author: Birdsong, Presiding Judge.

text:
    A96A1664.
    THE STATE v. KAMPPLAIN.
    (477 SE2d 143)
   Birdsong, Presiding Judge.

On November 3, 1994, appellee/defendant Rickey Allen Kampplain a/k/a Ricky Allen Kampplain and Rick Allen Kampplain was stopped while driving a motor vehicle. He was given an implied consent warning and submitted to a breath test at the request of the police. Although a new Intoxilizer 5000 was present at the police station and certified operators were present, the police could not get the machine to operate properly; therefore, appellee was tested on an Intoximeter 3000, which did not have the Taguchi cell attached.

Appellee subsequently was charged with DUI, and he thereafter filed a motion to suppress the intoximeter test results. The parties stipulated to the facts relevant to the suppression motion, including the fact that the State could not produce a certificate of breath-testing instrument inspection in accordance with the current requirements of OCGA § 40-6-392. These pertinent statutory provisions require an express certification that the testing machine is “in good working order” and that “all its electronic and operating components prescribed by its manufacturer [are] properly attached.” OCGA § 40-6-392 (a) (1) (A) and (f). After hearing argument of counsel, the trial court granted the motion to suppress the intoximeter results.

The State appeals from the order of the superior court suppressing the results of a breath test administered to appellant on the Intoximeter 3000. The motion to suppress was based on the State’s failure to produce the inspection certificate required by OCGA § 40-6-392 (a) (1) (A) and (f) and on the alleged failure of the police to provide appellee with the opportunity to obtain an additional test pursuant to his request. However, in view of the ruling of the trial court granting the suppression motion after the first issue was addressed and argued, witnesses were not called to testify regarding the latter issue.

The State’s sole enumeration of error is that the trial court erred when it suppressed the breath test results. Specifically, the State contends the trial court erred in concluding that OCGA § 40-6-392 (a) (1) (A) and (f), which was not enacted until April 21, 1995, required retroactive application and the suppression of the State’s breath test. The issue before us is whether the trial court erred in suppressing the Intoximeter 3000 test results when the State could not obtain proof that this particular machine would meet the statutory foundation requirements of OCGA § 40-6-392 (a) because the machine used for testing was not operated with all the electronic and operating components prescribed by its manufacturer properly attached thereto and in good working order. Held:

OCGA § 40-6-392 (a) in effect provides for the general admissibility of evidence of the amount of alcohol or drug in a person’s blood, urine, breath, or other bodily substance as determined by chemical analysis thereof; however, to be considered valid, the results of such chemical analysis must comply with the provisions of OCGA § 40-6-392 (a) (1) (A). Subsection (a) (1) (A) pertinently provides: “Chemical analysis of the person’s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences . . . shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements” (Emphasis supplied.) OCGA § 40-6-392 (f) further provides: “Each time an approved breath-testing instrument is inspected, the inspector shall prepare a certificate which shall be signed under oath by the inspector and which shall include the following language: ‘This breath-testing instrument (serial no. _) was thoroughly inspected, tested, and standardized by the undersigned on (date_) and all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order.’ When properly prepared and executed, as prescribed in this subsection, the certificate shall, notwithstanding any other provision of law, be self-authenticating, shall be admissible in any court of law, and shall satisfy the pertinent requirements of paragraph (1) of subsection (a) of this Code section and subparagraph (g) (2) (F) of Code Section 40-5-67.1.” (Emphasis supplied.) OCGA § 40-5-67.1 (g) (1) pertinently provides that if a person whose driver’s license is suspended or who is disqualified from operating a commercial motor vehicle shall request a hearing in writing within the prescribed time, the hearing shall be held within 30 days after the Department of Public Safety receives notice of the written request. OCGA § 40-5-67.1 (g) (2), as amended, pertinently provides that the scope of the hearing shall be limited to the following issues: “(F) Whether the test or tests were properly administered by an individual possessing a valid permit issued by the Division of Forensic Sciences . . . on an instrument approved by the Division of Forensic Sciences or a test conducted by the Division of Forensic Sciences, including whether the machine at the time of the test was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order, which shall be required. A copy of the operator’s permit showing that the operator has been trained on the particular type of instrument used and one of the original copies of the test results or, where the test is performed by the Division of Forensic Sciences, a copy of the crime lab report shall satisfy the requirements of this subparagraph.” (Emphasis supplied.)

Except for the statutory provisions of OCGA § 40-6-392 (a) (1) (B), pertaining to the requirement for the State to request “two sequential breath samples” when-breath testing is elected by the State, which provision is not on its face here applicable (see generally the statutory construction provisions of Diefenderfer v. Pierce, 260 Ga. 426, 427 (396 SE2d 227) and progeny), the remaining statutory requirements shall apply to all cases pending at the time the Act was approved by the Governor, that is on April 21, 1995. Ga. L. 1995, p. 1164, § 5 and Editor’s notes, OCGA § 40-6-392, Title 40, p. 148. “The pláin and unequivocal language of Section 5 of the April 1995 act makes the act retroactively applicable to all pending cases.” State v. Hunter, 221 Ga. App. 837, 838 (1) (473 SE2d 192) (whole court); see State v. Martin, 266 Ga. 244 (466 SE2d 216). As stated in the concurring opinion in Hunter, supra, only the General Assembly can correct this undesirable result. To the extent that the State asserts that the certification requirements of OCGA § 40-6-392 (a) (1) (A) and (f) do not apply retroactively to all cases pending on April 21, 1995, it is mistaken. Hunter, supra. We will not reverse the correct ruling of the trial court regardless of the reason, if any given therefor. Krebsbach v. State, 209 Ga. App. 474 (1) (433 SE2d 649).

We do not here reach the issue whether in each and every case where the statutory certificate has not been provided, including situations where no certificate is provided but the machine had all the required components attached, the result of the chemical analysis test is automatically excluded from evidence. Evidence exclusion is an extreme sanction and not one favored as a matter of course in the law. Suffice it to note an examination of OCGA § 40-6-392 (f) reveals that, notwithstanding any other provision of law, the required certificate when properly prepared and executed shall be admissible in court to satisfy the pertinent requirements of both OCGA § 40-6-392 (a) (1) and of OCGA § 40-5-67.1 (g) (2) (F). This provision reflects that the certificate requirement primarily is an administrative and evidentiary procedure designed to relieve the State from the time-consuming and costly burden of having to produce live witnesses and numerous authenticated business records merely to establish that there has been compliance with all the foundation requirements of subsections (a) and (f) of OCGA § 40-6-392. In this case, however, the State cannot establish by other admissible evidence that these statutory foundation requirements were met, and therefore the trial court properly suppressed the breath test results. Moreover, nothing in this opinion is intended to preclude the State from proving a DUI offense by other admissible evidence. See, e.g., Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737).

Decided September 27, 1996.

T. Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellant.

Perrotta & Associates, Gerard P. Verzaal, for appellee.

Judgment affirmed.

Beasley, C. J, and Blackburn, J, concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A96A2150.
    JR. MILLS CONSTRUCTION v. TRICHINOTIS.
    (477 SE2d 141)
   Eldridge, Judge.

Appellant, Jr. Mills Construction filed suit in March 1995 against appellee John Trichinotis in the Magistrate Court of Houston County. Appellant claimed that appellee owed him $1,745.78 toward payment for an additional bedroom he was building onto appellee’s home. Appellee counterclaimed for breach of contract, asserting that appellant had not completed the construction properly and listing specific examples of poor workmanship and related damages. The magistrate dismissed appellant’s suit and found in favor of appellee on the counterclaim, awarding him $1,000 in damages, plus interest.

Appellant appealed to the State Court of Houston County; a mediation conference was held on January 25, 1996. However, prior to the conference, appellee sent a letter to appellant on January 15, 1996, listing additional damages that were caused by appellant’s poor construction and offering a settlement in the amount of $4,500. The settlement was declined, and, at the bench trial on February 29, 1996, appellee attempted to introduce evidence of the additional damages; appellant objected. At the judge’s request, the parties submitted briefs on the admissibility of the new evidence, and the state court determined that, because the trial was de novo, the evidence of additional damages was admissible. The state court then found for appellee on appellant’s complaint and awarded appellee damages in the amount of $1,997 on the counterclaim.

In the only enumeration of error, appellant asserts that the trial court erred in allowing appellee to present evidence of new damages, because appellee did not formally amend his pleadings prior to trial or at trial to incorporate the new claims. However, the evidence relating to additional damages was properly admitted under either of two theories, as outlined below, as long as the ultimate claim for damages does not exceed the jurisdictional limitations of the magistrate court.

Following appellant’s appeal to the state court, but prior to the bench trial, appellee sent a demand letter to appellant regarding additional damages that had been discovered since the original counterclaim was filed. Therefore, under the liberal notice pleading provisions of the Civil Practice Act, OCGA §§ 9-11-8; 9-11-9 (g), appellant had notice that appellee planned to present evidence of additional damages related to the faulty construction that was the focus of the counterclaim. See DeKalb County v. Ga. Paperstock Co., 226 Ga. 369 (174 SE2d 884) (1970). The appellant, therefore, had 45 days to prepare a defense to the new claims and was not prejudiced by the admission of such evidence.

Further, OCGA § 9-11-15 (b) states that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of the evidence would prejudice him in maintaining his action or defense upon the merits. . . .” (Emphasis supplied.) See also Gresham v. White Repair & Contracting Co., 158 Ga. App. 235 (279 SE2d 528) (1981) (holding that “pleadings are deemed automatically amended to conform to the evidence presented at trial”); DeLoach v. Foremost Ins. Co., 147 Ga. App. 124, 125 (248 SE2d 193) (1978).

An appeal to the state or superior court from a lower court “is a de novo investigation. It brings up the whole record from the court below; and all competent evidence shall be admissible on the trial thereof, whether adduced on a former trial or not. Either party is entitled to be heard on the whole merits of the case.” OCGA § 5-3-29; see also Barmore v. Himebaugh, 200 Ga. App. 868, 869 (410 SE2d 46) (1991).

Decided September 27, 1996.

Diane M. Zimmerman, for appellant.

Sonya C. Popken, for appellee.

In the case sub judice, the original counterclaim charged breach of contract and listed damages; the additional damages claimed by appellee directly related to the original counterclaim, and the state court’s verdict in favor of appellee was supported by the additional evidence. When the original claimant/appellant has brought a claim before a tribunal for de novo review, it would be unjust to deny the counterclaimant/appellee an opportunity to present all of the available evidence of damages, particularly those damages that arose out of the same transaction as the underlying claims and that were not readily apparent at the time of the initial adjudication of the claim, as is the case here.

Therefore, under either of these theories, appellee’s letter to appellant served as notice to the appellant and expanded the counterclaim to encompass the additional damages; the evidence was properly admitted.

However, the state and superior courts, on de novo appeals, have only the jurisdiction possessed by the magistrate court, which limits civil claims to $5,000, and cannot enter judgment for more than the jurisdictional limit. OCGA § 15-10-2 (5); Russell v. Flynn, 191 Ga. App. 196, 197 (381 SE2d 142) (1989); Knowles v. Knowles, 125 Ga. App. 642, 645 (1) (188 SE2d 800) (1972). Therefore, even though the appellee, as counterclaimant, was entitled to submit additional evidence of damages to the state court, they were precluded from embellishing their claim to the extent that it would exceed the $5,000 jurisdictional limit. Since appellee presented evidence listing total damages in the amount of $4,554.82, the state court did not err in admitting the additional evidence.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


author: Beasley, Chief Judge.

text:
    A96A0808.
    WALKER v. THE STATE.
    (476 SE2d 801)
   Beasley, Chief Judge.

Walker was convicted of the attempted murder of the Sheriff of Treutlen County. OCGA § 16-5-1. He appeals the denial of his motion for new trial, claiming ineffective assistance of counsel.

Prior to trial, Walker sought a change of venue based on adverse pretrial publicity and the fact that the victim of the alleged crime was a well-known and popular political figure in the small rural community. When the trial began, defense counsel asked the court to defer ruling on the motion until after voir dire examination of prospective jurors. During voir dire, counsel engaged in cursory questioning of the panel concerning whether they had heard anything about the case and formed an opinion of Walker’s guilt as a result. He did not ask any questions concerning their knowledge of or relationship with the sheriff.

Following voir dire, the motion for change of venue was not renewed. After the jury was selected, a juror asked to be excused for medical and employment reasons. She stated she did not think she would be put on the jury because of her friendship with Walker’s family as well as the sheriff. By agreement of counsel, the alternate was substituted, another alternate was selected, and the juror was excused.

The evidence introduced by the State at trial showed that Walker offered to pay Smith to kill the sheriff. Smith informed the sheriff and a GBI investigator of this but refused to participate in any investigation. After another individual came forward with similar information, federal agent Bisnette was brought in to undertake an undercover investigation of Walker.

Bisnette was introduced to Walker on January 6, 1993, as a landscaper who had been discharged from the military for smuggling weapons. Bisnette testified that they did not discuss anything of significance during their first two meetings. Beginning with their third meeting on January 21, Bisnette began recording each conversation. During this meeting, Walker began to talk about guns and silencers, and he discussed a grudge he had against the sheriff arising from a dispute between Walker and the sheriff’s cousin.

After the January 21 meeting, Bisnette met with Walker again on January 27 and February 3, 10, 17, and 18. The tape recordings and transcripts of the January 21 and 27 meetings, and of the February 3, 10, and 17 meetings, were admitted in evidence. Bisnette read portions of each transcript to the jury. The tape recording of the February 18 meeting was admitted in evidence and played.

During the fourth meeting, on January 27, a prearranged traffic stop took place during which the sheriff gave Bisnette a speeding ticket. Afterward, Walker told Bisnette there was a drug dealer in Vidalia who was willing to pay $100,000 to have the sheriff killed. Walker said he did not know where the drug dealer was, and Bisnette asked Walker to find him. Bisnette also asked Walker if he could get some silencers, and Walker said he would try. They discussed the sheriff’s dogs, because of the possibility that such dogs would interfere with someone trying to kill the sheriff.

At their February 3 meeting, Bisnette and Walker discussed at length the killing of the sheriff. Walker suggested two methods, but Bisnette persuaded Walker to pursue a different method to ensure the sheriff’s safety. The latter method involved Walker driving Bisnette to the vicinity of the sheriff’s house, Walker going to a convenience store and telephoning the sheriff so as to lure him out of his house, and Bisnette shooting him.

During their next meeting on February 10, Walker and Bisnette talked further about the killing and engaged in a reconnaissance of the area where the sheriff lived. Walker provided Bisnette with a weapon and two silencers and asked Bisnette if he could obtain a bazooka or grenade launcher in order to shoot the sheriff’s house. When Bisnette asked if he would do this while the sheriff’s wife and child were home, Walker said he would.

On February 17, Bisnette told Walker he had poisoned the sheriff’s dogs, which were actually removed to a kennel. Walker provided Bisnette with a map, they engaged in further reconnaissance of the area surrounding the sheriff’s residence, and they practiced the movements they would make when the killing took place.

Bisnette next met Walker at a truck stop in the early morning hours of February 18. Walker, driving a borrowed vehicle, went to an area close to his own residence and retrieved a silencer. He then drove Bisnette to the vicinity of the sheriff’s house. Walker went to the convenience store and telephoned the sheriff, attempting to lure him out of his house to another location. Walker was arrested immediately after the call. A recording of the conversation was played to the jury.

In the motion for new trial, Walker complained of counsel’s failure to question prospective jurors concerning their knowledge of or relationship with the sheriff. He also complained of counsel’s failure to renew the motion for change of venue after voir dire.

Counsel testified at the extensive hearing on Walker’s motion that he did not question prospective jurors about their knowledge of or relationship with the sheriff, because he assumed that all prospective jurors in the small community knew him. He also testified that, prior to trial, the defense had obtained a list of prospective jurors, investigated them, and determined which ones were acceptable. Counsel’s investigator, who is also Walker’s brother, testified that he was not asked to, and did not, go out and investigate the list of prospective jurors. According to the investigator, counsel solicited his opinion of the people on the list, and he told counsel he only knew some of them. The investigator testified he advised counsel to seek a change of venue because 80 percent of the people in the county voted for the sheriff. Counsel testified he did not move for a change of venue after voir dire because he and Walker decided that Walker would do as well being tried in Treutlen County as in surrounding counties. This testimony was not contradicted by Walker.

Walker’s motion for new trial was denied by the trial court on the ground that he had not carried his burden of showing that any deficient performance by counsel prejudiced his defense by creating “a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional deficiencies.” Waddell v. State, 190 Ga. App. 499 (1) (379 SE2d 592) (1989); see Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). For reasons which follow, we must uphold the trial court’s rejection of Walker’s ineffective assistance claim, as its finding is not clearly erroneous. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990).

First, following voir dire, Walker concurred in the decision not to seek a change of venue. See Johnson v. State, 214 Ga. App. 77 (1) (447 SE2d 74) (1994). Moreover, Walker has made no showing that the jury in this case was in fact not impartial. Compare Watkins v. State, 237 Ga. 678 (229 SE2d 465) (1976), in which the defendant proved by juror affidavits that a fair trial was not had.

Second, at trial, Walker’s defense was entrapment. ''[T]he entrapment defense consists of three elements: ‘ “(1) The idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. (Cits.)” (Cit.)’ [Cit.]” Gibson v. State, 212 Ga. App. 301, 302 (441 SE2d 803) (1994). “ 'There is no entrapment where the agent merely furnishes an opportunity to a defendant who is ready to commit the offense. . . .’ [Cits.]” Byrd v. State, 211 Ga. App. 881 (1) (440 SE2d 764) (1994).

The evidence showed that the idea for the commission of the crime originated with Walker before he ever met Bisnette. The transcripts and tape recording of the conversations between Walker and Bisnette wholly cancel any suggestion that the crime was induced by undue persuasion, incitement, or deceit by Bisnette, or that Walker was not predisposed to commit the crime. The defense made no showing that the tapes and transcripts of Walker and Bisnette’s meetings did not accurately reflect their conversations or that Bisnette somehow managed to entrap Walker during meetings that were not recorded. Bisnette merely furnished Walker an opportunity to kill the sheriff, and Walker eagerly pursued that opportunity because of numerous grudges Walker had against the sheriff. Based on the evidence introduced at trial, there is no reasonable probability that Walker would have been acquitted by any other jury. Johnson v. State, supra at 78.

Judgment affirmed.

Birdsong, P. J, and Senior Appellate Judge Harold R. Banke concur.

Decided September 30, 1996.

Joe H. Thalgott, for appellant.

Ralph M. Walke, District Attorney, Jeffrey J. Connor, Assistant District Attorney, for appellee.


author: Ruffin, Judge.

text:
    A96A1218.
    TWINEHAM v. DANIEL et al.
    (476 SE2d 814)
   Ruffin, Judge.

We granted this discretionary appeal to review the trial court’s order granting Gary Daniel’s traverse to the garnishment action filed by his ex-wife, Barbara Twineham, for alleged arrearages in child support payments. In its order, the trial court reduced Daniel’s monthly child support obligation. Twineham appeals, and for reasons which follow, we reverse.

In 1993, Twineham divorced Daniel, and the court awarded custody of the couple’s two daughters to Twineham. The decree required Daniel to pay Twineham $1,300 per month in child support until the children reached 18, married, died or became fully emancipated. In addition, the decree provided that when Daniel’s obligation terminated as to the first minor child, Daniel’s obligation was reduced to $1,000 per month.

The older child, age 17, moved to Daniel’s residence in February 1995. According to the record, Daniel began reducing his child support payments beginning February 1, 1995. From February 1995 through May 1995, Daniel paid only $500 each month, and from June 1995 through August 1995, Daniel paid $635 each month. Aside from the trial court’s order on the traverse, the record contains no order modifying Daniel’s child support obligations.

Twineham filed a garnishment proceeding against ReMax of Fayette, Inc. to collect the difference in the payments made by Daniel and the amounts due pursuant to the underlying child support judgment. Daniel traversed, claiming he was not obligated to pay Twineham support for the child residing with him. The trial court granted Daniel’s traverse in part and ruled that Daniel owed Twineham only $750 per month in child support for the second child. Based on this figure, the trial court entered judgment for $645, representing the difference between Daniel’s payments from February 1995 and the $750 per month that the court ruled he owed.

1. In this appeal, Twineham contends the trial court erred in interpreting the original child support judgment contrary to OCGA § 19-6-15 and in modifying Daniel’s child support obligation in a garnishment action rather than a petition to modify. We agree.

Decided October 1, 1996.

Bovis, Kyle & Burch, Timothy J. Burson, for appellant.

Bischoff& White, James A. White, Jr., Albert B. Wallace, Stephen B. Wallace II, for appellees.

First, we note that the superior court had jurisdiction to give Daniel credit for voluntary expenditures necessitated by the move of the oldest child to his residence “ ‘if equity would so dictate under the particular circumstances involved, provided that such an allowance would not do an injustice to the (child support payee).’ [Cit.]” Brown v. Dept. of Human Resources, 263 Ga. 53, 54 (1) (428 SE2d 81) (1993). Compare Davis v. Davis, 220 Ga. App. 745, 746 (470 SE2d 268) (1996) (the state court may not consider credit for voluntary expenditures since it lacks equity jurisdiction).

However, Daniel cites no case and we can locate no case permitting the trial court in this instance to reduce Daniel’s child support obligation for the second child, who was not living with him, below the $1,000 amount decreed in the original judgment. “[S]uch a modification must be accomplished by the filing of a petition in superior court pursuant to OCGA § 19-6-18 or § 19-6-19. [Cit.]” Id. “OCGA § 19-6-26 (a) provides that, so long as [Daniel] remains in or is domiciled in this state, the ‘exclusive procedure’ for modifying his child support obligations ‘shall be by a proceeding instituted for such purposes in the superior court of the county in which venue is proper.’ ” Dept. of Human Resources v. Morton, 204 Ga. App. 638, 639 (420 SE2d 89) (1992).

Thus, while principles of equity may well permit the superior court to give Daniel credit for expenditures made on behalf of the child who resided with him, the superior court erred in reducing Daniel’s child support obligation for the second child, who was not living with him, below the $1,000 amount decreed in the original judgment.

Based on the foregoing, we conclude that the trial court erred in reducing Daniel’s child support obligation in its garnishment order. Accordingly, we reverse the trial court’s judgment.

2. Twineham’s motion to strike Daniel’s brief is denied, and her motion for extension of timé to file a reply brief is deemed moot. Daniel’s motion to strike Twineham’s enumerations of error is also denied.

Judgment reversed.

McMurray, R J., and Johnson, J., concur.


author: Blackburn, Judge.

text:
    A96A1430.
    JACKSON v. THE STATE.
    (477 SE2d 28)
   Blackburn, Judge.

Charles Robert Jackson appeals his conviction for speeding and failure to yield to an emergency vehicle.

On September-19, 1995, a Cobb County police officer was driving east on MacLand Road when she met a truck driven by Jackson that appeared to be traveling between 60 arid 65 mph in a 45-mph zone.

The officer made a U-turn and activated both her blue and wig wag lights. She caught up with Jackson’s vehicle at an intersection where businesses with parking areas are located. When Jackson failed to stop at this intersection, the officer gave two short blasts on her siren. Jackson, who is hard of hearing, testified that it was at this point that he first became aware that the officer was following him. Jackson further testified that he then stopped at the next available safe place. According to the officer, however, Jackson did not stop at her signal, but continued for an additional one-half mile, passing various points where he could have safely stopped before eventually stopping. The officer testified that she followed Jackson for approximately 30 seconds before he stopped.

In a bench trial, Jackson was found guilty of speeding and of failure to yield to an emergency vehicle.

1. In his first three enumerations, Jackson asserts that the evidence did not support his conviction for failure to yield to an emergency vehicle. He contends that the evidence was insufficient to demonstrate the elements of the crime charged.

OCGA § 40-6-74 (a) provides: “Upon the immediate approach of an authorized emergency vehicle or a vehicle belonging to a federal, state, or local law enforcement agency making use of an audible signal and visual signals meeting the requirements of Code Section 40-6-6, the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection ¿nd shall stop and remain in such position until the authorized emergency vehicle or law enforcement vehicle has passed, except when otherwise directed by a police officer.”

At trial, the judge commented that the evidence seemed to support a charge of attempting to elude. OCGA § 40-6-395 (a) reads in pertinent part, “[i]t shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle.”

The State prosecuted defendant for his conduct in this incident under OCGA § 40-6-74, operation of vehicles on approach of authorized emergency vehicles, rather than under OCGA § 40-6-395, fleeing or attempting to elude police officer. The State bears the burden of proving the elements of the offense it has elected to charge.

Jackson contends that the State failed to prove that it met the mandates of OCGA § 40-6-6, as required by OCGA § 40-6-74. Pretermitting this question, we note that under the plain language of the statute, a person violates OCGA § 40-6-74 when he fails to yield the right-of-way in order to permit an emergency vehicle to pass. To violate the statute, an individual must obstruct the roadway, thereby preventing an emergency vehicle from proceeding upon its route in pursuit of a fleeing suspect or other emergency.

The evidence is uncontroverted that the officer was pursuing Jackson rather than seeking to pass him. The officer’s stated purpose was to stop Jackson for speeding. Therefore, the State has failed to prove the most fundamental element of the statute charged: that Jackson obstructed the roadway and prevented the officer from passing him. In light of this fact, Jackson’s conviction for failing to yield to an emergency vehicle must be reversed. While the evidence would support a charge that Jackson was attempting to flee from the officer under OCGA § 40-6-395, the defendant was not so charged.

2. Jackson asserts that the trial court erred in finding him guilty of speeding because the radar information contained within his traffic citation did not conform to the evidence presented by the State at trial. Jackson’s citation reflects that this speed was clocked by radar. At trial, the State could not lay a proper foundation for the radar speed check and was forced to rely on the visual estimate of speed made by the officer. See Brown v. State, 204 Ga. App. 629 (420 SE2d 35) (1992) (“[o]pinion testimony of an eyewitness may be used to establish speed, its credibility being for the [factfinder] to determine”).

Without citing any authority, Jackson asserts that Brown should not apply in this case because of his citation’s reference to radar evidence. He contends that he was entitled “to be put on notice that it [was] the intention of the State to use only ‘opinion’ evidence” and that his conviction for speeding should be reversed as “[t]he allegations [made in his citation] were not met by the proof at trial.”

No evidence was introduced at trial which unduly surprised Jackson. He had been charged with speeding by the officer, and her testimony as to his speeding should have been no surprise to him. The difference came not in the evidence that the State used to prove its case, but in the method by which it proved that evidence — the officer’s testimony as opposed to the radar report. This enumeration is without merit.

Decided October 1, 1996.

Greene & Associates, Patrick H. Head, for appellant.

Benjamin F. Smith, Jr., Solicitor, Lawton W. Scott, Barry E. Morgan, Assistant Solicitors, for appellee.

3. Jackson’s final enumeration, that the State failed to prove venue, is without merit in light of Jackson’s own admission that the incident in question occurred within Cobb County.

Judgment affirmed in part and reversed in part.

Beasley, C. J, and Birdsong, P. J., concur.


text:
    A96A1990.
    OWENS v. GEORGIA UNDERWRITING ASSOCIATION.
    (476 SE2d 810)
   Eldridge, Judge.

Katheryn E. Harris borrowed $20,000 from D. Ronald Owens, appellant, to purchase a house from her grandfather’s estate and gave a deed to secure debt for the improved realty at 6750 Ridge-Moore Drive, Doraville, Gwinnett County, on March 19, 1992.

Georgia Underwriting Association, appellee, issued a comprehensive fire and theft homeowners insurance policy on the property with Harris as owner and named insured and appellant as the named insured mortgagee on May 17, 1993, for the coverage period May 18, 1993, through May 18, 1994.

On January 1, 1994, the dwelling was destroyed by fire; on January 11, 1994, Harris was arrested and charged with arson in burning the house. Harris was in debt, was delinquent on the property taxes, which were to be foreclosed that month, and the mortgage payments to appellant were several months in arrears.

On the date of the fire loss, the balance on the mortgage was $20,117.32. Appellant made an insurance loss claim on January 6, 1994. On January 31, 1994, appellant made a demand for payment of the balance due on the mortgage of $20,117.32. Appellant was informed by appellee that so long as Harris could make a claim, then he could not be paid under the terms of the policy unless she waived the right to make such claim. Harris filed no claim or proof of loss for the property during the one-year claims period. After the contractual limitation period had run and after appellant sued appellee for the face amount of the policy, $35,000, appellee paid to appellant the undisputed amount of $12,696.87 on December 26, 1995.

In October 1994, appellant paid Harris $1,300 for her equity of redemption in the lots that the burned dwelling sat upon, although appellant could have foreclosed the mortgage, which was over a year in default. In November 1994, appellant sold the lots to John and Kim Cauble for $10,000. On April 27, 1995, appellant filed with the clerk of the Superior Court of Gwinnett County a satisfaction and cancellation of the deed to secure debt from Harris.

Appellee, upon the expiration of the one-year policy claims period without any claim by Harris, sent to Harris notice that any claims by her were now barred and were denied so that appellant’s claim could be met.

Upon request by appellant, appellee provided him with a copy of the policy. After Harris’s potential claim had become barred under the policy, appellee made an offer to pay appellant. As a condition precedent to payment of the mortgagee under the terms of the policy, appellee demanded that the deed to secure debt be transferred and assigned by appellant; appellant could not carry out this policy condition because he had previously sold the lots and had the deed to secure debt cancelled. Appellee had informed appellant prior to the one-year claim period running that, without a waiver by Harris, his claim as mortgagee could not be settled. Harris repeatedly refused to execute a waiver to allow appellee to pay appellant. Appellee extended the one-year claims period for appellant so that his claim could be made after Harris’s potential claims had become barred.

Since appellant made it impossible to settle under the policy terms by assignment of the deed to secure debt in return for the payment of the loan balance, then appellee offered to pay appellant his economic loss after a setoff for the sales price of the lots and the addition of the taxes and sum paid to Harris to get title; appellant rejected such offer and demanded that the full loan balance without setoff, be paid. Subsequently, appellant sued appellee for the face sum of the insurance of $35,000 on February 28, 1995. After suit was filed, appellee tendered appellant the undisputed sum of $12,696.87, which represented the loan balance plus the sum paid in property taxes to save the property from tax sale plus the sum paid to Harris for her to transfer her title with a setoff of $10,000 for the sale of the lots.

The state court upon motion for summary judgment by appellee granted the motion on May 2, 1996, and appellant appealed.

1. Enumerations of error 1 through 3 raise essentially the same issue that the trial court erred in granting summary judgment based upon the mortgagee’s insurable interest computed by an economic loss analysis.

The insurance policy language regarding insurable interests states that any loss payable will be paid “to the mortgagee and you, as interests appear.” Under policy conditions, it states: “Insurable Interest and Limit of Liability. Even if more than one person has an insurable interest in the property covered, we will not be liable in any one loss: a. for an amount greater than the interest of a person insured under this policy. . . .”

The mortgagee’s interest must be determined as of the date of loss so that the mortgagee receives no more than nor less than is due. Ga. Farm Bureau Mut. Ins. Co. v. Brewer, 202 Ga. App. 127 (413 SE2d 770) (1991); Palmer v. Mitchell County Fed. Sav. &c. Assn., 189 Ga. App. 646 (377 SE2d 4) (1988); Pacific Ins. Co. &c. v. R. L. Kimsey Cotton Co., 114 Ga. App. 411, 415-416 (151 SE2d 541) (1966).

While Brewer, supra, is not on all fours with the case sub judice, it illustrates why an economic loss analysis must be used; because to do otherwise would allow unjust enrichment and an economic windfall by the mortgagee beyond his economic interests that the insurance was to protect and would impose a liability beyond the terms of the insurance agreement that had been bargained for by the insurer and the insured. Under an economic analysis, the mortgagee has been made whole for all of his economic losses at the time of the fire; he cannot stand in a superior position, thereby gaining an unjust enrichment beyond his insurable interest. Thus, the trial court properly offset appellant’s receipts from the sale of the lots, while at the same time increasing appellant’s losses by the cost to protect the interest by paying the delinquent taxes, as well as by the purchase price paid to Harris to obtain free and clear title to the land. Appellant, by his actions, had breached the terms of the contract of insurance by canceling the deed to secure debt and conveying away the land, instead of transferring such interests to appellee in exchange for payment of his loan balance at the time of the fire; the only legal way in which the contract terms could then be carried out was to give the appellee a setoff for what appellant had already received to satisfy his losses. See OCGA § 9-2-4.

In Rice v. State Farm &c. Ins. Co., 208 Ga. App. 166, 171 (2) (430 SE2d 75) (1993), this Court held, with regard to the use of economic loss analysis to reduce the amount of recovery, “the trial court’s entry of judgment was consistent with the general legal policy in this state prohibiting windfall and double recovery. Cf. OCGA § 9-2-4; [Brewer,] supra at 129.” See also Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F2d 851 (5th Cir. 1979).

The term in insurance policies “as interest may appear” has been construed by this Court to limit insurance claims to the actual interest held at the time of loss. See Simmons v. American Security Ins. Co., 107 Ga. App. 364 (130 SE2d 351) (1963); Ga. Cas. &c. Co. v. Pincus, 89 Ga. App. 836 (1) (81 SE2d 527) (1954); Johnson v. Gen. Exchange Ins. Corp., 49 Ga. App. 780 (176 SE 840) (1934); Simon v. Mechanics Ins. Co. &c., 31 Ga. App. 137, 139 (1) (121 SE 342) (1923).

The trial court did not err in using an economic loss analysis or in granting summary judgment.

2. The fourth enumeration of error is that the trial court erred in calculating the setoff and by not considering appellant’s accrued interest.

As held in Division 1, loss becomes fixed at the time of the casualty, so that appellant’s subsequently accrued interest on the note may be a liability of the debtor, Harris, at the time of the judgment, but was not a proper claim under the terms of the policy coverage.

The case sub judice falls outside the ambit of the Unfair Claims Act, OCGA §§ 33-6-30; 33-6-37.

The trial court properly calculated that the sum due appellant under the policy was $12,696.87, after appropriate additions and set-off.

3. The fifth enumeration of error is that the trial court erred in overruling appellant’s objection to the admission by the trial court of an uncertified copy of a “standard fire policy.”

The Administrative Procedure Act, OCGA § 50-13-1 et seq., applies to the Insurance Commissioner, because OCGA § 50-13-2 neither expressly exempts the office nor exempts the subject matter. Under OCGA §§ 50-13-3 through 50-13-5 all rules and regulations promulgated by such office, including approved insurance policy forms, must be filed of record with the Secretary of State. OCGA § 50-13-6. The Secretary of State shall publish such compilation of rules and regulation for public use. OCGA § 50-13-7. Any court can take judicial notice of the rules and regulations of the executive branch that have been filed with the Secretary of State after adoption under the Administrative Procedure Act. OCGA § 50-13-8; see Dix v. State, 156 Ga. App. 868 (275 SE2d 807) (1981).

The “standard fire policy” has been adapted as a rule under the Rules of Comptroller General, Insurance Department, 120-2-19-.01, and published by the Secretary of State in the Registry of the Rules and Regulations of the State of Georgia. Therefore, the trial court could take judicial notice of the “standard fire policy” without having a certified copy introduced into evidence.

Notwithstanding the above, there is no indication that the trial court relied upon the “standard fire policy” but instead relied upon the actual policy put into evidence by both parties. There is no evidence that the actual policy deviated from the “standard fire policy.”

When a movant for summary judgment pierces the pleadings of the respondent as to an essential element by showing its absence, the respondent has shifted to him the burden of coming forward with some evidence on the issue so as to put in dispute a material fact as an issue for jury determination or to have the issue decided as a matter of law. See Lau’s Corp. v. Haskins, 261 Ga. 491, 493 (2), 494 (405 SE2d 474) (1991); Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981); Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442) (1962). Appellant failed to come forward with any evidence to show that there was any deviation between the actual policy and the “standard fire policy” when the burden of coming forward with the evidence shifted to him. The trial court did not err in finding on this issue that appellant failed to carry his burden of producing evidence.

4. The sixth enumeration of error is that the trial court erred in finding as a matter of law that there had been no bad faith which would authorize the award of penalties and attorney fees.

In Colonial Life &c. Ins. Co. v. McClain, 243 Ga. 263, 264-265 (253 SE2d 745) (1979), the Supreme Court held: “The standard for reviewing any judgment is whether the evidence is sufficient to support the verdict. Under the rule announced in [Interstate Life &c. Ins. Co. v. Williamson, 220 Ga. 323 (138 SE2d 668) (1964)] and [Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 765 (12 SE 18) (1890)] the insurer’s defense must be evaluated because if there was ‘reasonable and probable cause to make it’ an award for damages and attorney fees for bad faith is not authorized. Not every defense bars a finding of bad faith. It is a defense which raises a reasonable question of law or a reasonable issue of fact though not accepted by the trial court or jury. . . . The proper rule is that the judgment should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer.” See also Rice v. State Farm &c. Co., supra.

Appellant, in response to the motion for summary judgment, failed to produce evidence which would raise a material issue of fact that appellee’s failure to pay was either frivolous or unfounded. In fact, appellant’s claim that he stood in the shoes of the named insured and was entitled to the face amount of the policy without a transfer and assignment of the claims of the insured was sufficient reason to defend without the issue of appellee’s right to a setoff for the sale of the lots contrary to the terms of the policy, thereby requiring the mortgagee to transfer and assign any interest to appellee in return for payment of the loan balance at the time of loss. Appellant’s assertion that interest accrued after the fire would be part of his loss also provided a reasonable basis for defense. The trial court did not err in granting summary judgment on this issue as well.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.

Decided October 1, 1996.

Phillip N. Lavender, for appellant.

Swift, Currie, McGhee & Hiers, Michael H. Schroder, MaryBeth V. Gibson, for appellee.


text:
    A96A2126.
    HAWKINS v. THE STATE.
    (476 SE2d 803)
   Eldridge, Judge.

Hawkins appeals from a jury’s verdict and his subsequent sentence on charges of driving under the influence of alcohol to the extent that it was less safe for him to drive, OCGA § 40-6-391 (a) (1), and failure to maintain a lane, OCGA § 40-6-48; appellant was acquitted of an additional charge of driving with an unlawful alcohol concentration, OCGA § 40-6-391 (a) (4).

Viewed in favor of the verdict, on Thursday, March 16, 1995, appellant, a resident of Florida, attended a business dinner reception in downtown Atlanta at which he drank alcohol before, during, and after dinner. At about 9:15 p.m., appellant got into a late model Crown Victoria and attempted to drive to the Wyndham Hotel on Peachtree Street where appellant was staying. Appellant ended up driving westbound on 1-285 near the Peachtree Industrial exit, with his car weaving from one side of the lane to the other. Appellant lost control of the car, crossed over the left traffic lane, and hit the median barricade; the Crown Victoria careened off of the cement barricade and ricocheted back into the traffic lanes, finally coming to a rest backwards in the center lane, having completed a 180 degree turn. A wrecker driver, who fortuitously happened, to be behind appellant, stopped and towed the Crown Victoria to the safety lane on the right-hand side of the roadway; appellant had exited the vehicle before the towing and thereafter asked the driver to forego contacting the police on the driver’s dispatch radio. However, the wrecker driver, who noticed that appellant’s eyes were glassy and that he smelled strongly of alcohol, contacted' the police.

Upon arrival, the police officer noted that appellant was swaying on his feet and that he smelled of alcohol. Appellant was asked to submit to a series of field sobriety tests aiid was told that participation in the tests was voluntary; appellant agreed to the evaluations. The officer then asked the appellant to recite the “ABCs,” as well as perform the “walk and turn” and the “leg lift” evaluations. In addition, the officer conducted a horizontal gaze nystagmus examination which consisted of passing a pen in front of the appellant’s eyes and determining from an observation of the movements of each eye whether there was impairment. Appellant was not able to satisfactorily perform any of the field sobriety evaluations, including the nystagmus test which showed impairment. Thereafter, appellant was arrested, the implied consent warnings were given, and appellant agreed to a breath test; of the two samples blown into the intoximeter, the first registered a .172 and the second a .183. Held:

1. Appellant challenges the admissibility of field sobriety tests in general, and the horizontal gaze nystagmus (HGN) test in particular. Appellant claims that field sobriety tests have not been generally accepted in the scientific community as accurate indicators of impairment, and thus, the lack of expert foundational testimony in the case sub judice made the admission of the tests reversible error. Further, citing this Court’s decision in Manley v. State, 206 Ga. App. 281 (424 SE2d 818) (1992), as well as the line of cases that followed the Manley rationale, appellant asks this Court to “come to grips” with the admissibility of field sobriety tests; appellant asserts that our decisions have failed to clearly address the foundational requirements for the admissibility of these tests, especially in instances such as the case sub judice, where a trial court does not first receive expert testimony as a foundation for admission pursuant to the standards enunciated in Harper v. State, 249 Ga. 519 (292 SE2d 389) (1982). See Sieveking v. State, 220 Ga. App. 218 (469 SE2d 235) (1996); Lorio v. State, 216 Ga. App. 255 (454 SE2d 164) (1995); Hassell v. State, 212 Ga. App. 432 (442 SE2d 261) (1994); Manley, supra at 282; Foster v. State, 204 Ga. App. 632 (420 SE2d 78) (1992).

Under this same enumeration of error, appellant also contends that evidence of field sobriety tests should not be admissible until a foundation is laid regarding the proper administration of the tests and cites Harper, supra, as standing for this principle; moreover, appellant contends that even if a proper foundation is laid pursuant to the standards of Harper, field sobriety tests are still inadmissible as being irrelevant, since the tests do not aid a trier of fact in a quantitative determination of the extent of a driver’s impairment in relation to the ability to drive safely.

A review of the progression of case law cited by appellant has persuaded this Court to make clear our position regarding the foundational requirements for the admissibility of field sobriety tests in general, and the HGN test in particular.

As this Court has repeatedly stated, in determining whether a given scientific principle or technique is competent evidence in a court of law, trial courts have frequently looked to see whether the technique has gained general acceptance in the scientific community; however, recognizing that problems exist in determining admissibility on this basis, including the frequent presence of a wide variation in “expert” opinion, simply “counting heads” in the scientific community has been disproved as a method for determining admissibility. Caldwell v. State, 260 Ga. 278, 285 (393 SE2d 436) (1990); Harper, supra; Jordan v. Ga. Power Co., 219 Ga. App. 690, 693 (466 SE2d 601) (1995); Manley, supra at 281; Mitchell v. State, 200 Ga. App. 146, 149 (407 SE2d 115) (1991). Instead, the determination of the admissibility of a new scientific process lies with the trial court which decides whether the procedure or technique in question has reached a stage of verifiable certainty or “rests upon the laws of nature.” Harper, supra at 526. This determination may be based on an evaluation of expert testimony and/or an evaluation of exhibits, treatises, or opinion from other jurisdictions. Id. The significant point is that a determination as to whether a new technology or procedure should be admissible is based on all of the evidence available to the trial court, of which only one factor is the procedure’s general acceptance in the scientific community.

Further, “[o]nce a [technology or] procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.” (Emphasis supplied.) Id.; Rolader v. State, 202 Ga. App. 134, 142 (413 SE2d 752) (1991). In other words, once a procedure has been utilized for a significant period of time, and expert testimony has been received thereon in case after case, the trial court does not have to keep reinventing the wheel; a once novel technology can and does become commonplace. See Agnor, Ga. Evidence, Matters of Common Knowledge, § 16-2, pp. 475-476. Keeping these principles in mind, we turn to the merits of appellant’s contentions as they relate to the facts of the case sub judice.

With regard to the “ABCs,” “walk and turn,” and “leg lift” field sobriety tests given appellant, the word “tests” is a misnomer; these are physical dexterity exercises that common sense, common experience, and the “laws of nature” show are performed less well after drinking alcohol. The screening of these gross motor skills is hardly the type of “scientific principle or technique” to which Harper referred, and this Court will not hold these physical manifestations of impairment, which could be as obvious to the layperson as to the expert, to such a standard of admissibility. Harper, supra at 524; State v. Pastorini, 222 Ga. App. 316 (474 SE2d 122) (1996); Crawford v. City of Forest Park, 215 Ga. App. 234 (450 SE2d 237) (1994); accord Mendoza v. State, 196 Ga. App. 627, 630 (396 SE2d 576) (1990) (Deen, P. J., concurring specially). Appellant’s contentions regarding the subjective nature of the evaluation of these tests would be fodder for cross-examination, but would not impact on the validity of the tests themselves in detecting impairment. Pastorini, supra. Thus, the trial court in the case sub judice did not err in allowing the officer to testify regarding these field sobriety tests without first requiring expert testimony as a foundation for admission.

The HGN test about which appellant complains herein is based on the well-known and medically accepted principle that nystagmus can be caused by the ingestion of alcohol: “Jerk nystagmus ... is characterized by a slow drift, usually away from the direction of gaze, followed by a quick jerk or recovery in the direction of gaze. A motor disorder, it may be congenital or due to a variety of conditions affecting the brain, including ingestion of drugs such as alcohol and barbiturates. . . .” The Merck Manual of Diagnosis and Therapy, p. 1980 (14th-ed. 1982). For over 20 years, the relationship between nystagmus and alcohol has been recognized by highway safety agencies as a tool to detect those illegally driving under the influence of alcohol. Burns & Moskowitz, Psychophysical Tests for DWI Arrest, U. S. Department of Transportation, Rep. No. DOT-HS-802-424 (1977). Further, the National Highway Traffic Safety Administration (NHTSA) has endorsed the HGN test as the most sensitive in determining alcohol impairment. Schweitz & Snyder, Field Evaluation of a Behavioral Test Battery for DWI, U. S. Department of Transportation, Rep. No. DOT-HS-806-475 (1983); see also Turkula, Drug and Alcohol Testing, § 6.06, pp. 6-12-6-14. HGN testing has been used by law enforcement in each of the 50 states. Seelmeyer, Nystagmus, A Valid DUI Test, Law and Order (July 1985), p. 29. Even the nation’s premier reference manual for the defense of DUI cases recognizes the “strong correlation” between the ingestion of alcohol and the presence of nystagmus. Erwin, Defense of Drunk Driving Cases (3rd ed. 1985), § 8.15A [3]. The characteristics', theory, and scientific acceptability of HGN testing in relation to DUI cases has been discussed in numerous articles and in numerous judicial opinions. See particularly State v. Superior Court, 718 P2d 171, appendices A & B 182-184 (Ariz. 1986); State v. Nagel, 506 NE2d 285 (Ohio App. 1986); see also, e.g., Barnes, The Effects of Ethyl Alcohol on Visual Pursuit and Suppression of the Vestibulo-Ocular Reflex, 406 ACTA Otolaryngol Supp., p. 161 (Sweden 1984) (ethyl alcohol disrupted visual pursuit eye movement by increasing number of nystagmic “catch-up saccades”); Goldberg, Effects and After-Effects of Alcohol, Tranquilizers and Fatigue on Ocular Phenomena, Alcohol and Road Traffic, p. 123 (1963) (of different types of nystagmus, alcohol gaze nystagmus is the most easily observed); Zyo, Medico-Legal and Psychiatric Studies on the Alcoholic Intoxicated Offender, 30 Japanese J. of Legal Medicine, No. 3 (1976), p. 169 (recommends use of nystagmus test to determine somatic and mental symptoms of alcohol intoxication, as well as blood alcohol content).

Moreover, a review of the arguments and authority provided by appellant for his assertions regarding the acceptance, or lack thereof, of HGN testing in the scientific community shows that appellant’s sources are concerned with the proper administration of the HGN test and the possibly subjective analysis of the results of the test by law enforcement; the arguments and authority provided by appellant demonstrate no disagreement in the scientific community as to the ability of the HGN test, itself, to detect impairment. Clearly HGN testing, although far from a complex procedure, may be subject to human error in its administration or interpretation; however, such potential for error does not impact on the validity of the HGN test; “[n]o procedures are infallible.” Caldwell, supra at 287 (1) (c); Lattarulo v. State, 261 Ga. 124, 126 (401 SE2d 516) (1991). “An accused may always introduce evidence of the possibility of error. ... Such evidence would relate to the weight rather than the admissibility.” Id.

Therefore, we hold that the HGN test is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community and is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol. Further, evidence of HGN testing has been accepted in a substantial number of Georgia courts for a substantial numbers of years, e.g., Shipman v. State, 221 Ga. App. 160 (471 SE2d 225) (1996); Sieveking, supra at 219; Reagin v. State, 218 Ga. App. 733 (463 SE2d 39) (1995); Lorio, supra at 255; Hassell, supra at 435; Manley, supra at 282; Rawl v. State, 192 Ga. App. 57 (383 SE2d 903) (1989); and we find that the trial court in the case sub judice did not err in admitting evidence of the HGN test without first requiring expert testimony as a foundation for its admission. Lattarulo, supra at 127; Rolader, supra at 142.

Addressing appellant’s other contentions raised under this enumeration of error, we concur with appellant that field sobriety tests must be administered properly under law enforcement guidelines; however, a challenge to the administration of the tests is not the same as a challenge to the foundation for admission of the tests pursuant to Harper, supra. Compare Caldwell, supra at 286 (DNA admissibility conditioned upon proper administration in light of complex, novel area of science). A challenge to the method by which an admissible test is administered would be the subject of a timely motion or objection at trial and a subsequent analysis thereon by the trial court on a case-by-case basis. See Pastorini, supra; Lattarulo, supra at 127. The burden would be on the party raising objection to show error in the administration of the tests. See generally Hunter v. State, 202 Ga. App. 195, 197 (413 SE2d 526) (1991). In the case sub judice, the officer testified that he had taken at least six courses on the administration of field sobriety tests, which included the HGN test, at the DeKalb County Police Academy. The officer testified that he had given the tests hundreds of times and testified in detail how he administered each field sobriety test to the appellant and how the appellant responded to each test. Appellant has shown no error in the administration of the field sobriety tests, and their admission into evidence was proper. Sieveking, supra at 220.

Appellant also argues that field sobriety tests are irrelevant and, thus, inadmissible. We disagree. Objective manifestations of insobriety, personally observed by the officer, are always relevant. The results of field sobriety tests, in conjunction with other factors including the physical appearance of the driver, red or glassy eyes, an unsteady stance, the presence of the odor of alcohol, the existence of an accident, and any inculpatory statements made by the driver or witnesses, all of which factors were present in the case sub judice, may form an appropriate basis for an evaluation by an officer, and ultimately a jury, as to whether a driver was impaired by alcohol to the extent that it was less safe for him to drive. Parrish v. State, 216 Ga. App. 832, 833 (456 SE2d 283) (1995); In the Interest of C. P. M., 213 Ga. App. 761, 763 (446 SE2d 242) (1994). That these tests may have no specific, quantitative value regarding the extent of a driver’s alcohol impairment would go to the weight to be given the tests and not their admissibility; thus, field sobriety tests are relevant and admissible. Sieveking, supra at 219.

So, in sum and pursuant to appellant’s request, this Court has “come to grips” with the foundational requirements for the admission of field sobriety tests in general, and the HGN test in particular, and we hold that for the reasons outlined herein, field sobriety tests, including the HGN test, may be admitted into evidence without first obtaining expert testimony regarding the scientific validity of the tests. See Harper, supra at 526; Lattarulo, supra at 127.

2. Appellant contends that the trial court improperly restricted his rebuttal of the arresting officer’s testimony; appellant claims that this occurred when the trial court refused to allow appellant’s expert witness to testify that HGN testing is part of the recognized battery of tests under the NHTSA program. Appellant claims that the arresting officer was not certified under NHTSA, and thus, the trial court’s ruling prevented appellant’s expert from casting doubt upon the officer’s ability to properly conduct an HGN test pursuant to NHTSA training. This contention is meritless.

In the case sub judice, the police officer testified that he received his training on HGN testing from the DeKalb County Police Academy; appellant’s expert was unable to testify that the DeKalb County Police Academy did not utilize the NHTSA program in instructing its officers on HGN testing. In fact, appellant’s expert testified that, with regard to his own training in field sobriety testing, including HGN, he had received a “certificate in the same training as they teach at the police academies in every state.” Thus, appellant’s expert could not rebut the arresting officer’s testimony in the manner appellant asserts before this Court, and there was no abuse of the trial court’s discretion in limiting appellant’s examination of his expert to relevant matters. Park v. State, 220 Ga. App. 215, 218 (469 SE2d 353) (1996); Fletcher v. State, 197 Ga. App. 112, 113 (397 SE2d 605) (1990); see Page v. State, 198 Ga. App. 338, 339 (401 SE2d 564) (1991) .

3. Appellant contends that during the jury charge, the trial court repeatedly instructed the jury on certain facets of law, which repetition unduly prejudiced the jury against the appellant. A review of the repeated portions of the jury charge about which appellant complains demonstrates to this Court that appellant finds unduly prejudicial only those legal principles that relate to the crimes for which he was charged and the proof thereof. While appellant may have desired to minimize all reference to the law as it relates to DUI, appellant was charged with two different counts of that offense under OCGA § 40-6-391 (a) (1) and (4); certain principles of law relating to those two counts must necessarily overlap when charging the jury. Thus, reiteration in the charge was appropriate, and “we cannot say that it confused or misled the jury or in any manner resulted in an unfair statement of the law.” Brown v. State, 142 Ga. App. 247, 248 (235 SE2d 671) (1977).

4. Appellant enumerates as error the trial court’s refusal to give defense Request to Charge No. 6. However, it is well settled that where the same principle of law is covered in another instruction, the failure to give the requested charge is not error. Turner v. State, 216 Ga. App. 896 (456 SE2d 241) (1995). In the case sub judice, the record demonstrates that the jury was instructed as to the appropriate legal principles contained in defense Request to Charge No. 6; there was no error. Felker v. State, 252 Ga. 351, 364 (3) (314 SE2d 621) (1984); Pierce v. State, 209 Ga. App. 366 (433 SE2d 641) (1993).

5. Appellant claims as reversible error the trial court’s refusal to give defense Request to Charge No. 15: “You, the jury, may acquit the accused, that is Mr. Hawkins [appellant], since a verdict of not guilty is always within the range of legal verdicts in a criminal case, notwithstanding the evidence.” The trial court correctly refused to charge the jury on the principle of jury nullification. Miller v. State, 260 Ga. 191 (391 SE2d 642) (1990); Briard v. State, 188 Ga. App. 490 (373 SE2d 239) (1988).

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.

Decided October 1, 1996

Spruell & Dubuc, Billy L. Spruell, for appellant.

Ralph T. Bowden, Jr., Solicitor, Michael D. Johnson, Walter C. Howard, Assistant Solicitors, for appellee.

       Snapper, An Assessment of Behavioral Tests to Detect Impaired Drivers, DOT-HS-806-211 (1981); Nowaczyk & Cole, Separating Myth from Fact: A Review of Research on the Field Sobriety Tests, The Champion, p. 43 (August 1995); Nowaczyk & Cole, Field Sobriety Tests: Are They Designed for Failure?, Perceptual and Motor Skills, pp. 79, 99-104 (1994).


author: Judge Harold R. Banke.

text:
    A96A1781.
    MORGAN v. GUARANTY NATIONAL COMPANIES.
    (477 SE2d 26)
   Judge Harold R. Banke.

In this declaratory judgment action, Daniel Morgan appeals the denial of his motions to dismiss and for summary judgment and the grant of summary judgment to Guaranty National Companies (“Guaranty”) on the issue of whether the commercial liability insurance policy it issued to Georgia CSM, Inc. (“CSM”), Morgan’s former employer, covered Morgan’s lawsuit against CSM. Morgan enumerates three errors.

This case arose after Morgan was arrested for non-payment of child support on January 20, 1994. Morgan sued CSM for false imprisonment and conversion, alleging CSM withheld child support payments Morgan arranged to be automatically deducted from his salary but failed to forward the sums to the court.

CSM retained counsel and answered but failed to provide Guaranty with notice of the lawsuit for almost seven months. Guaranty thereafter retained counsel to investigate CSM’s demand for coverage and informed CSM it did so under a full and complete reservation of rights. CSM’s counsel subsequently withdrew and notified Guaranty of this fact.

Several months later, Morgan’s counsel informed Guaranty that he had stipulated the case to the next available trial calendar, but was willing to delay trial to allow adequate time to prepare a defense. Guaranty’s coverage counsel responded that it had been retained to investigate coverage under a full reservation of rights because the extent of coverage, if any, was unclear.

Several weeks later, the case was called for trial in state court. When no representative appeared on CSM’s behalf, the court struck the answer. Only the damages issue was tried to the jury, which awarded Morgan $37,500 in actual damages and $50,000 in punitive damages. Morgan demanded payment from Guaranty, despite the fact that Guaranty was not a party to the action.

Two weeks after the entry of judgment, Guaranty filed the instant declaratory judgment action against Morgan and CSM in superior court, seeking a determination of whether Morgan’s claims against CSM were covered. Morgan moved to dismiss the declaratory judgment action. The superior court denied Morgan’s motion to dismiss, finding Guaranty had not waived its right to challenge coverage.

Guaranty subsequently moved for summary judgment. Morgan also moved for summary judgment, arguing that the declaratory judgment action was untimely. The superior court granted Guaranty’s motion, finding there was no coverage because (1) CSM failed to provide Guaranty timely notice of the state court action; and (2) CSM failed to cooperate in the investigation of the lawsuit. Morgan challenges the denial of his motions and the grant of summary judgment to Guaranty. Held:

1. Guaranty was entitled to file a declaratory judgment action. See Jenkins & Miller, Ga. Auto. Ins. Law (1994 ed.)j §§ 7-4, 14-1. “[A] declaratory judgment action is procedurally available to an insurer seeking resolution of the validity of a claimant’s post-judgment demand” for payment. Standard Guaranty Ins. Co. v. Hulsey, 204 Ga. App. 508, 510 (1) (420 SE2d 54) (1992).

Morgan misconstrues Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215 (231 SE2d 245) (1976). Richmond’s requirement that the insurer immediately seek a declaratory judgment is contingent on the insured’s objection to the reservation of rights agreement. Id. at 219. No such facts are apparent here.

2. We reject Morgan’s contention that the trial court erred in denying his motion to dismiss because there was no justiciable controversy. The question of coverage was a legitimate issue requiring resolution, particularly after Morgan demanded that Guaranty pay his judgment against CSM. Atlanta Cas. Co. v. Fountain, 262 Ga. 16, 17 (413 SE2d 450) (1992); see Hulsey, 204 Ga. App. at 509-510 (1).

3. The trial court properly granted Guaranty’s motion for summary judgment. To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the non-movant, warrant summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

It is undisputed that the insurance policy at issue required CSM to notify Guaranty “as soon as practicable of an occurrence or of an offense which may result in a claim.” Although generally the issue of whether proper notice was provided is a jury question, under certain circumstances “ ‘it may be found that an insured’s delay in giving notice of an accident to his insurer was unjustified and unreasonable. In such event, on a motion for summary judgment, the court may rule on the question as a matter of law.’ [Cit.]” Caldwell v. State Farm Fire &c. Ins. Co., 192 Ga. App. 419, 420-421 (2) (385 SE2d 97) (1989).

Here, CSM has not disputed that it failed to timely comply with the notice provision, a condition precedent to coverage. Nor has CSM offered an explanation for its failure to provide proper notice. Because CSM’s failure to provide timely notice is undisputed, summary judgment was appropriate as a matter of law. See id.

Decided September 19, 1996

Reconsideration denied October 2, 1996

Murray & Stewart, Larry E. Stewart, for appellant.

Freeman & Hawkins, Kevin J. Bahr, Warner S. Fox, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


text:
    A96A1757.
    PIERRE v. THE STATE.
    (476 SE2d 829)
   Judge Harold R. Banke.

Máxime Pierre was convicted of theft by receiving a motor vehicle, obstruction of an officer, armed robbery, kidnapping, and aggravated assault. Following the denial of his motion for new trial, Pierre enumerates two errors.

Pierre and two co-defendants were indicted for several crimes occurring over a three day span. Pierre and one co-defendant, Eugene Hall, were tried together. Pierre faced a six count indictment while Hall faced two additional counts of aggravated assault.

On appeal, the evidence must be viewed in the light most favorable to the verdict, and Pierre no longer enjoys the presumption of innocence. Rigenstrup v. State, 197 Ga. App. 176, 181 (4) (398 SE2d 25) (1990). Viewed in that light, the State’s evidence was as follows. After victim Glenn Williams left Pierre’s apartment, Hall approached him in the parking lot. Hall .pulled a gun, pointed it at the victim, and demanded money. Although Hall pulled the trigger, the gun inexplicably failed to discharge. The victim struggled with Hall and as he attempted to escape, Hall fired four to five times, striking the victim in the wrist. It is undisputed that Pierre did not participate in these crimes and was neither indicted nor tried for them. Shortly after midnight, about 48 hours after the shooting, Pierre and another perpetrator robbed and kidnapped a cabdriver at gunpoint. Less than three hours after the commission of these crimes, Cobb County Police Officer R. C.' Jones pursued a suspected stolen vehicle in which Pierre was an occupant. Pierre and three others leaped from the car and disappeared before Jones could apprehend them. Jones was able to positively identify Pierre. Items belonging to the cabdriver, victim of the armed robbery just a few hours earlier, were discovered in the stolen vehicle. Recovered were the victim’s purse, fanny pack, wallet, and a receipt in her name. When Pierre was arrested a few hours later, the money found in his pants pocket was organized in the same manner as the cabdriver described and matched the approximate amount stolen.

At trial, the cabdriver was unable to identify either of her assailants. She testified that she picked up two male passengers and one got into the front seat and the other seated himself behind her. As she was driving, the man behind her put his left hand around her neck, inserted a gun into her ear and demanded money which she gave him. She heard and felt the click of the gun in her ear, but it failed to fire. The man next to her also brandished a gun and after grabbing her fanny pack, he struck her in the face and head with the gun. One of the occupants of the stolen vehicle, Monroe Owens, made a statement to police which he subsequently retracted at trial, that Pierre and Hall told him they had robbed a taxicab driver. Held:

1. Pierre contends that his trial counsel was ineffective for failing to move to sever Counts 7 and 8 of the indictment which charged only co-defendant Hall with two counts of aggravated assault. See Hayes v. State, 182 Ga. App. 26, 28 (1) (354 SE2d 655) (1987). The trial court’s finding that a defendant has not been denied effective assistance of counsel must be affirmed unless it is clearly erroneous. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990).

In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), Pierre must show not only that his counsel’s performance was deficient, but also that the deficient performance prejudiced his defense. Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). Absent a showing of prejudice, no inquiry need be made into counsel’s alleged deficiency. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995). The test is whether there is a reasonable probability that the jury would have reached a different verdict, absent the error of counsel. Jones v. State, 217 Ga. App. 722, 723-724 (2) (458 SE2d 894) (1995).

The decision whether to file a motion to sever is a matter of trial tactics and the fact that such a motion was not filed does not require a finding that trial counsel was ineffective. Warren, 197 Ga. App. at 24 (1). Further, Pierre must do more than raise the possibility that a separate trial would have given him a better chance of acquittal. Mitchell v. State, 220 Ga. App. 264, 266 (469 SE2d 707) (1996). Pierre must make a clear showing of prejudice and a consequent denial of due process. Id. Pierre has not shown any evidence that the joint trial created confusion concerning the evidence and law applicable to each defendant and that the defendants’ defenses were somehow antagonistic. See id. Moreover, in light of the overwhelming evidence of guilt as to the crimes for which he was convicted, it is highly unlikely that the evidence involving only Hall, affected the verdict. Under these facts, Pierre failed to show the requisite prejudice to his defense to support his claim of ineffective assistance of counsel and failed to show any reasonable probability that the jury would have reached a different result had the counts been severed. Jones, 217 Ga. App. at 723-724.

Decided October 2, 1996.

Carlton C. Carter, for appellant.

Thomas J. Charron, District Attorney, Beth T. Golub, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

2. We reject Pierre’s contention that his convictions for armed robbery and aggravated assault merged. Aggravated assault is not a lesser included offense of armed robbery as a matter of law. Ramsey v. State, 183 Ga. App. 344, 345 (1) (358 SE2d 902) (1987). In this case, the evidence showed that after the completion of the offense of armed robbery, Pierre struck the cabdriver in the head and face with a gun. Nor was the same evidence used to establish both offenses. Kennedy v. State, 199 Ga. App. 803, 804 (3) (406 SE2d 136) (1991).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       Because the jury acquitted co-defendant Hall of the armed robbery, kidnapping and aggravated assault of the cabdriver, the jury must have concluded that it was Pierre who struck her in the head.


text:
    A96A1930.
    HOOD et al. v. GARLAND.
    (476 SE2d 827)
   Beasley, Chief Judge.

Harold Garland filed this complaint for damages against Lovett Hood, Jr., M. Gerard Hood, Phillip Hood, and Zenobia Kennebrew. Plaintiff alleged that he and the Hood defendants entered into a partnership to operate a liquor store but through conspiracy and fraud they deprived him of his partnership interest. Plaintiff sought to recover his partnership interest, which he valued at $28,000, as well as unpaid utility bills, certain personal property, and attorney fees.

Defendants answered and filed a counterclaim seeking to recover damages for fraud and misrepresentation, conversion of personal property, breach of the partnership agreement, attorney fees, and punitive damages.

Based on an arbitration clause in the partnership agreement, defendants moved to stay the litigation and compel plaintiff to submit his claims to arbitration. By consent order, the litigation was stayed pending arbitration, and unrecorded arbitration hearings were held. The arbitrator entered an award finding that the Hood defendants are jointly and severally liable to pay Garland the sum of $24,995.76 and that Kennebrew has no liability. The arbitrator denied the defendants’ counterclaim, as well as the parties’ claims for interest and attorney fees, in their entirety. The award states that it is in full settlement of all claims and counterclaims submitted.

Defendants filed a request for modification of the award on the ground that it “is obviously a calculated figure [and] claimants are entitled to review the calculations with specific findings for correctness and/or possible challenge.” The arbitrator denied the request.

On motions by the plaintiff for confirmation of the award and by the defendants to vacate the award, the trial court entered an order remanding the case to the arbitrator for written clarification supporting the award of damages to plaintiff. The arbitrator stated that he would comply provided certain monies were advanced to defray costs plus a sum still due and owing from the original proceeding. Following another judicial hearing, the court entered an order concluding that to require the arbitrator to comply with defendants’ requests for clarification of the award would be contrary to the rule that the arbitrator is not required to enter written findings of fact in support of an award. The court therefore rescinded its earlier order and confirmed the award.

Defendants contend that the court erred by denying their motion to vacate the arbitration award under OCGA § 9-9-13 (b) (2) and (3). OCGA § 9-9-13 (b) provides that “[t]he award shall be vacated on the application of a party who either participated in the arbitration or was served with a demand for arbitration if the court finds that the rights of that party were prejudiced by: . . . (2) Partiality of an arbitrator appointed as a neutral; (3) An overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made;

1. There is no merit in defendants’ argument that the award should have been vacated under § 9-9-13 (b) (2), as there is no evidence of any partiality.

2. Defendants argue that the award should have been vacated under subsection (b) (3), because it was not a final and definite award upon the subject matter submitted.

As recognized by the trial court, it is undisputed that certain issues not raised in the pleadings were submitted for arbitration (i.e., back pay for plaintiff, whether or not plaintiff was in fact a partner, arguments regarding loans). However, it is obvious from the award that the arbitrator resolved all of the monetary issues and found that plaintiff was a partner. We cannot say that a final and definite award upon the subject matter submitted for arbitration was not made. “[T]he Arbitration Code does not require that an arbitrator enter written findings of fact in support of an award; nor does the Code require an arbitrator to explain the reasoning behind an award.” (Emphasis and footnote omitted.) Greene v. Hundley, 266 Ga. 592, 595 (2) (468 SE2d 350) (1996).

Decided October 2, 1996.

Rodney L. Eason, for appellants.

Don H. Taliaferro, for appellee.

To the extent that defendants challenge the award based on factual assertions in their brief not appearing on the record, the challenges cannot be considered. Johnson v. Bruno’s, Inc., 219 Ga. App. 164 (2) (464 SE2d 259) (1995). Even if defendants’ factual assertions were supported by the record, “a reviewing court is prohibited from weighing the evidence submitted before the arbitrator, regardless of whether the court believes there to be sufficient evidence, or even any evidence, to support the award.” Greene, supra at 596-597 (3).

The court did not err in confirming the award, as none of the statutory grounds for vacating the award has been met. See Greene, supra.

Judgment affirmed.

Birdsong, P. J, and Senior Appellate Judge Harold R. Banke concur.