the lack of jurisdiction may appear. See Evans v. Davey, 154 Ga. App. 269, 270 (267 SE2d 875). Indeed, “ ‘ “[i]t is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” [Cit.]’ ” Atlantic-Canadian Corp. v. Hammer, Siler &c. Assoc., 167 Ga. App. 257 (1) (306 SE2d 22). Although typically such questions are concerned with a particular case, we find them equally applicable to jurisdiction of the subject matter of a class of cases.

Accordingly, we must first consider whether the exclusive jurisdiction over the subject matter of ERISA retaliation claims is vested in the federal courts for if this contention is accurate, the courts of this state, including this one, would have no jurisdiction. Lack of jurisdiction of the subject matter may not be waived by consent of the parties or otherwise. OCGA § 15-1-2; Hopkins v. Hopkins, 237 Ga. 845, 846 (229 SE2d 751). Gale’s claim that she was fired in retaliation for exercise of an ERISA right is not within the jurisdiction of the courts of this state. Such claims are within the exclusive jurisdiction of the federal courts. 29 USC § 1144 (a); see Kelly v. IBM Corp., 573 FSupp. 366, 370-371 (E.D. Pa. 1983), aff’d mem., 746 F2d 1467 (3d Cir. 1984); Johnson v. Transworld Airlines, 149 Cal. App.3d 518 (196 Cal. Rptr. 896, 900-902); Witkowski v. St. Anne’s Hosp., 113 Ill. App.3d 745 (447 NE2d 1016, 1019-1020). See also Porter v. Buckeye Cellulose Corp., 189 Ga. App. 818 (377 SE2d 901) (physical precedent only). As lack of subject matter jurisdiction is not an appropriate matter for a grant of summary judgment, however, C. W. Matthews &c. Co. v. Capital Ford Truck Sales, 149 Ga. App. 354, 357 (254 SE2d 426); Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615 (208 SE2d 459), the claim must be remanded to the trial court with direction that this claim must be dismissed without prejudice for lack of jurisdiction.

Decided June 6, 1989

Rehearing denied June 21, 1989

Robert M. Goldberg, for appellant.

Powell, Goldstein, Frazer & Murphy, Cary Ichter, William A. Capp, Jerry B. Blackstock, Alston & Bird, W. Terence Walsh, for appellee.

4. Gale’s enumeration of error that her motion for summary judgment was erroneously denied not having been supported in her brief by citation of authority or argument, it is deemed abandoned. Rule 15 (c) (2) of this .Court.

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

Deen, P. J., and Benham, J., concur.


text:
    A89A0670.
    ROBINSON v. THE STATE.
    (383 SE2d 593)
   Birdsong, Judge.

Appellant Bobby Lewis Robinson appeals his conviction for sale of cocaine and sentence.

Lieutenant Harris of the Troup County Sheriff’s Department made a positive in-court identification of appellant as the person who sold him drugs in a local motel. Laboratory analysis confirmed that the drugs tested positive as cocaine. The appellant testified in his own behalf and denied selling drugs to Harris. He testified that he was attending a birthday party for his son, and called alibi witnesses who corroborated his testimony. Held:

Appellant’s sole enumeration of error is that the trial court erred in failing to suppress his pretrial statement to the police.

Appellant objected during an out-of-court hearing to the admission of this statement on the grounds that it was not relevant, that it improperly placed appellant’s character in issue; and, that admission of the statement “would unnecessarily prejudice the minds of the jury . . . even with . . . curative instructions.” Appellant also asserted that he was not provided with the ten-day notice required by Uniform Superior Court Rule 31.1.

During the out-of-court hearing, it was established that Deputy Riggs, after advising appellant of his Miranda rights and obtaining a valid waiver thereof, questioned appellant and obtained an oral statement from him. The trial court ruled that the statement was admissible, and that the other acts of misconduct referred to in the statement did not constitute “a similar transaction.”

During the State’s case in chief, Detective Riggs testified concerning this statement as follows: “[Appellant] told me that he had sold cocaine before but not in 1988 and he told me he had used cocaine and said that he did not sell cocaine . . . concerning this arrest. This arrest was a mistake.” Appellant renewed his objection to the admission of this statement on the grounds it was hearsay and because it “improperly places the defendant’s character in issue. . . .” The trial court overruled these objections.

It is the general rule that “ ‘ “[i]f evidence is relevant and material to an issue in (a) case, it is not inadmissible because it incidentally puts the defendant’s character in issue.” ’ ” Richie v. State, 258 Ga. 361 (3) (369 SE2d 740); accord Stitt v. State, 256 Ga. 155 (1) (345 SE2d 578); Dampier v. State, 245 Ga. 427 (10) (265 SE2d 565); Hudson v. State, 237 Ga. 443, 444 (228 SE2d 834); see also Perez v. State, 182 Ga. App. 628 (3) (356 SE2d 706). It is an equally well-recognized general rule that “ ‘[w]hat is forbidden is the introduction by the state in the first instance of evidence whose sole relevance to the crime charged is that it tends to show that the defendant has bad character.’ ” Johnson v. State, 258 Ga. 506 (3) (371 SE2d 396); Frazier v. State, 257 Ga. 690, 698 (362 SE2d 351).

In this case, the statement contained a reference to prior independent crimes committed by the appellant, specifically, the crimes of cocaine use and prior cocaine sale. These statements did not constitute an integral part of a criminal confession nor was each statement an inseparable part of the total oral statement made to Detective Riggs. Compare generally Stitt, supra at 157 with Florence v. State, 162 Ga. App. 830 (1) (292 SE2d 923). In fact, when the two statements regarding prior offenses are deleted from the statement in question, all that remains is appellant’s strong denial that he committed the charged offense. Thus, the facts of this case are clearly distinguishable from Richie, Stitt, Dampier, Hudson and Perez.

The confession contained in the appellant’s statement, regarding prior use of cocaine, had nothing whatsoever to do with the conduct for which he was on trial (sale of cocaine in 1988). “Indeed, the statement cannot be construed as anything other than a denial of the offenses for which he was on trial. Thus, the only possible evidentiary function which the [confession concerning prior cocaine use] could have served as far as the state was concerned was an impermissible one, i.e., to impugn the appellant’s character before the jury by showing that he was generally prone to criminal conduct.” Florence, supra at 832 (1).

Regarding the confession contained in the appellant’s statement, regarding sale of cocaine on an unknown date prior to 1988, a somewhat different situation arises. In certain circumstances, evidence of independent crimes is admissible “ ‘ “/or the purpose of showing identity, motive, plan, scheme, bent of mind and course of conduct,” ’ ” (emphasis supplied) Williams v. State, 257 Ga. 761, 764, n. 3 (a) (363 SE2d 535), or for “some other rational connection with the offense for which [appellant] is being tried.” Jones v. State, 257 Ga. 753, 757-758, n. 6 (363 SE2d 529); Hamilton v. State, 239 Ga. 72, 75 (235 SE2d 515). “[B]efore evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged that proof of the former tends to prove the latter.” (Emphasis supplied.) Hamilton, supra at 75. Moreover, “ ‘(i)t has long been the rule in Georgia that evidence of an independent crime is never admissible unless the prejudice it creates is outweighed by its relevancy to the issues on trial.’ ” Rainwater v. State, 256 Ga. 271, 272, n. 2 (347 SE2d 586), citing Robinson v. State, 246 Ga. 469, 470 (271 SE2d 786).

In the case sub judice, the trial court in essence ruled that the prior crimes confessed to in appellant’s pretrial statement were not similar in nature to the offense with which he was charged. We are not convinced that a prior sale of a drug identical to the type with which an accused is currently charged with selling is not per ee of sufficient similarity or of sufficient logical connection to comply with the second condition above discussed. However, rendering this point moot is the fact that the confession to prior drug crimes was admitted in evidence without any limiting instructions being given regarding the purpose for which the jury could consider such evidence. (Compare with Johnson, supra at 508 (3), where no error was found in part because an appropriate limiting instruction was given.) Moreover, in the charge to the jury the trial court pertinently instructed that “you will give consideration to this case, taking into consideration all of the evidence . . . and if in doing so you believe, beyond a reasonable doubt, that the defendant is guilty of the offense charged . . . you would be authorized to convict. . . .” (Emphasis supplied.) The introduction in evidence of a prior, undated offense of using cocaine (having no reasonable relevance to sale of cocaine in 1988), the introduction of evidence of a prior, undated sale of cocaine without benefit of a limiting instruction, coupled with a charge to the jury that it will take “into consideration all of the evidence,” created a fair risk that the evidence of these prior drug offenses impugned the appellant’s character by showing that he was generally prone to criminal conduct. Accordingly, we find “that this testimony . . . was so prejudicial that its admission demands reversal.” Merritt v. State, 255 Ga. 459 (2) (339 SE2d 594). Moreover, under these circumstances, any possible relevance which the evidence of an undated, prior cocaine sale might have regarding the sale of cocaine in 1988 is outweighed by the prejudice caused by admitting the evidence of both prior drug offenses, particularly in view of the issue discussed above regarding charges to the jury. Compare with Robinson, supra at 470. Finally, we note that the appellant vigorously contested his guilt with an aggressive alibi defense, under such circumstances, and in light of the posture of the State’s evidence, we cannot say that this error was harmless.

Decided June 6, 1989

Rehearing denied June 21, 1989

Rosenzweig, Kam, Jones & McNabb, Douglas L. Dreyer, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes McCabe, Monique F. Kirby, Assistant District Attorneys, for appellee.

Judgment reversed.

Deen, P. J., and Benham, J., concur.


author: Carley, Chief Judge.

text:
    A89A0671.
    CORLEY v. THE STATE.
    (383 SE2d 586)
   Carley, Chief Judge.

Appellant was charged with two traffic offenses: driving under the influence in violation of former OCGA § 40-6-391 (a) (4); and, disregarding a stop sign in violation of OCGA § 40-6-72 (b). After a jury trial, he was found guilty of both charges. He brings this appeal from the judgments of conviction and sentences that were entered by the trial court on the jury’s guilty verdicts.

1. The trial court’s denial of appellant’s motion for a directed verdict is enumerated as error.

The State’s expert witness could not testify with complete certainty that, at the time that appellant wrecked his car, his blood alcohol level was 0.12 percent or more. However, the evidence did show that, more than an hour after appellant had last driven, his blood alcohol level was 0.20 percent. In addition, two witnesses for the State gave graphic descriptions of appellant’s drunken state. The testimony of these two witnesses was entirely consistent with the description given by the State’s expert witness of the behavior of one having a blood alcohol level in excess of 0.12 percent. After a review of the record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court’s admission of evidence regarding the results of appellant’s blood test is enumerated as error.

Appellant’s initial contention is that “the trial court erred in admitting the results of a blood alcohol test where no proper foundation as to the qualifications of the technician who took the blood had been laid by the State. [Appellant] first raised this issue after the close of the State’s evidence by motion to strike the evidence. No objection was made by [appellant] contemporaneously with the challenged testimony. [Cit.] [Appellant] would excuse the lack of a timely objection because the trial court allowed the State [C]rime [Laboratory witness to testify out of the normal chain of custody order. However, as the grounds of [appellant’s] motion to strike [are] unrelated to the chain of custody issue we cannot agree. The trial court’s exercise of its discretion on the order of witnesses as to the chain of custody in no way extended the appropriate time for objections by [appellant] as to other issues.” McNabb v. State, 180 Ga. App. 723, 724-25 (3) (350 SE2d 314) (1986).

Appellant also contends that the chain of custody for his blood sample was not established. The State offered the testimony of the officer who watched as the blood was taken and who eventually mailed the sample. The State also offered the testimony of the State Crime Laboratory chemist who had received the sample and had analyzed it. The testimony of these two witnesses was sufficient to establish the chain of custody, there being no evidence, but only a bare speculation, of tampering. See Anderson v. State, 247 Ga. 397, 399 (2) (276 SE2d 603) (1981).

3. The failure of the trial court to grant a mistrial is enumerated as error.

Decided June 5, 1989

Rehearing denied June 21, 1989

Virgil L. Brown & Associates, Virgil L. Brown, for appellant.

John T. Newton, Jr., Solicitor, for appellee.

Appellant’s contention is that the trial court, in responding to an objection to the State’s closing argument, expressed an impermissible personal opinion on the credibility of a witness. The record does not support this contention. It shows that the trial court was merely explaining its ruling on the objection. “ ‘ “[Rjemarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” [Cit.]’ ” Faulkner v. State, 186 Ga. App. 879, 880 (2) (368 SE2d 820) (1988). Moreover, shortly after the trial court had made its ruling on the objection, it fully instructed the jurors that they were the sole and exclusive judges of the credibility of the witnesses. In view of this full instruction, the error, if any, was rendered harmless. See Gann v. State, 166 Ga. App. 172, 175 (2) (303 SE2d 510) (1983).

Judgments affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A0701.
    DONALSON v. THE STATE.
    (383 SE2d 588)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of voluntary manslaughter, aggravated assault and being a “peeping Tom.” He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant was arrested pursuant to a warrant. Urging that the magistrate had not been supplied with sufficient probable cause to issue the warrant, appellant filed a pre-trial motion to suppress all evidence, including his inculpatory statement, which had been obtained as the result of his allegedly illegal arrest. The denial of this motion to suppress is enumerated as error.

“ ‘ “ ‘In dealing with probable cause, ... as the very name implies, we deal with probabilities. They are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ [Cit.] There is . . . a great ‘difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search.’ [Cit.] . . . ‘[T]he “reasonable cause” necessary to support an arrest cannot demand the same strictness of proof as the accused’s guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties.’ ” [Cit.] We have no hesitancy in adopting and, indeed, reiterating these principles in connection with appellant’s contentions respecting the showing of probable cause in this case. . . .’ [Cits.]” Baxter v. State, 134 Ga. App. 286, 288-289 (1) (214 SE2d 578) (1975). “ ‘[T]he Fourth Amendment does not by its terms require that probable cause be shown by the affidavit, but that “the judicial officer ... be supplied” with sufficient information to support his independent judgment that probable cause exists for the warrant. [Cit.]’ [Cit.] Here, the record shows that the officer who sought the warrant supplied the issuing magistrate with sufficient information to support a finding, which the magistrate made, that probable cause existed for the issuance of the warrant.” Devier v. State, 253 Ga. 604, 610 (5) (323 SE2d 150) (1984). See also Lewis v. State, 255 Ga. 101 (1) (335 SE2d 560) (1985). It follows that the trial court did not err in denying appellant’s motion to suppress.

2. Appellant further urges that the case against him was “tainted” by the State’s use of a subpoena duces tecum to secure medical records regarding his hospitalization for psychiatric treatment.

Contrary to appellant’s contentions, psychiatric medical records are not absolutely privileged. “The record shall be produced in response to a valid subpoena or order of any court of competent jurisdiction, except for matters privileged under the laws of this [SJtate. . . .” (Emphasis supplied.) OCGA § 37-3-166 (a) (8). While communications between a psychiatrist and his patient are privileged (see OCGA § 24-9-21 (5)), “appellant has not shown that the information made known to the [State] by the [hospital] and used at trial originated as communications from appellant to an attending psychiatrist or his agent. [Cits.]” Johnson v. State, 254 Ga. 591, 597 (7) (331 SE2d 578) (1985). Accordingly, this enumeration of error is without merit.

3. Appellant enumerates as error the admission into evidence of his in-custody statement.

The record shows that a Jackson-Denno hearing was conducted. The evidence adduced at this hearing authorized the trial court to find that appellant’s in-custody statement had been freely and voluntarily made after he had been given the Miranda warnings. Under these circumstances, the statement was properly admitted into evidence for the jury’s consideration. See Hagans v. State, 187 Ga. App. 216, 217 (2) (369 SE2d 536) (1988); Garcia v. State, 187 Ga. App. 166, 167 (2) (369 SE2d 776) (1988); Hart v. State, 185 Ga. App. 141, 142 (3) (363 SE2d 599) (1987).

4. As to the “peeping Tom” charge, appellant enumerates as error the denial of his motion for a directed verdict of acquittal.

Decided June 5, 1989

Rehearing denied June 21, 1989

August F. Siemon III, for appellant.

J. Brown Moseley, District Attorney, for appellee.

“The weight of the evidence and the credibility of witnesses are questions for the trier of fact. [Cit.] A rational trier of fact could find from the evidence adduced at trial proof of [appellant’s] guilt beyond a reasonable doubt of the offense of being a ‘peeping Tom.’ [Cits.]” Banks v. State, 178 Ga. App. 54, 55 (1) (341 SE2d 859) (1986). The trial court did not err in denying the motion for a directed verdict of acquittal.

5. Appellant moved for a change of venue. The denial of this motion is enumerated as error.

“In order to prevail on a motion for change of venue pursuant to OCGA § 17-7-150 (a), a defendant must show ‘(1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible.’ [Cit.] ‘(T)he empanelling of fair and impartial jurors, as demonstrated on voir dire, makes it particularly difficult to show that the setting of the trial was inherently prejudicial.’ [Cit.]. . . Moreover, a trial court’s finding that a defendant can receive a fair trial in the county in which the crime was committed will be upheld unless manifestly erroneous. [Cit.]” Devier v. State, supra at 608-609 (4). We find no basis for holding that the denial of appellant’s motion for a change of venue was manifestly erroneous.

Judgments affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A0752.
    STIRLING v. THE STATE.
    (383 SE2d 595)
   Birdsong, Judge.

This is Alan Stirling’s third appeal pro se on matters relating to his June 1986 indictment for aggravated assault, criminal trespass, and theft by taking. See Stirling v. State, 189 Ga. App. 283 (375 SE2d 302); and an order of record of this court remanding the case for a bond hearing under Birge v. State, 238 Ga. 88 (230 SE2d 895).

The present appeal complains of the trial court’s denial of his motion for discharge and acquittal pursuant to OCGA § 17-7-170, for the failure to grant a speedy trial. Appellant asserts that he demanded a speedy trial soon after he was arrested in California in March 1987.

At a calendar call of trial cases held on October 20, 1986, the DA had announced that he understood Stirling had dismissed his attorney, Moore. Mr. Moore asserted that he did not know of this. A court officer then announced that Stirling himself had called and asked for a continuance because he had discharged Moore, but had been advised he must appear. Thereupon, the appellant not appearing, the State asked for a bench warrant and forfeiture of bond. Appellant then moved to dismiss and quash this warrant because he had been on 24-hour telephone call and nobody had called him.

Thereafter, appellant absconded, and a bench warrant was issued by Cobb Superior Court on January 13, 1987. He was finally located in California in March 1987, and waiving extradition, was returned to Georgia, where he has ever since been in custody. He was arraigned on April 10, 1987; the Cobb trial judge wrote upon the face of the bench warrant: “Defendant has demanded a speedy trial in open court. 4/10/87 [Signature initials] J.O.S.”

A notice to appellant’s bonding company from the superior court clerk stated that the case “has been scheduled for trial during the week of 05/11/87 at 09:30 a.m. in Courtroom C, 6th floor, Cobb Superior Court Building. . . . FAILURE TO APPEAR WILL RESULT IN THE ISSUANCE OF A BENCH WARRANT FOR YOUR ARREST. SIGNED AND MAILED 05/04/87.” (Emphasis supplied.) On that named day (May 4, 1987) an attorney, Berry, made an appearance as counsel for Stirling, but not for trial. Berry immediately (May 4, 1987) started discovery proceedings, including a motion on May 5 for in camera Brady proceedings.

On May 12, 1987, the trial court, by consent of the DA and attorney Berry, ordered the case “continued,” because of a potential conflict of interest raised by the victim against attorney Berry. In that order of continuance, the case was set for trial on June 15, 1987. The clerk again on June 2 gave notice of this second trial date. Attorney Berry then on June 11 requested a leave of absence from June 14 to June 19, which was granted. The next day, on June 12, Stirling hired another attorney upon “the State Bar of Georgia’s opinion that Mr. Berry has a conflict of interest. ...”

This third attorney, Celia, requested a continuance for time to prepare, requesting the trial court reset the case “on the next available jury calendar.” This motion for continuance was granted on June 22, and the case was re-set for jury trial on July 13, 1987. However, appellant Stirling relieved attorney Celia, and vigorously asserted by a handwritten pleading filed June 26, that no attorney had ever been authorized to seek a continuance of his case, and that “[t]his Defendant’s trial preparation was completed and ready for trial at all times previous [hereto].” He stated further that the attorney’s “refusal to consult with clients cannot be allowed to impede these court proceedings”; and demanded a trial by jury.

Thereafter, beginning July 17, 1987, appellant pro se began to assert his right to discharge and acquittal under OCGA § 17-7-170, for denial of speedy trial. He asserted by brief that he had been incarcerated in Cobb County since March 26, 1987, and had been excluded from all courtroom proceedings; that his ability to defend was “substantially eroded” during all this time, which included a painful and emotional divorce, the disappearance of his minor children, and the diminishment of family resources until October 1986, when their personal property was sold at auction. He referred to “the inadvertent . . . continuance requested by defendant’s ex attorney, [Celia].”

His motion to acquit was based on all these proceedings, and the fact that he was “not tried at the term when demand was made, or at the next regular succeeding term [although] there were juries impaneled and qualified to try him.”

In short, he contends that following his April 4, 1987, oral demand for speedy trial noted on the bench warrant, others had hindered and hampered his speedy trial although he himself was always ready to be tried.

It must be noted that on August 5, 1987, the trial court heard at length the appellant’s motions concerning bond, lie detector stipulations, and other matters. These matters being disposed, the trial court finally stated that there were 42 jurors waiting outside, and queried whether Stirling was ready to go to trial. He stated that he was not ready. At this point, the State asked the demand for speedy trial be set aside and vacated as having been waived, since the defendant had asked (in effect) for a continuance. The trial court stated that it had specially set all Stirling’s matters for hearing during the middle of the week, and “I have made no secret all week of the fact that I was going to give you a speedy trial. You knew that’s why we were here today.” The defendant replied that it was more difficult for him to handle the proceedings “at a handwritten pace . . . [and w]e have these other things to deal with, and there is going to be an appeal on your earlier ruling.” The trial court noted, nevertheless, that with no appeal pending, it still had jurisdiction of the defendant’s case, and was offering him now the speedy trial he had demanded. The defendant replied that he was so tired he was about to fall out of his chair, for he had been up since 5:30 a.m. and (in jail) had to sit in the “bullpen” and then in the “sweatbox”; and he said: “I don’t think we should work with that jury this evening ... we should get back some of the other people that are still on the record, and my mental condition in the state of exhaustion is not sufficient to run the next part of the trial anyway.”

Whereupon, the trial court dismissed the refiled demand for speedy trial, and on July 31, 1987, ordered and found: “(1) The Defendant filed his Demand for Speedy Trial in the wrong Court. . . . (2) The Demand for Speedy Trial was made out of term without special permission of the Court. ... (3) The Demand for Speedy Trial does not refer to the Georgia Statute, OCGA § 17-7-170. ... (4) The Demand for Speedy Trial does not use language which reasonably would put its reader on notice that the Defendant is relying on the two term discharge provision of OCGA § 17-7-170. ... (5) The Defendant did not properly serve the District Attorney’s Office with the Demand for Speedy Trial.” Held:

Decided June 6, 1989

Rehearing denied June 21, 1989

Whatever reason the trial court ascribed to his denial of discharge and acquittal for failure to grant speedy trial, the procedural facts we have stated leave no doubt that Stirling did not want a speedy trial but, instead, did everything he could to avoid one. He blames the confusions from June 1986 until August 1987, upon others, but the facts are all too clear. He discharged one attorney in October 1986, and fled; and after being brought back, he orally made a demand for speedy trial. Thereafter, he discharged two more attorneys and took advantage of other confusions while three times from May 1987 until August, his case was in fact placed upon the calendar and called for trial. The first time (May 4, 1987), an attorney suddenly appeared; and then, when the case was set for trial again (on June 15) that counsel dissolved; and then, when the case was set a third time, appellant discharged his third attorney and asserted that all the continuances sought theretofore had been unauthorized.

The record shows differently. We must presume that Stirling’s different counsel acted on his behalf and request, and in any case he hired a new one each time a trial date approached. It is abundantly clear the trial court provided appellant with three opportunities for a speedy trial, but each time the appellant feinted, and finally, the third time, when he was blocked, he simply said he was not ready because it was too difficult for him to do alone. He does not show here why he had no attorney then, and according to the record itself, no pauper’s affidavit has been filed.

We find as a matter of law, and the trial court correctly held, that appellant had waived any proper demand for speedy trial by his continued inactions, and certainly by his having affirmatively declined a trial the third time, in August 1987, while 42 jurors awaited. As to waiver generally see State v. McNeil, 176 Ga. App. 323 (335 SE2d 728); Huckeba v. State, 157 Ga. App. 795 (278 SE2d 703).

Judgment affirmed.

Deen, P. J., and Benham, J., concur.

Alan Stirling, pro se.

Thomas J. Charron, District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A89A0944.
    CHAMPION v. THE STATE.
    (383 SE2d 565)
   McMurray, Presiding Judge.

Defendant Joseph Michael Champion appeals his conviction of the offense of burglary. Held:

1. Defendant’s fourth enumeration of error raises the sufficiency of the evidence. Viewed in the light most favorable to the verdict, the evidence at trial shows that: Witness Souther’s family owned and rented several mobile homes located near her house. One of the mobile homes was rented by the victim, Johnson. On January 25, 1988, at approximately 7:30 p.m. Souther had started down her driveway when she saw a pickup truck pulling out of the driveway leading from two of the mobile homes including the one occupied by Johnson. The truck was loaded with furniture as though someone was moving and Souther was concerned as to what was going on. Souther followed the truck and memorized the tag number. After pausing to write the tag number down, Souther drove to the mobile home rented by Johnson where she found the door open and observed that several household furnishings she had noticed there previously were gone. Souther called the Sheriff’s office and talked to Sergeant Lowe. Lowe proceeded to the mobile home where he found evidence of a forced entry. Souther gave the tag number she had written down to Lowe and Lowe ran a computer check on the tag number. The computer check produced the names of Colleen C. and J. Michael Champion as owners of a 1986 Toyota pickup truck, along with a Kennesaw, Georgia address. While defendant’s wife resided at the Kennesaw address, information was obtained that defendant was living with a girl friend in Cartersville.

On January 30, 1986, the pickup truck was located at the Car-tersville address and a surveillance established. When defendant arrived he was placed under arrest. During a subsequent search, binoculars and a cassette tape box belonging to the victim Johnson and taken in the burglary were found in defendant’s pickup truck.

Defendant Champion presented a defense of alibi by his own and others’ testimony. However, the jury was “not bound to accept the evidence introduced of alibi as true; the jury determines the credibility of the witnesses and weight to be given their testimony. OCGA § 24-9-80; Armour v. State, 154 Ga. App. 740 (270 SE2d 22) (1980).” Bragg v. State, 175 Ga. App. 640 (1), 642 (334 SE2d 184).

Decided May 17, 1989

Rehearing denied June 21, 1989.

William W. Woody, for appellant.

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

“When property alleged to be stolen is proven to be stolen property and the crime charged has been committed by someone, the recent unexplained possession of the stolen property by a defendant is a circumstance from which guilt may be inferred. From this it may be inferred that the defendant charged committed the theft proven. This being so, no further proof, circumstantial or direct, showing that the defendant committed the burglary is necessary for conviction. Atkins v. State, 155 Ga. App. 390, 391 (271 SE2d 35) (1980); Rakestraw v. State, 155 Ga. App. 563, 564, 565 (271 SE2d 696) (1980). Accord Nash v. State, 166 Ga. App. 533, 535 (304 SE2d 727) (1983).” Collins v. State, 176 Ga. App. 634, 635 (1), 636 (337 SE2d 415). Our review of the transcript reveals ample evidence from which any rational trier of fact could find beyond a reasonable doubt that defendant was guilty of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Wright v. State, 189 Ga. App. 441, 444 (2) (375 SE2d 895).

2. In his first enumeration, defendant enumerates as error the admission into evidence of the testimony of Sergeant Lowe as to the tag number of the vehicle seen by Souther at the scene of the crime. Defendant argues that the evidence was plainly hearsay and that his presence at the crime scene was established solely by hearsay evidence. This enumeration of error is without merit since any hearsay concerns were satisfied by Souther’s presence at the trial and availability for cross-examination. Cuzzort v. State, 254 Ga. 745 (334 SE2d 661).

3. Defendant’s remaining enumerations of error contend the trial court erred in refusing to give his requested Charge Nos. 1 and 3. We find that the trial court did not err in refusing to give these requested charges since the charge given substantially covers the same principles of law. Jefferson v. State, 256 Ga. 821, 825 (5) (353 SE2d 468).

Defendant’s requested Charge No. 1 was adequately covered by the trial court’s inclusion of charges on burden of proof and reasonable doubt. The inclusion in the charge given of the language of OCGA § 24-4-6 adequately covered the principles set forth in defendant’s requested Charge No. 3 which stated that where all the facts and circumstances of the case and all reasonable deductions therefrom, present two equal theories, one of guilt and the other of innocence, then the jury must acquit the accused. Bearden v. State, 163 Ga. App. 434 (3), 435 (294 SE2d 667).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.