author: Blackburn, Presiding Judge.

text:
    A00A0465.
    FOSTER v. RAMSEY.
    (536 SE2d 550)
   Blackburn, Presiding Judge.

In this dispute arising out of the disposition of an estate, Samuel Foster, the husband of Sara A. Foster, deceased, appeals the trial court’s grant of summary judgment to Martha Ramsey, the decedent’s daughter and executrix of the estate of Sara A. Foster (Decedent). Foster contends that the trial court erred by resolving the conflicting claims to certain property because questions of fact remain with regard to: (1) whether money held in a bank account in Decedent’s name was property of the estate; (2) whether he is entitled to reimbursement from the estate for certain expenditures; and (3) whether certain jewelry was property of the estate. For the reasons set forth below, we affirm in part and reverse in part.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

BTH Holdings v. BET USA, 239 Ga. App. 759-760 (521 SE2d 670) (1999).

So viewed, the evidence shows that the Last Will & Testament named Ramsey, Decedent’s daughter, as executrix of the estate. Decedent bequeathed any money in her checking accounts to her husband, Samuel Foster. She bequeathed and devised everything else, specifically including her personal property and the money in her savings accounts, to her daughters, Ramsey and Sara Phelps.

Ultimately, Foster filed a complaint in the Superior Court of Dougherty County asserting that the estate was indebted to him for expenditures made on behalf of the estate and that Ramsey was indebted to him for funds withdrawn from a joint account. Ramsey and the estate answered, denied the allegations and asserted a counterclaim alleging, in part, that certain jewelry was property of the estate.

On appeal, Foster enumerates as error the trial court’s finding that the funds in Decedent’s NationsBank account were property of the estate; that he was not entitled to reimbursement; and that the jewelry was property of the estate.

1. The trial court properly determined that Decedent’s savings account with NationsBank was not a joint account with Samuel Foster and, therefore, the money in the account was property of the estate. In support of its motion for summary judgment, the estate presented the affidavit of Jewell Nutter, an assistant vice-president and custodian of records for the bank. Nutter testified that, although the original signature card could not be located, the bank records attached to the affidavit showed that the account was owned solely by Decedent.

Since the estate put forth affirmative evidence establishing ownership of the account, it was incumbent on Foster to put forward some evidence to dispute that fact. OCGA § 9-11-56. Foster offered his own affidavit, stating that he signed an agreement to establish a joint account. Although Foster avers he established a joint account, in the absence of substantiating fact, Foster’s affidavit is self-serving and conclusory and, therefore, insufficient to create an issue for trial. Miller v. Calhoun/Johnson Co., 230 Ga. App. 648, 650 (3) (b) (497 SE2d 397) (1998); Brooks v. Boykin, 194 Ga. App. 854, 856 (3) (392 SE2d 46) (1990). While Foster remonstrates that checks drawn on the account had his name on them, the undisputed evidence from the bank records shows Foster was not a joint owner of the account.

Although [Foster] was authorized to sign checks on this account, [he] was not a joint owner of it, and upon [Sara Foster’s] death the money became a part of [her] estate and title was vested in the administrator or executor thereof for the benefit of heirs and creditors.

Epps v. Epps, 141 Ga. App. 659, 661 (1) (234 SE2d 140) (1977).

2. Shortly after Decedent’s death, Foster withdrew all of the money from the NationsBank savings account and Decedent’s other savings account. A new joint bank account owned by Foster and Ramsey was opened with NationsBank. Subsequently, Ramsey withdrew $10,000 from the joint account and deposited it in an account on behalf of the estate. Foster contends that he is entitled to reimbursement from Ramsey.

Since the estate owned the funds in the NationsBank savings account, Division 1, supra, the trial court properly determined that Foster was not entitled to reimbursement from Ramsey for $10,000 originating from that NationsBank savings account. Furthermore, the trial court properly found that Foster was not entitled to reimbursement for expenses he incurred which were estate obligations (such as maintaining the residence) because he had paid those expenses out of the estate’s money held in the NationsBank account.

3. During the administration of the estate, the parties disputed whether Mrs. Foster owned certain pieces of jewelry such that the pieces were part of the estate. We find that the trial court erred by granting summary judgment to the estate on the ownership of the jewelry because issues of fact remain.

In support of its motion for summary judgment, the estate submitted the affidavit of Nancy Stephenson, Probate Judge of Dougherty County. Judge Stephenson averred that Foster stated at the probate proceedings that he had given the jewelry to Mrs. Foster on special occasions, such as birthdays or holidays. He further stated that, while he intended for Mrs. Foster to use the jewelry, he had not intended for Mrs. Foster to own it. Yet, he did not tell Mrs. Foster that the jewelry was not hers to keep. In response to the motion, Foster relies on his responses to interrogatories in this case, in which he stated that Mrs. Foster knew that the jewelry was only for her use and that none of the jewelry was a gift to her.

As an initial matter, the record does not contain a transcript of the probate proceedings, so under this circumstance, we note that the inconsistent testimony rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986) does not apply to the contradiction between Foster’s own testimony and Judge Stephenson’s testimony of what Foster said. See Bird v. Kmart Corp., 229 Ga. App. 630 (494 SE2d 541) (1997).

Furthermore, to the extent that any of the alleged conversations about the jewelry took place prior to July 1, 1979, Foster’s testimony must be excluded pursuant to former Code Ann. § 38-1603, Georgia’s Dead Man’s Statute, “which renders inadmissible in actions against a person since deceased evidence of transactions or communications with the deceased person.” Willis v. Kennedy, 267 Ga. 165 (1) (476 SE2d 246) (1996); OCGA § 24-9-1 (b).

Former Code Ann. § 38-1603 provided, in pertinent part: Where any suit shall be instituted or defended by [a representative] of a deceased person, the opposite party shall not be admitted to testify in his own favor against the deceased person as to transactions or communications with such deceased.

(Punctuation omitted.) Willis, supra at 165, n. 3.

However, Foster is competent to testify as to conversations which took place after July 1, 1979. OCGA § 24-9-1 (b). Foster’s interrogatory answers and Stephenson’s affidavit, unlike the evidence presented by Foster’s self-serving affidavit discussed in Division 1, created an issue of credibility, and, as a result, a question of fact. “Where a party gives testimony contradicting an out-of-court admission of such party, it is for the trier of fact to say whether it was true or false when made.” Dills v. Bohannon, 208 Ga. App. 531, 533 (1) (431 SE2d 123) (1993). In summary judgment proceedings, the trial court cannot determine the credibility of witnesses. The judgment of the trial court on this claim is reversed.

Decided June 27, 2000

Reconsideration denied July 14, 2000.

Farkas & Ledford, Leonard Farkas, for appellant.

William D. Moorhead III, for appellee.

Judgment affirmed in part and reversed in part.

Eldridge, J., concurs. Barnes, J., concurs in the judgment only as to Division 1 and concurs in the remainder of the opinion.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A00A1502.
    WILLIS et al. v. FIRST DATA POS, INC.
    (536 SE2d 198)
   Eldridge, Judge.

Joe Willis, Dan Gordon, Jim Javors, and Daniel Johnston (“the Willis group”) sued First Data Pos, Inc. for misrepresentation, breach of contract, and violation of the Georgia Racketeer Influenced & Corrupt Organizations Act, arising from the purchase of their stock in the software development company, COIN Banking Systems, Inc. On April 23, 1999, the trial court granted summary judgment on all theories of liability. We find under each theory of civil fraud and breach of contract that the trial court properly granted summary judgment because of the language of the Stock Purchase Agreement. However, there exists a material issue of fact as to RICO, because there is no defense of justifiable reliance or of “merger” in criminal fraud. Accordingly, as to the RICO claim, we reverse.

In 1991, First Data approached the owners of Retail Interact, a California developer of software, and persuaded its stockholders to sell out this prosperous company with current year profits and sales on the books that required future performance; the inducement for sale of their stock was upfront cash, employment for several years, and an additional contingent consideration over three years based upon increased sales by Retail Interact. Promises of combined product sales and investing resources in Retail Interact to enhance the company’s products and substantially increase sales were orally made but were carefully excluded from the Stock Purchase Agreement.

However, once First Data owned Retail Interact, all of the 1991 sales revenue by Retail Interact was shown as profit in that year by accrual accounting, instead of part performance accounting. Also, future expenses of performance of such sales were not accrued. Such deceptive accounting practices created inaccurate profits on the books and artificially inflated First Data’s profits as the parent company.

Such future costs as they were incurred would have forced a loss in 1992 on the books of First Data, unless it could show a substantial increase of profits from some other source than Retail Interact to offset such expenses, because to grow Retail Interact’s revenue would trigger the additional consideration being owed to the former stockholders under the Stock Purchase Agreement.

COIN showed an annual rate of revenue increase of 40 percent between 1989 and 1992 and was a prime target for First Data’s buyout of stock to provide profits in 1992. In the November-December 1992 period alone, COIN had actual sales of over $4,000,000, and prior to the stock sale, it projected sales for this period at $2,000,000. First Data orally promised the Willis group the investment of resources and personnel into COIN to make it grow; First Data paid cash up front for the stock, promised jobs for three years, and agreed to pay additional consideration contingent on COIN attaining certain revenue levels in the last two months of 1992 and the next three years, as it had with Retail Interact.

On October 30,1992, First Data purchased the stock of the Willis group through the use of an artfully crafted Stock Purchase Agreement that had the illusion of the oral promises of resource contribution; however, in the agreement, First Data reserved the power to terminate COIN’S operations without committing to invest any additional assets or personnel, which legally negated such oral promises and would protect it from any civil fraud or breach of contract actions. The Stock Purchase Agreement also contained a merger agreement that legally negated all prior commitments of resources.

As soon as First Data gained control of COIN, it changed the method of accounting to show on its and COIN’S books the 1992 sales as substantial profits in 1992 by accruing the revenue from sales, but not the expense for performance of the 1992 sales and not allocating future expenses, necessary expenses, and costs for personnel to perform these 1992 software sales. It also kept costs in 1993 at a bare minimum. The inability of COIN to perform the 1992 sales of service in installing the software and a delay in installation in 1993 had a chilling effect on future sales by COIN, so that the contingency for additional compensation could not occur as in the situation with Retail Interact. To prevent a loss, First Data kept the costs below the contract performance levels. Held:

1. Plaintiffs’ first enumeration of error is that the trial court erred in granting summary judgment on their tort fraud action. We find that the express terms of the Stock Purchase Agreement were intentionally crafted by First Data to protect it from tort fraud liability. This agreement was crafted with a merger clause and in such contract terms that a reasonable, prudent person exercising due diligence for their own protection in reading the contract should have known that any promises of resource allocation to COIN made by First Data orally were a mere illusion; that First Data possessed at all times the power to pull the plug on COIN; and that there could be no reasonable reliance on the false representations prior to execution and made to induce the stock sale, because such were refuted by the contract itself. See Estate of Farkas v. Clark, 238 Ga. App. 115, 119 (1) (517 SE2d 826) (1999); Kaye v. Ryland Group, 228 Ga. App. 742, 743 (492 SE2d 729) (1997).

From the record it is clear that First Data in its oral representations made in person and by telephone, and representations by mail to the Willis group promised to make substantial contributions to the development of COIN to induce the Willis group to sell their stock at below market value for cash and contingent consideration. However, the merger clause in the Stock Purchase Agreement negated such fraud in the inducement. Estate of Farkas v. Clark, supra at 117-118; see also Kaye v. Ryland Group, supra at 743. Therefore, in tort fraud, the Willis group had no cause of action. Willis v. Brooks & Thomas Motor Co., 101 Ga. App. 248 (113 SE2d 403) (1960).

Although the contract had some terms that gave the illusion of a commitment to make the necessary, reasonable, and promised resources available to COIN, i.e., the Covenant Not to Compete, First Data retained the express power under the clear terms of the contract to starve COIN of resources and to pull the plug on COIN if it wished. Thus, the Willis group failed to exercise ordinary care for its own protection as a matter of tort fraud by entering into a contract that expressly gave First Data the right, discretion, and power to do the opposite of what it orally promised to do. Thus, no reasonable reliance could exist as a matter of civil law. See Boynton v. State Farm &c. Ins. Co., 207 Ga. App. 756, 757 (429 SE2d 304) (1993).

2. Plaintiffs contend that the trial court erred in finding no breach of contract or breach of duty of good faith and fair dealing in granting the summary judgment. We do not agree. Again, First Data carefully crafted the Stock Purchase Agreement to protect itself from this very action by the wording of the agreement. There was neither a breach of contract nor a breach of duty of good faith and fair dealing, because the agreement expressly denied such duties. The agreement had no provision that was enforceable regarding specific levels of resources, personnel, or investment in COIN by First Data that would affect the additional consideration and gave full power and discretion to First Data to make such decisions. In fact, although the Willis group were employees for three years, they had no control or authority to hire more personnel or make investments in COIN to perform the 1992 sales or any future sales of software.

First Data, under the terms of the agreement, had no duty of good faith and fair dealing regarding the contingent consideration, and no implied duty of reasonable diligence arose from this contract, because such duty would conflict with the express term of the agreement, negating such duties. The Willis group conveyed all of its ownership interests. The Willis group received some, although inadequate, fixed consideration. There existed a need for First Data to exercise discretion, and therefore, no implied duty of fair dealing arose. See Higginbottom v. Thiele Kaolin Co., 251 Ga. 148, 151 (1) (304 SE2d 365) (1983); Palmer Brick Co. v. Woodward, 138 Ga. 289, 299 (3) (d), (e) (75 SE 480) (1912); DPLM, Ltd. v. J. H. Harvey Co., 241 Ga. App. 219, 224-225 (2) (526 SE2d 409) (1999); Hodges v. Ga. Kaolin Co., 108 Ga. App. 115, 118 (1) (132 SE2d 86) (1963).

First Data, in writing the contract, expressed a clear intent that it would have no express or implied duty to contribute to the resources of COIN or to hire necessary personnel. Thus, the express terms of the contract negated First Data’s duty under Georgia law of good faith and fair dealing. West v. Koufman, 259 Ga. 505, 506 (384 SE2d 664) (1989); Jackson Elec. Membership Corp. v. Ga. Power Co., 257 Ga. 772, 774 (1) (364 SE2d 556) (1988). Any pre-agreement promises as to resources vanished and were eliminated by the merger provision when the Stock Purchase Agreement was executed by all parties.

3. Plaintiffs contend that the trial court erred in granting summary judgment on their RICO claim. We agree and reverse.

(a)

Theft by deception and civil fraud have different elements and are not necessarily proved by the same evidence. See Robinson v. State, 198 Ga. App. 431, 433 (401 SE2d 621) (1991). Theft by deception is committed when a person “obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.” OCGA § 16-8-3 (a).

Avery v. Chrysler Motors Corp., 214 Ga. App. 602, 603 (1) (448 SE2d 737) (1994). Thus, for purposes of RICO, the absence of civil fraud does not mean also the absence of criminal fraud, i.e., theft by deception. Id.

[A] conviction under OCGA § 16-8-3 (b) (1) is authorized only when there is a deceitful misrepresentation regarding “an existing fact or past event,” and a false promise of future performance cannot be the basis for a conviction. Croy v. State, 133 Ga. App. 244, 246 (1) (211 SE2d 183) (1974). The reason for the rule regarding existing or past events is that if the party to whom the representation was made chose to rely upon the promise as to a future contingency, he is not deceived by deceitful means or artful practice, but his loss results from his absolute confidence in the party making the promise. Id. at 247-248.

(Punctuation and emphasis omitted.) Robinson v. State, supra at 433.

However, under OCGA § 16-8-3 (b) (5), when the defendant “[p]romises performance of services which he does not intend to perform or knows will not be performed,” such constitutes theft by deception. Theft by deception requires that the person committing the crime knows or believes that the created impression (which itself must have been intentionally created or confirmed) is false. OCGA § 16-8-3 (b); Avery v. Chrysler Motors Corp., supra at 604. In this case, the merger clause negated any and all promises of resource contribution as soon as the agreement was executed, which was the apparent intent of First Data from the drafting of the agreement.

It has uniformly been held that the offense therein declared was not for failure to perform services or pay debts, but was for fraudulently procuring money or other thing of value; that the fraudulent conduct of the defendant was the gist of the crime, not merely his failure to perform his contract.

(Citations and punctuation omitted.) Bullard v. State, 60 Ga. App. 33, 34 (4) (2 SE2d 725) (1939). Here, such knowledge and intent can reasonably be inferred from the earlier treatment of Retail Interact and from the crafting of the Stock Purchase Agreement to negate any promises of future contribution of capital upon the execution of the contract with its merger clause, which promises induced COIN to execute the contract in the first place. The jury must decide whether First Data’s commitment of resources was a statement of present fact made prior to the execution of the Stock Purchase Agreement to induce the sale or whether such was a future promise, which ceased upon the execution of the agreement for purposes of OCGA § 16-8-3 (b) (1) by the merger clause. Likewise, the jury must decide whether the promise of resources in the future under the oral promises and the written agreement was for part performance of services under OCGA § 16-8-3 (b) (5). See Cross v. State, 126 Ga. App. 346, 349 (1) (190 SE2d 561) (1972). In this case, the carefully crafted illusion of contract terms requiring good faith, fair dealing, and commitment of resources — when coupled with the express provisions of the merger clause and the discretion to terminate COIN thereby negating all prior commitments and assertions of good faith and fair dealing — allows a reasonable inference of intent to be drawn by the trier of fact. This legal sleight of hand gives rise to the reasonable inference of the knowledge, intent, and design not to perform the oral promises that induced the sale at below market value and to deceive, since First Data drafted this agreement.

(b) The elements of wire and mail fraud are: (1) the defendant either directly or as an accessory must have a scheme or artifice to defraud; (2) the defendant, or an associate within the scheme, used the wire or mail or caused the wire or mail to be used; and (3) the purpose of using the wire or mail was to execute the scheme or furtherance of the scheme, including delay in detection of the fraud. Simpson Consulting v. Barclays Bank, 227 Ga. App. 648, 653 (490 SE2d 184) (1997) (physical precedent only). For purposes of 18 USC §§ 1341 and 1343, the difficulty of proving specific intent to commit mail fraud or wire fraud has caused the “liberal policy as to the admission of evidence tending to prove good or bad faith.” (Citation and punctuation omitted.) United States v. Foshee, 606 F2d 111, 112-113 (5th Cir. 1979).

Under the Georgia RICO Act, the defendant must commit two predicate acts constituting a “pattern of racketeering activity” in a criminal enterprise which, on the evidence before this Court, a jury may find that First Data committed criminal fraud. OCGA §§ 16-14-3 (6), (8), (9); 16-14-4 (a); 16-14-6 (c); Dee v. Sweet, 268 Ga. 346, 349 (1) (489 SE2d 823) (1997); Gentry v. Volkswagen of America, 238 Ga. App. 785, 790 (521 SE2d 13) (1999); Adams v. State, 231 Ga. App. 279, 282 (2) (499 SE2d 105) (1998). Under OCGA § 16-14-3, plaintiffs presented some evidence to create a material issue of fact as to whether First Data engaged in the same predicate acts of criminal fraud, i.e., theft by deception, that has no defense of exercise of reasonable care to avoid fraud or contract merger clause. Predicate acts are shown under the Georgia RICO statute, OCGA § 16-14-3 (9) (A) “Racketeering activity,” subsection (x) “theft by deception” under OCGA § 16-8-3 (b) (1) (5), and subsection (xxix) referring to the Federal RICO Act, 18 USC § 1961 (1) (B) by use of “mail or wire fraud,” in furtherance of an unlawful scheme to defraud so as to constitute “wire fraud” and “mail fraud.” These are predicate acts that arise from the same facts and circumstances from the record in this case and may be found by a jury to constitute a pattern of racketeering activity as part of a criminal enterprise.

Plaintiffs presented some evidence to raise a material issue of fact as to the existence of a pattern of racketeering activity within the meaning of OCGA § 16-14-3 (8) when they showed the similarity of the Stock Purchase Agreements between First Data and Retail Interact and First Data and COIN; the accounting methods used to distort profits by not reflecting future costs; the pre-contract promises and inducements made orally in person and by telephone and by fax, e-mail, and letter to induce the contract; the contract designed to avoid the duty of good faith, fair dealing, and financial contribution to the growth of COIN and of Retail Interact and to avoid civil liability; the capital starvation of COIN and of Retail Interact through use of mail, e-mail, fax, and telephone to further the fraudulent scheme of avoiding contingent consideration; and the acquisition of COIN and Retail Interact at below their fair market value for fixed consideration, but preventing additional contingent consideration which could never be realized. Such evidence raises a factual issue for the jury as to the interconnectedness of such predicate acts as part of a common scheme or plan. See Hedquist v. Merrill Lynch &c., 236 Ga. App. 181, 183 (1) (511 SE2d 558) (1999); Larson v. Smith, 194 Ga. App. 698, 699 (391 SE2d 686) (1990); Dover v. State, 192 Ga. App. 429, 431 (1) (385 SE2d 417) (1989).

A jury could find that the plaintiffs were the target of predicate acts of criminal fraud, which were part of a pattern of racketeering activity including Retail Interact, and which directly caused pecuniary loss to flow from the predicate acts by preventing the contingent compensation from occurring. Gentry v. Volkswagen of America, supra at 791 (4).

Decided June 21, 2000

Reconsideration denied July 14, 2000

King & Croft, F. Carlton King, Jr., Arnold J. Wolf, for appellants.

Sutherland, Asbill & Brennan, Thomas A. Cox, Kristen J. Indermark, for appellee.

Judgment affirmed in part and reversed in part.

Blackburn, P. J., and Barnes, J., concur.

       18 USC § 1341:
      Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than five years, or both.
      18 USC § 1343:
      Whoever, having devised or intending to devise any scheme or artifice to defraud, or obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than five years, or both.
      What constitutes fraud is determined by other statutes. Parr v. United States, 363 U. S. 370 (80 SC 1171, 4 LE2d 1277) (1960). 18 USC § 1341 applies to schemes to defraud regardless of whether it is forbidden by state law. United States v. States, 488 F2d 761 (8th Cir. 1973); United States v. Bush, 522 F2d 641 (7th Cir. 1975); United States v. Foshee, supra at 113.


text:
    A00A1577.
    PRICE v. THE STATE.
    (535 SE2d 766)
   Eldridge, Judge.

This is an appeal from the denial of John Charles Price’s motion for discharge and acquittal. The following facts were adduced from the record and the transcript of the hearing on the motion:

On July 28, 1995, accusations were drawn and filed against Price, charging him with two counts of driving under the influence of alcohol, one count of speeding, and one count of improper lane usage. He retained attorney William Head to represent him on the charges. On Thursday, November 29, 1995, during the November/December term of court in Fulton County, attorney Head filed on Price’s behalf a “Demand For Speedy Trial By Jury Under OCGA § 17-7-170.” This was the only demand for a jury trial that was filed in the instant case. The State Court of Fulton County has six two-month terms of court beginning on the first Monday in January of each year. Accordingly, Price’s case needed to be tried in either December 1995 or during the January/February 1996 term of court in order to comply with the speedy trial requirements of OCGA § 17-7-170 (b).

Price’s case was put on the trial calendar for Monday, January 22, 1996. Mr. Head filed a conflict letter showing a jury trial conflict in the State Court of DeKalb County for the week of January 22. At the call of the calendar on January 22, Mr. Head did not answer. The calendar clerk testified that:

[t]he judge, you know, had pretty much gone. We all had been waiting. And when Mr. Head came in, he was talking to me, you know, at first, and then, you know, talking to Mr. Benham [solicitor]. And then they discussed withdrawing the speedy demand.

The solicitor and the calendar clerk both testified that Mr. Head orally withdrew his speedy trial demand and that Mr. Head requested that Price’s case be reset: “[Solicitor:] I’m a hundred percent sure that he waived the speedy trial. I would never in any fashion, way, or form agree to a re-set if there was a speedy trial demand in place unless I have a witness problem.” The solicitor and the calendar clerk both testified that attorney Head told them he would file “something” immediately in open court which would reflect his withdrawal of the speedy trial demand. With such an understanding, the solicitor agreed to reset Price’s case and left the courtroom.

Thereafter, Mr. Head filed with the calendar clerk a document he had already prepared captioned, “Withdrawal of Jury Demand,” which stated “Now Comes the Defendant, by counsel, and withdraws his jury demand.” At the hearing, the calendar clerk testified that “normally as a practice I try not to take any motions filed in court.” However, she agreed to permit Mr. Head to file the document with her because he was in a hurry to leave:

I said okay because he had somewhere else to go if I can recall. So I said okay, fine, I’ll go on and do it for you. So I didn’t even bother — I just saw withdrawal and assumed this is what we had already talked about, the speedy trial demand. ... I mean they’re officers of the court — I take their word for it. He said he was withdrawing his speedy so that’s what I assumed he did. I didn’t think it would come down to an issue of him telling me one thing and him doing something else in writing.

The record shows that Price’s case was reset to the March trial calendar, at which time Mr. Head filed another conflict letter. Thereafter, Mr. Head filed numerous applications requesting leaves of absence for dates specific through May 1997. On February 6,1997,14 months after the time for a speedy trial had run, Mr. Head filed a motion for discharge and acquittal based on the failure to try Price pursuant to OCGA § 17-7-170 (b).

Mr. Head also testified at the motion hearing, albeit to an entirely different sequence of events from that of the solicitor and the court’s calendar clerk. Mr. Head testified that he did not speak to the solicitor or the calendar clerk at all on January 22, 1996. Mr. Head testified that he had Price’s case reset because of a conflict: “I had somewhere to go. I had the Gibbons case to go to. . . . It was re-set for my conflict which the Gibbons case was older.” Mr. Head testified that he never told anyone he was withdrawing his speedy trial demand. Instead, Mr. Head stated that he filed a withdrawal of his demand for a jury only, and,

I was very specific in the wording I used because I had just had a case come back from the Court of Appeals that for the first time ever indicated that you could have a speedy demand and it be a bench trial. There’d never been a case before, and that was Ringo vs. The State[, 219 Ga. App. 753 (466 SE2d 660) (1996)]. That case had just come out in January of ‘96. And I filed not only that one [the withdrawal of jury demand in Price’s case] but several more in other courts in DeKalb and the City of Atlanta, in Gwinnett County, several other courts that they were filed in.

Mr. Head testified that, before our decision in Ringo v. State, a prosecutor might think that his “Withdrawal of Jury Demand” was the same as a withdrawal of his previously filed “Demand For Speedy Trial By Jury Under OCGA § 17-7-170,” especially since such document was the only demand for a jury trial filed in the instant case: “I would think that would be the general consensus. It would have been mine up until that point.” However, Mr. Head also testified that “one of the jobs that I have to do as a criminal defense attorney is see if the other side knows the law. That’s part of what my job is.” In furtherance of this job, Price argues that Mr. Head tested the prosecutor’s knowledge by permitting him to think that the withdrawal of jury demand was the same as a withdrawal of his demand for trial by jury under OCGA § 17-7-170:

Being unfamiliar with the Ringo case, Ms. Barnes [clerk] and Mr. Benham [solicitor] both assumed that Appellant’s counsel, Mr. Head, was withdrawing the speedy demand by virtue of the withdraw of jury form. . . . Mr. Head was counsel for Ringo on appeal in Ringo and as such, he certainly knew that Ringo had held that the withdrawal of a jury demand does not constitute a withdrawal of a speedy demand. . . . Clearly, Mr. Head was simply taking advantage of newly decided law.

After consideration of the testimony and evidence of record, the trial court denied Price’s motion for discharge and acquittal. Held:

1. OCGA § 17-7-170 (a) states in pertinent part that any person against whom an accusation is filed with the clerk may enter a demand for trial at the court term at which the accusation is filed or at the next succeeding regular court term; thereafter, a demand may be filed only by special permission of the court. In this case, the accusations against Price were filed on July 28, 1995, during the July/August term in Fulton County State Court. See Ga. L. 1983, p. 4501, § 1. Price’s demand was not filed during either the July/August term or the succeeding September/October term. Price filed his demand on November 29, 1995. The record does not show, nor does Price claim, that he received special permission from the court to file untimely. Because Price’s demand was not filed timely pursuant to the requirements of OCGA § 17-7-170 (a), the trial court did not err in denying his motion for discharge and acquittal. State v. Black, 213 Ga. App. 331 (444 SE2d 368) (1994); Ingram v. State, 224 Ga. App. 271, 272 (3) (480 SE2d 302) (1997).

2. Our decision in Division 1, supra, resolves the instant case for purposes of this appeal. However, attorney Head testified at the hearing on the motion for discharge and acquittal that he has filed several more demands and partial withdrawals similar to the ones filed in the instant case. We also recognize that Mr. Head is often in the vanguard of original thought where criminal defense practices are concerned. So, it is not unlikely that the propriety of the practice at issue here will again be a factor in the courts below and, as a consequence, an appellate issue before this Court. Accordingly, the practice at issue is not hypothetical, abstract, academic, or moot; resolution of issues relating thereto are appropriate for judicial determination in that discharge and acquittal on a criminal charge for failure to comply with OCGA § 17-7-170 is an extreme sanction which should not be approached incrementally. Especially when the failure to comply may be due to nothing more than confusion that can be alleviated by action from this Court. Accordingly, we will reach the practice of filing a single demand document, captioned as a single demand, containing a single request, and the subsequent effect of a partial withdrawal of the demand.

(a) At the outset, we must address Price’s argument that our decision in Ringo v. State controls this case. As in the instant case, Ringo v. State involved the same attorney employing a practice similar to the one discussed above. However, “[i]t is the duty of the parties, not this Court, to delineate the errors for consideration on appeal.” Cole v. State, 211 Ga. App. 236, 239 (438 SE2d 694) (1993). In that regard, our decision in Ringo v. State focused on the effects of the express language of the withdrawal document: “Ringo’s withdrawal . . . did not either explicitly or impliedly withdraw his demand for speedy trial.” Ringo v. State, supra at 754.

Here, however, Price contends that, prior to our decision in Ringo v. State, “a withdrawal of a jury demand may have in fact served to also withdraw a speedy demand where both were, as here, submitted on the same form.” (Emphasis supplied.) As framed by Price, this Court is asked to focus on the effects of the demand document in relation to the withdrawal, which issue was not squarely presented or decided in Ringo v. State, supra. Accordingly, Ringo v. State is not controlling.

(b) A “demand” for a jury trial need not be made. A criminal defendant has a constitutional right to a trial by jury and will receive one, unless such right is affirmatively waived. Thus, the “Demand Statute” is actually the speedy trial statute, OCGA § 17-7-170. Reid v. State, 116 Ga. App. 640, 645 (158 SE2d 461) (1967); Henry v. State, 263 Ga. 417, 418 (434 SE2d 469) (1993).

Under prior law, a speedy trial under OCGA § 17-7-170 could be invoked simply by filing a document liberally captioned “Demand for Jury Trial.” Confusion resulted, however, from the State’s inability to determine from such “demand” whether a defendant was invoking his statutory right to a speedy trial or was, instead, making a formal, written request for a jury trial: “[t]his liberality has given rise to the use of requests, demands, and motions which, though later made the basis for motions for acquittal pursuant to Code § 27-1901 [(now OCGA § 17-7-170)], cannot reasonably be construed as demands for speedy trial.” State v. Adamczyk, 162 Ga. App. 288, 289 (290 SE2d 149) (1982). So, in order to discourage the drafting of demands that could potentially cause confusion, this Court held that “henceforth a demand for trial will not be considered sufficient to invoke the extreme sanction of . . . OCGA § 17-7-170 unless it is presented for what it is — a demand to be tried within the next succeeding term of court.” (Punctuation omitted.) Ferris v. State, 172 Ga. App. 729, 731 (324 SE2d 762) (1984); State v. Adamczyk, supra at 289-290. Thereafter, we held that the caption of the demand should “set[ ] out the exact nature of the pleading.” (Emphasis in original.) Kramer v. State, 185 Ga. App. 254, 255 (363 SE2d 800) (1987). Further, a change in Uniform State Court Rules made it mandatory that “[e]very document or pleading presented for filing . . . shall bear a caption which sets out the exact nature of the pleading or the type of complaint.” (Emphasis in original.) Uniform Superior Court Rule 36.3. The point was to avoid confusion and circumvent the misleading of any party as to the content and effect of filed pleadings. As succinctly put by Justice Carley when he was a member of this Court, “[t]hose with whom documents are filed and those upon whom documents are served are entitled to rely upon the pleader’s compliance with the applicable law and the applicable Rules.” Kramer v. State, supra at 255.

Since State v. Adamczyk and Kramer v. State, however, this Court has moved away from the bright line notion that the caption of a demand must set out its exact nature so that such pleading — in the caption, itself — “is presented for what it is — a demand to be tried within the next succeeding term of court.” State v. Adamczyk, supra at 289-290. See Aranza v. State, 213 Ga. App. 192 (444 SE2d 349) (1994). We have found the single-word caption, “Demand,” with multiple demands made thereafter in the body of the pleading, sufficient to invoke the right to a speedy trial, as long as “[t]he text of appellant’s pleading specified his reliance upon the provisions of OCGA § 17-7-170.” Green v. State, 191 Ga. App. 873, 875 (383 SE2d 359) (1989); State v. Prestia, 183 Ga. App. 24 (357 SE2d 829) (1987). But, caption or text, the emphasis of this Court’s review has always been on whether the true nature of the pleading was apparent to all parties and was clearly presented for what it purported to be. See, e.g., Schaefer v. State, 238 Ga. App. 594 (2) (519 SE2d 248) (1999); Merrill v. State, 192 Ga. App. 890, 891 (386 SE2d 684) (1989). Compare Baker v. State, 212 Ga. App. 731, 733 (442 SE2d 815) (1994) (Cooper, J., dissenting).

Now we are faced with a slight twist on the type of review conducted in each of the cases cited above, where at issue was the sufficiency of the demand document. The sufficiency of a demand can be determined on its face, and clearly, Price’s “Demand For Speedy Trial By Jury Under OCGA § 17-7-170” was sufficient to invoke the statute. Here, however, the effect of the withdrawal document is at issue. And the efficacy of a withdrawal can only be determined in relation to the pleading it purports to withdraw. The two must be viewed together. Accordingly, the issue here is whether Price’s “Withdrawal of Jury Demand” with its single-line text “Now Comes the Defendant, by counsel, and withdraws his jury demand” sets out the exact nature of the pleading so as not to mislead or “obfuscate the true nature of the pleading” in relation to the demand that it refers to. See Schaefer v. State, supra at 594.

In this case, Price filed a single “demand” which specifically referenced in its caption a “trial by jury under OCGA § 17-7-170” as its single request. Nothing about the caption or the text of the demand indicated that a “demand for trial by jury” was separate from or in addition to a “demand for trial by jury under OCGA § 17-7-170.” To the contrary, the text of Price’s demand states that “the Defendant . . . demands a TRIAL BY JURY, and this is a request for speedy trial under OCGA § 17-7-170.” See footnote 1, supra. Further, the document then goes on to reference only one demand throughout the body of the text. Thereafter, Price withdrew his “Jury Demand.” He now claims that, because the withdrawal mentioned only the word “Jury,” his request for speedy trial remains viable. However,

[t]o give effect to appellant’s pleading as a proper [with-" drawal] for . . . only a jury trial but [not] for a trial pursuant to OCGA § 17-7-170 would be to endorse resort to the same type of draftsmanship under the Rules that Adamczyk sought to discourage. ... In order for a criminal defendant to obtain the extreme sanction of OCGA § 17-7-170 he must show compliance with the applicable procedure.

Kramer v. State, supra at 256. In order to comply with the applicable procedure and put the State on notice of the “exact nature” of the withdrawal in relation to the demand it refers to, Price needed — in the caption or the text of the withdrawal — to uncouple what was a single specific demand for “trial by jury under OCGA § 17-7-170.” Withdrawal of the “Jury Demand,” without specifically separating out any reference to OCGA § 17-7-170, logically incorporates all aspects of the' only jury demand that was filed, i.e., the single “Demand For Speedy Trial By Jury Under OCGA § 17-7-170.”

Contrary to the view of some, our legal system is not simply an elaborate game of “Gotcha!” This Court does not endorse acquittal by ambush on the part of a defendant any more than it does trial by ambush on the part of the State. Nor do we condone induced error. The object of all legal investigation is the truth, and procedural rules are in place to further such goal in an orderly fashion. Because Price filed a single demand which was specifically captioned and written as a “Demand For Speedy Trial By Jury Under OCGA § 17-7-170,” his subsequent “Withdrawal of Jury Demand,” without more, served to withdraw his single, previously filed demand in its entirety. The trial court did not err in denying his motion for discharge and acquittal. To the extent that Ringo v. State can be read to conflict with this decision, it is overruled.

Judgment affirmed.

Johnson, C. J, Pope, P. J, Andrews, P. J, Blackburn, P. J., Smith, P. J., Phipps and Mikell, JJ, concur. Ruffin, Barnes, Miller and Ellington, JJ., concur in judgment only.

Decided June 9, 2000

Reconsideration denied July 14, 2000

Jamie S. Wingler, for appellant.

Carmen Smith, Solicitor, Oliver E. Murray, Jody L. Peskin, Assistant Solicitors, for appellee.

       The text of the demand reads:
      NOW COMES the Defendant and demands a TRIAL BY JURY, and this is a request for speedy trial under OCGA § 17-7-170. By copy of this Demand, the Prosecuting Attorney has been served with this statutory demand for trial within the present term or the next term of this court. In the event a jury trial is not had within that time period, Defendant prays that he be acquitted and discharged of all offenses

       OCGA § 15-7-40; Ga. L. 1983, p. 4501, § 1.

       See Jeffries v. State, 140 Ga. App. 477 (231 SE2d 369) (1976); Williams v. State, 140 Ga. App. 505 (231 SE2d 366) (1976); Gay v. State, 140 Ga. App. 516 (231 SE2d 509) (1976); State v. Smith, 156 Ga. App. 133 (274 SE2d 130) (1980); Pless v. State, 157 Ga. App. 681 (278 SE2d 475) (1981).

       “The Uniform Rules for the Superior Courts shall be applicable in State Courts” with exceptions not relevant herein. Uniform State Court Rules, Preamble.

       As a matter of grammar, the pronoun “this” refers to the noun phrase, “a trial by jury,” which immediately precedes it.


author: Ruffin, Judge. Andrews, Presiding Judge, Eldridge, Judge,

text:
    A00A0073.
    THE STATE v. BLACKWELL.
    (537 SE2d 457)
   Ruffin, Judge.

The trial court dismissed drug possession charges against John Blackwell after the State intentionally destroyed Blackwell’s urine sample. The State Crime Lab’s positive test results on the sample were the only evidence of Blackwell’s guilt; the sample had initially tested negative for drugs in a field test; and there was an existing court order allowing Blackwell to independently test the sample. Under these circumstances, the trial court concluded that allowing the State to prosecute Blackwell would be “fundamentally unfair.” The State appeals. We agree with the trial court and affirm.

The record shows that, on March 9,1997, Blackwell was cited for DUI and weaving on the road. Three days later, Blackwell’s probation officer tested his urine for drugs using a kit issued by the State. The test was negative. Nevertheless, an agent from the Appalachian Drug Task Force sent Blackwell’s urine — the same sample — to the State Crime Lab, which tested it again. This time, the urine tested positive for amphetamine and methamphetamine. Blackwell was indicted for possession of amphetamine and methamphetamine, as well as DUI and weaving on the road.

Shortly after his arraignment, Blackwell filed a motion to permit an independent laboratory analysis of his urine sample. The prosecutor consented to the motion, and, in an order dated March 26, 1998, the trial court granted it. The order provided that Blackwell’s “attorney, or his representative, shall call [the State Crime Lab] in advance to set an appointment to view the evidence.”

According to Blackwell’s attorney, the prosecutor called the State Crime Lab to inform them that defense counsel would be bringing an expert to analyze the urine, but the prosecutor was told that the crime lab did not keep urine specimens for more than one year. The record does not show when this call took place. In a letter dated April 28, 1998, the prosecutor wrote to Blackwell’s counsel that an employee from the crime lab “called this morning and confirmed that the urine has been destroyed, pursuant to their policy of destroying urine after 12 months.”

At the hearing on Blackwell’s motion to dismiss, however, the prosecutor stated that the crime lab had recently confirmed that it did not actually destroy the urine until May 5 or 15, 1998. Blackwell’s attorney argued that allowing the State to present evidence of the crime lab’s positive test result would violate “fundamental fairness.” The prosecutor suggested that Blackwell could have tested the urine during the month and a half period between the entry of the consent order and the destruction of the sample. Without specifically ruling on that argument, the trial court concluded that it was “fundamentally unfair” for the State to destroy the evidence after the entry of its order, and it dismissed the drug charges in the indictment.

1. On appeal, the State argues that Blackwell waived his right to independent testing by waiting too long after the entry of the consent order to procure such testing. We do not agree.

The State relies upon Norley v. State, in which the defendant moved for an independent analysis of a substance that the State Crime Lab had determined to be cocaine. The trial court entered an order granting the motion and giving the defendant approximately one month to conduct the analysis. The defendant failed to conduct the analysis within that time, and the crime lab destroyed the evidence three or four months later. On those facts, we held that the defendant waived his right to independent analysis by “not timely utilizing the court-ordered opportunity to conduct the testing.”

This case is considerably different. First, unlike in Norley, the trial court’s order did not set a specific time for Blackwell to complete the independent analysis. Second, the record shows that Blackwell took steps to accomplish the analysis within one month of the trial court’s order. The trial court’s order is dated March 26, 1998. The prosecutor called the State Crime Lab on Blackwell’s behalf to arrange for independent testing. Although the record does not show when this call occurred, the prosecutor’s April 28 letter to Blackwell’s attorney states that the crime lab had confirmed the destruction of the sample, implying that the first contact with the lab occurred before April 28. Thus, Blackwell — or the prosecutor acting on his behalf — acted within one month of the trial court’s order. Under these circumstances, we cannot conclude that Blackwell waived his right to an independent test.

2. Even though Blackwell did not waive his right to an independent test, the trial court lacked authority to dismiss the drug charges in the indictment unless prosecution would violate Blackwell’s constitutional rights. The trial court concluded that prosecution would result in a due process violation, and we uphold that ruling.

(a) First, we address the assertion of the dissenting opinion by Presiding Judge Andrews that the issue of due process was not raised in the trial court. The due process clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” Under this clause, “criminal prosecutions must comport with prevailing notions of fundamental fairness.” The United States Supreme Court has long held that fundamental fairness “require [s] that criminal defendants be afforded a meaningful opportunity to present a complete defense,” including the right of access to exculpatory evidence.

At the hearing on Blackwell’s motion to dismiss, Blackwell’s counsel argued to the trial court that allowing the State to present evidence of the crime lab’s test result would violate “fundamental fairness,” and the trial court agreed. Although the trial court did not specifically mention the due process clause, the court repeatedly referred to the State’s destruction of the urine sample as “fundamentally unfair,” which is the gravamen of a due process violation. And the court gave no other basis for its ruling. Thus, it seems clear that Blackwell’s motion and the trial court’s ruling were based on constitutional due process, even if those words were not used. There should be no sophisticated way to say “due process” or whatever is fundamentally fair. Thus, we may properly consider the constitutional issue here.

(b) “The practice of destroying evidence without prior notice to the accused has been soundly denounced.” The State has a constitutional obligation to preserve “evidence that might be expected to play a significant role in the suspect’s defense.” Accordingly, our Supreme Court has recognized that “[w]here the defendant’s conviction or acquittal is dependent upon the identification of [a] substance as contraband, due process of law requires that analysis of the substance not be left completely within the province of the state.” In California v. Trombetta, the United States Supreme Court held that the State violates a defendant’s right to due process when it destroys evidence that has “constitutional materiality” — i.e., evidence that (1) has “an exculpatory value that was apparent before the evidence was destroyed” and (2) is “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”

In Trombetta, the defendants, who were prosecuted for drunk driving, challenged the destruction of their breath samples after tests performed by the State using an Intoxilyzer machine showed that the samples contained alcohol. The defendants claimed that “had a breath sample been preserved, [they] would have been able to impeach the incriminating Intoxilyzer results.” The Court found no due process violation, however, because the possibility that an independent test of the breath samples would have exculpated the defendants was “extremely low” and because there was evidence that the defendants could have impeached the Intoxilyzer results by other means.

This case differs markedly from Trombetta, and both prongs of the two-part test announced in Trombetta are satisfied here. First, Blackwell’s urine sample had an exculpatory value that was apparent before its destruction. “Exculpatory” means “supportive of a claim of innocence” or “tending to clear from alleged fault or guilt.” Here, the very same urine sample that the State destroyed had previously tested negative for drugs in a State-administered field test. Because the results of the field test tended to show Blackwell’s innocence of the drug charges, the urine had obvious exculpatory value that was apparent before the State destroyed it. Moreover, unlike in Trombetta, Blackwell had specifically sought an independent analysis of the urine sample, and the court had granted that motion before the urine was destroyed. Thus, the State was clearly on notice that the urine was “expected to play a significant role in [Blackwell’s] defense.”

The second prong of the Trombetta test — a showing that Blackwell is unable to obtain comparable evidence by reasonably available means — is also satisfied. Obviously, Blackwell cannot replicate the destroyed sample. Blackwell could impeach the State Crime Lab’s test result by introducing the contrary result from the probation officer’s initial test of the urine. But, as the Supreme Court of Illinois said in People v. Newberry, the relief offered by evidence of a conflicting field test is “illusory”:

Whatever the actual reliability of the tests performed in the lab . . . the laboratory analysis of the evidence will carry great weight with the jury, and the jury will undoubtedly give such an analysis more deference than the initial field test procedures, which are inherently less precise and controlled.

As in Newberry, Blackwell has no “realistic hope of exonerating himself absent the opportunity to have [the evidence] examined by his own experts.” By destroying the sample, the State destroyed Blackwell’s ability to meet the prosecution’s proof with evidence of like quality.

In short, the State destroyed Blackwell’s urine despite its known exculpatory value (the previous negative test) and despite the court order granting Blackwell access to it. Blackwell has no comparable evidence. Accordingly, the State violated Blackwell’s due process rights under Trombetta, and the trial court properly dismissed the drug charges in the indictment.

(c) Four years after Trombetta, the United States Supreme Court decided Arizona v. Youngblood, another case addressing the State’s obligation to preserve evidence. In Youngblood, the issue was whether the State properly preserved semen samples of the perpetrator in a sexual molestation case. The State allegedly allowed the evidence to deteriorate before testing it, so the test results were inconclusive. The evidence was made available to the defendant, who declined to test it himself, and the State did not use the test results against the defendant at trial. Nevertheless, the defendant argued that if the State had properly preserved the evidence, it might have exonerated him.

On these facts, the Court concluded that the exculpatory value of the semen evidence was not known to the State when the State allegedly mishandled it. Rather, “this evidence was simply an avenue of investigation that might have led in any number of directions.” The evidence did not meet the standard announced in Trombetta because “no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Accordingly, the Court held that the State’s failure to preserve evidence that is only “potentially useful” does not violate due process unless the defendant can show that the State acted in bad faith. The bad faith requirement avoids “imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.”

Although Georgia courts have not squarely addressed this issue, numerous courts from other jurisdictions have concluded that Youngblood’s bad faith requirement does not apply where — as here — the exculpatory value of the evidence was apparent before its destruction, and there is no reasonably available comparable evidence. In other words, only if the two requirements of Trombetta are not met does the good or bad faith of the State become relevant.

As discussed above, Blackwell’s urine sample was not “simply an avenue of investigation that might have led in any number of directions,” as was the case in Youngblood. It was not merely “potentially useful.” Rather, it was the sole basis for the prosecution of Blackwell, and the results of the tests performed on it were “essential to and determinative of the outcome of the case.” Most importantly, the exculpatory value of the urine was obvious before it was destroyed because the State had previously tested it and found no evidence of drugs. Youngblood does not apply here, and Blackwell did not have to show that the State acted in bad faith.

(d) But even if Blackwell did have to show bad faith, the trial court implicitly found bad faith here based on the State’s disregard of its discovery order, and the record supports that finding.

In Youngblood, the Court asserted that “[t]he presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” A finding of bad faith is reserved for “those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.” Because the presence or absence of bad faith depends on the facts of a particular case, this Court will accept a trial court’s determination as to whether the State acted in bad faith if there is any evidence to support it. Although the trial court did not explicitly use the phrase “bad faith,” the transcript from the hearing on Blackwell’s motion to dismiss shows that the court believed the State violated an obligation to preserve the evidence until Blackwell could analyze it in accordance with the court order.

According to the prosecutor, the evidence was not destroyed until May 5 or 15. The trial court believed the prosecutor and accepted this date, as it was entitled to do. Therefore, the evidence was destroyed not only without notice to Blackwell, but after Blackwell had specifically sought an independent analysis, after a court order was in place permitting such an analysis, after the crime lab was notified that Blackwell wanted the evidence, and after the State represented to Blackwell that the sample was unavailable. The questionable timing of the destruction suggests bad faith on the part of the State.

We conclude that the State’s intentional destruction of critical evidence without notice to a defendant in the face of a court order allowing the defendant access to that evidence can amount to bad faith. So, even though Blackwell was not required to make that showing, the evidence here supports it.

Accordingly, we affirm the trial court’s judgment.

Judgment affirmed.

Blackburn, P. J., Barnes, Ellington and Mikell, JJ., concur. Andrews, P. J., and Eldridge, J., dissent.

Andrews, Presiding Judge,

dissenting.

I must respectfully dissent because the majority has, in essence, created a complex federal constitutional argument for Blackwell, assumed and speculated about facts not proven below to analyze it on Blackwell’s behalf, and then ruled in his favor on it, even though the trial court did not. The majority concludes that the State violated his Fifth Amendment due process rights because the Crime Lab, in the normal course of its business and without Blackwell having availed himself of testing the urine as provided in the consent order for such testing, destroyed the urine after 12 months.

Pursuant to Patterson v. State, 238 Ga. 204 (232 SE2d 233) (1977), an accused charged with possession or sale of a prohibited substance is entitled to have an independent examination of the substance made. That right, however, is not absolute. The demand must be timely, the request must be reasonable, and the trial court may, as a matter of discretion, refuse to permit such an examination. Id. at 206. In Patterson, the demand was not made until nearly four years after Patterson’s arrest and shortly before his trial. Two months before the request, the marijuana had been destroyed by the State Crime Laboratory. There, the demand was found untimely, and there was no impediment to prosecution.

Even destruction of the entire seized material during testing by the State will not preclude prosecution and admission of the State’s test results. In Partain v. State, 238 Ga. 207, 208 (232 SE2d 46) (1977), it was concluded that a request for independent testing when the substance had been used up was unreasonable because an independent test was impossible.

Further, “even the destruction of potentially exculpatory evidence does not violate due process unless the police acted in bad faith in failing to preserve the evidence. [Cits.]” Smith v. State, 270 Ga. 68, 71 (6) (508 SE2d 145) (1998). No such showing was made in this case, and the granting of the motion to dismiss on this basis was error. Smith involved a due process argument, made and ruled upon below, but is relegated to a footnote reference by the majority indicating that no bad faith was shown there and there was not enough sample for two tests. No “bad faith” by the State is shown on the record here either, nor was any specifically found by the trial court. The majority sidesteps this, apparently by imposing an affirmative obligation on the State to assure that the accused avails himself of his discovery opportunity once an order is entered. Under OCGA § 17-16-4 (3), our criminal discovery statute, that responsibility is the defendant’s. Norley v. State, 170 Ga. App. 249, 252 (4) (316 SE2d 808) (1984).

Smith also involved, not a motion to dismiss precluding further prosecution by the State as is being done here, but a motion in limine seeking exclusion of the State’s test results in any such prosecution.

The order allowing the independent analysis had been in effect for approximately a month before the urine was destroyed, and

[Blackwell] had not sought to have any independent analysis conducted by the date of this destruction. Under these circumstances, by not timely utilizing the court-ordered opportunity to conduct the testing, [Blackwell] waived any right to the independent analysis.

Norley v. State, supra.

While the majority has ruled based upon an extensive discussion of Supreme Court decisions involving the Fifth Amendment to the Federal Constitution, this argument was not contained in Blackwell’s written motion to dismiss. In his oral argument before the judge, Blackwell’s counsel stated merely that “[w]e think it’s inherently unfair and would be volitive [sic] of fundamental fairness to allow that test to come in now. . . .” This Court has repeatedly held that, in order to raise an issue of violation of constitutional protections, one must specify which constitution (state or federal) and which provision thereof one is relying upon. See Hall v. State, 200 Ga. App. 585 (1) (409 SE2d 221) (1991); Lee v. State, 166 Ga. App. 485 (1) (304 SE2d 446) (1983). That was not done here.

Nor was the issue specifically ruled upon by the trial judge. During the hearing, the trial judge stated that the destruction of the urine before Blackwell took steps to have it tested was “fundamentally unfair.” There is no ground for the dismissal given in the written order filed, merely the statement that Blackwell’s motion was granted.

Grounds not presented to or specifically ruled upon by the trial court are waived and not generally considered by this Court. Rushing v. State, 271 Ga. 102, 104-105 (2) (515 SE2d 607) (1999); O’Hannon v. State, 240 Ga. App. 706, 709 (2) (524 SE2d 759) (1999); Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997).

Also, as reflected by the majority, it is unclear what actually happened regarding the destruction of the sample. No witness from the lab was called by Blackwell in support of his motion to dismiss. The only “evidence” in the record is the April 28 letter from the prosecutor to Blackwell’s counsel, repeating a statement made by telephone to the prosecutor by an unidentified lab employee regarding the sample’s destruction and statements made by the prosecutor during the hearing, also relating telephone conversations with other unidentified lab employees. Such statements are hearsay and prove nothing. In re Phillips, 225 Ga. App. 478, 481 (2) (484 SE2d 254) (1997); see Wellons v. State, 266 Ga. 77, 88 (18) (463 SE2d 868) (1995).

The trial court, under the unique factual and procedural posture of this case, in my opinion, abused its discretion in dismissing the indictment.

Eldridge, Judge,

dissenting.

I believe that the best course would be to vacate the judgment and remand this case for further findings of fact and conclusions of law. My reasons flow from consideration of the content of the majority opinion.

Because of the failure to preserve Blackwell’s urine sample, the trial court dismissed the State’s indictment. The majority favors this remedy because it seems unfair that Blackwell did not get a chance to independently test his urine sample when: the trial court issued an order saying he could, a prior field test showed negative for drugs, and a subsequent positive test is the basis for his prosecution. Understandable. I do not agree. But it is understandable. In my view, however, the law does not support dismissing the State’s indictment for the following reasons:

1. While OCGA § 17-16-6 gives a trial judge discretion to fashion a remedy for a violation of the discovery statute, a dismissal with prejudice of a criminal indictment is not a matter of a trial court’s discretion. A dismissal with prejudice of a criminal indictment interferes with the State’s right to prosecute and “have its case against [the defendant] determined on the merits.” State v. Owens, 189 Ga. App. 308, 310 (375 SE2d 656) (1988).

The Civil Practice Act (OCGA § 9-11-41 (b)) provides for dismissals with prejudice of civil cases, but the court knows of no statutory or case authority which permits such dismissals in criminal cases. (Emphasis in original.) State v. Cooperman, 147 Ga. App. 556, 558 (2) (249 SE2d 358) (1978). See also special concurrence in State v. Owens, [supra at 310].

(Punctuation omitted; emphasis in original.) State v. Luttrell, 207 Ga. App. 116 (427 SE2d 95) (1993).

Thus, in order to deny the State its right to prosecute on the indictment because of the failure to preserve evidence, such failure must amount to a constitutional due process violation. California v. Trombetta, 461 U. S. 479, 488-489 (104 SC 2528, 81 LE2d 413) (1984) (“Trombetta”); Arizona v. Youngblood, 488 U. S. 51, 58 (109 SC 333, 102 LE2d 281) (1988) (“Youngblood”).

Here, the trial judge dismissed the indictment because he incorrectly determined that the District Attorney (DA), not Blackwell, had a duty to take the court’s order to the crime lab to prevent destruction of the sample:

Let me ask you, whose responsibility is it to take a court order to your client — I mean, your witness [crime lab]? Isn’t it your responsibility to get them there, Mr. Wilbanks [DA]? . . . [I]t’s your responsibility to tell them there’s going to be an independent. ... I think the State’s got a burden once that order’s entered.

In fact, a DA has no such burden under OCGA § 17-16-4 (3). And even if the DA had such duty, dismissal of the indictment is not an appropriate remedy.

2. Presumably on a right for any reason ground, the majority would affirm dismissal of the State’s indictment on constitutional due process grounds. However:

(a) The majority holds that Georgia courts “have not squarely addressed” the issue of the “bad faith” requirement in cases such as this one where the State failed to preserve disclosed evidence. This is incorrect. The Supreme Court of Georgia has “squarely” held that, “In dealing with the failure of the state to preserve evidence which might have exonerated the defendant, a court must determine both whether the evidence was material and whether the police acted in bad faith in failing to preserve the evidence.” (Emphasis supplied.) Walker v. State, 264 Ga. 676, 680 (3) (449 SE2d 845) (1994); Terrell v. State, 271 Ga. 783, 787 (6) (523 SE2d 294) (1999); Smith v. State, 270 Ga. 68, 71 (6) (508 SE2d 145) (1998). This Court has repeatedly followed the Supreme Court’s two-prong analysis.

The majority now advocates a new approach which would abolish the longstanding requirement that both “constitutional materiality” AND “bad faith” be shown in failure-to-preserve cases. The majority contends that the raft of cases which have established the two-prong requirement of (A) constitutional materiality and (B) bad faith are not applicable here because “those cases did not involve evidence whose exculpatory value was apparent before its destruction.” But even assuming arguendo that the exculpatory value of Blackwell’s sample was shown, the establishment of exculpatory value before destruction is prong A, constitutional materiality “to satisfy the standard of constitutional materiality in Trombetta . . . the exculpatory value of the evidence must be apparent before [it is] destroyed.” (Punctuation omitted.) Youngblood, supra at 56. It is illogical to argue that the establishment of one prong of a two-prong requirement negates the second prong, when this Court has repeatedly held that both prongs must be shown to establish a due process violation. The majority’s approach ignores precedent and endorses a departure from the decisions of the Supreme Court of Georgia. This Court has no such authority.

(b) So, in order to dismiss the indictment, the State must have acted in “bad faith” of a constitutional dimension by failing to preserve Blackwell’s urine sample. Perhaps in recognition of such, the majority also holds that “the trial court implicitly found bad faith here based on the State’s disregard of its discovery order.” This holding is incorrect both legally and factually.

(i) The type of “bad faith” that has constitutional dimension is motivated by a specific intent, i.e., a “conscious effort to suppress exculpatory evidence.” Trombetta, supra at 488. “Bad faith” of a constitutional dimension is not the generalized., undefined “bad faith” referenced in OCGA § 17-16-6 which can be deliberate conduct motivated by anything from anger to stubbornness, based on the trial court’s discretionary determination, and applies equally to the defense as well as the State. The type of “bad faith” that results in a constitutional due process violation cannot be found “implicitly” simply because there is a statutory discovery violation. The words, “bad faith,” may be the same. But the legal concepts are not.

(ii) All participants in the court below agree that “the sample was no longer there because of crime lab policy,” not because there was an attempt to suppress exculpatory evidence. No one acted in “bad faith” of a constitutional dimension under the facts of this case:

Decided July 14, 2000

In failing to preserve . . . samples for respondents, the officers here were acting in good faith and in accord with their normal practice. The record contains no allegation of official animus towards respondents or of a conscious effort to suppress exculpatory evidence.

(Citation and punctuation omitted.) Trombetta, supra at 488.

(iii) Blackwell did not claim below and has not claimed on appeal that the State acted in “bad faith” in destroying the tested urine sample. And there was no finding of “bad faith” by the trial court: “[Trial Judge:] I’m not trying to go against the district attorney’s office on any specific ground.”

Accordingly, the State did not get a chance to defend against such charge at trial or on appeal. For this Court to now make such a serious finding as “bad faith” of a constitutional dimension on the record before us — without permitting the State any opportunity to respond — is truly “fundamentally unfair.”

3. This case makes clear the old axiom “bad cases make bad law.” The record in this case is deficient: it is unknown whether the sample was destroyed before or after the trial court’s order; it is unknown whether the crime lab was aware of the court’s order at the time of the destruction; it is unknown whether the trial court dismissed the indictment based on constitutional “fundamental fairness” grounds or based upon a violation of a duty the prosecutor allegedly held under the discovery statute; there was no finding of bad faith or allegation of such; the State did not get to defend against any allegation of bad faith; and the trial court dismissed the State’s indictment when such remedy was not available for a discovery violation, if one existed.

I believe that this case should be remanded for specific findings of fact and conclusions of law. Let the trial court and the parties decide what happened to Blackwell’s urine sample, when it happened, and why. Let the trial court determine whether there was “bad faith” on the part of the State and give the State an opportunity to defend against such charge. Let the trial court then fashion a legal remedy appropriate to its specific factual findings on this subject, with a right in the nonprevailing party to appeal. On the record before us now, I must respectfully dissent.

Roger G. Queen, District Attorney, John G. Wilbanks, Jr., Assistant District Attorney, for appellant.

William L. Reilly, for appellee.

       170 Ga. App. 249, 252 (4) (316 SE2d 808) (1984).

       Id.

       Citing Patterson v. State, 238 Ga. 204 (232 SE2d 233) (1977), the dissenting opinion by Presiding Judge Andrews suggests that Blackwell’s motion for independent analysis was untimely in the first place. Patterson holds that a trial court may deny a request for independent analysis if the request is untimely or unreasonable. But the timeliness of Blackwell’s request — to which the prosecutor consented — is not before us. The State’s argument on appeal is that Blackwell waived his right to an independent analysis by not acting more promptly after the entiy of the consent order.

       See State v. Luttrell, 207 Ga. App. 116 (427 SE2d 95) (1993) (“ ‘the court knows of no statutory or case authority which permits [dismissals with prejudice] in criminal cases’ ”).

       U. S. Const., Amend. 14, Sec. 1.

       (Emphasis supplied.) California v. Trombetta, 467 U. S. 479, 485 (104 SC 2528, 81 LE2d 413) (1984).

       Id.

       See, e.g., Bearden v. Georgia, 461 U. S. 661, 666 (103 SC 2064, 76 LE2d 221) (1983).

       We have repeatedly held, in a variety of contexts, that “[t]here is no magic in mere nomenclature, and the inquiry of the Court is always directed to substance and not to form.” (Punctuation omitted.) W. E. Heller & Co. v. Aetna Business Credit, 158 Ga. App. 249, 257 (280 SE2d 144) (1981).

       (Punctuation omitted.) Rogers v. State, 224 Ga. App. 359, 360 (2) (480 SE2d 368) (1997).

        Trombetta, supra at 488.

        Patterson, supra at 206.

        Trombetta, supra at 489.

         Id. at 483.

       Id. at 489-490.

       (Punctuation omitted.) Tribble v. State, 248 Ga. 274, 275 (1) (280 SE2d 352) (1981).

       Black’s Law Dictionary (5th ed.).

        Trombetta, supra at 488.

       166 Ill.2d 310 (652 NE2d 288) (1995).

       (Citations omitted.) Id. at 292.

       Id. at 291.

       See Sisson v. State, 181 Ga. App. 784, 788 (353 SE2d 836) (1987) (recognizing that independent analysis is “ ‘the only means by which the defendant can defend against expert testimony by the State’ ”).

        Trombetta, supra at 487 (“when evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing. . . the State’s most probative evidence”).

       488 U. S. 51 (109 SC 333, 102 LE2d 281) (1988).

       Id. at 56, n. *.

       Id. at 57.

       (Emphasis supplied.) Id. at 58.

       Id.

       Citing Smith v. State, 270 Ga. 68, 71 (6) (508 SE2d 145) (1998), the dissents suggest that it is settled under Georgia law that bad faith must be shown in every failure-to-preserve case. We do not agree. Smith states only that “the destruction of potentially exculpatory evidence does not violate due process unless the police acted in bad faith in failing to preserve the evidence.” (Emphasis supplied.) Id. Neither Smith nor any other Georgia case addresses the issue of the State’s failure to preserve evidence whose exculpatory value was apparent — as opposed to simply potential — before the State destroyed it.

       See, e.g., United States v. Bohl, 25 F3d 904, 910 (10th Cir. 1994) (bad faith requirement applies where “the exculpatory value of the evidence is indeterminate and all that can be confirmed is that the evidence was ‘potentially useful’ for the defense”); Lila v. McKune, 45 FSupp.2d 1157, 1163 (D. Kan. 1999) (noting that more stringent analysis applies if evidence is only “potentially useful” to the defendant); State v. Greenwold, 189 Wis.2d 59 (525 NW2d 294, 297) (Wis. App. 1994) (“the Youngblood analysis suggests that if the materiality of the evidence rises above being potentially useful to clearly exculpatory, a bad faith analysis need not be evoked”); United States v. Belcher, 762 FSupp. 666, 672 (W.D. Va. 1991) (Youngblood’s bad faith requirement does not apply where “the destroyed evidence at issue is absolutely crucial and determinative to this prosecution’s outcome”); People v. Eagen, 892 P2d 426, 428 (Colo. App. 1994) (Youngblood applies only when “the exculpatory value of the evidence does not satisfy the Trombetta standard”); Newberry, supra at 291 (no bad faith showing required where destroyed evidence “is more than just ‘potentially useful’ ”).

        Newberry, supra at 291. The facts of Newberry are similar to those here. Police seized from Newberry a substance they believed to be cocaine. A field test was negative for the drug, but a subsequent laboratory test was positive. Newberry’s lawyer filed a motion to examine all objects seized from Newberry. After the motion was filed, an evidence technician inadvertently destroyed the substance. The trial court granted defense counsel’s motion to dismiss the indictment, and the Illinois Supreme Court upheld that ruling, rejecting the State’s argument that Newberry had to show bad faith to prove a due process violation. See also Ex parte Gingo, 605 S2d 1237 (Ala. 1992) (where federal government destroyed samples of alleged hazardous waste through no fault of state after order permitting discovery of the materials, it was “fundamentally unfair” to allow State to use results of tests performed on samples in criminal environmental prosecution).

        Youngblood, supra at 56, n. *.

       Id. at 58.

       See Milton v. State, 232 Ga. App. 672, 679 (6) (503 SE2d 566) (1998).

       See Ga. Bldg. Svcs. v. Perry, 193 Ga. App. 288, 299-300 (6) (387 SE2d 898) (1989) (“It has long been the law that where counsel make statements in their place, they may be received without verification unless the same is required by the opposing party at the time.”) (punctuation omitted; emphasis in original). In addition, the prosecutor was an agent of the State who was communicating with the crime lab to arrange for independent testing. Contrary to the assertion of the dissent, the trial court could — and did — rely on the prosecutor’s representations concerning actions taken by the State.

       Compare Smith v. State, supra (no bad faith where substance found under defendant’s fingernail was consumed during initial testing process and State’s expert testified that she knew “that there was a possibility of consuming the sample, but that she could not tell what the probability was”); Lynott v. State, 198 Ga. App. 688, 690 (4) (402 SE2d 747) (1991) (no bad faith where police destroyed tape recording of meeting with defendant because it was unintelligible); Walker v. State, 264 Ga. 676, 681 (3) (449 SE2d 845) (1994) (“careless, shoddy and unprofessional investigatory procedures” which resulted in failure to preserve potentially relevant evidence did not amount to bad faith). In none of these cases was critical evidence destroyed after a court had ordered that the defendant have access to it.

       The Crime Lab, contained within the Division of Forensic Sciences, has no law enforcement authority. Jackson v. State, 208 Ga. App. 391, 394 (430 SE2d 781) (1993).

       The reference to Smith v. State, supra, was made as persuasive authority on the issue here. In Smith, due process was argued and ruled upon. The Supreme Court held that, even when exculpatory evidence had been destroyed, where there had been no showing of bad faith by police, no due process violation had occurred.

       Blackwell could have sought testing for nine months following his indictment. He did not. Depending on whom you believe, he could have sought testing for one month after the court’s order was entered. He did not. The crime lab keeps tested urine samples for 12 months and then destroys them. This is their policy. There is nothing “fundamentally unfair” about it. The correctness of this policy does not turn on the facts of any one particular case. The law permits the crime lab to promulgate such rules and requires prosecutors and defendants alike to work within them.

       Evidence that is within the possession, custody, or control of the Forensic Sciences Division of the Georgia Bureau of Investigation or other laboratory for the purpose of testing and analysis may be examined, tested, and analyzed at the facility where the evidence is being held pursuant to reasonable rules and regulations adopted by the Forensic Sciences Division of the Georgia Bureau of Investigation or the laboratory where the evidence is being held.
      OCGA § 17-16-4 (3).

        Milton v. State, 232 Ga. App. 672, 678-679 (6) (503 SE2d 566) (1998) (“In dealing with the failure of the state to preserve evidence which might have exonerated the defendant, a court must determine both whether the evidence was material and whether the police acted in bad faith in failing to preserve the evidence.”) (punctuation omitted; emphasis supplied). Accord Pickens v. State, 225 Ga. App. 792, 799 (5) (484 SE2d 731) (1997); Nichols v. State, 221 Ga. App. 600, 603 (6) (473 SE2d 491) (1996); Brantley v. State, 199 Ga. App. 623, 624 (1) (405 SE2d 533) (1991); Lynott v. State, 198 Ga. App. 688, 690 (402 SE2d 747) (1991).

       Two schools of thought have evolved over the last 12 years in state courts regarding the failure-to-preserve cases of Trombetta and Youngblood. Georgia and many of our sister states have determined that Trombetta and Youngblood must be read together and that constitutional materiality and bad faith must both be shown. United States v. Femia, 9 F3d 990, 993 (1st Cir. 1993); United States v. Jobson, 102 F3d 214, 218 (6th Cir. 1996); State v. Berkley, 567 A2d 915 (Me. 1989); State v. Garcia, 643 A2d 180 (R.I. 1994); State v. Dulaney, 493 NW2d 787 (Iowa 1992); State v. Graham, 118 N.C. App. 231 (454 SE2d 878) (1995); Steese v. State, 114 Nev. 479 (960 P2d 321) (1998); State v. Ortiz, 119 Wn.2d 294 (831 P2d 1060) (1992). See also People v. Harris, 182 Ill.2d 114 (695 NE2d 447) (1998), wherein Illinois adopts Youngblood’s bad faith requirement three years after People v. Newberry, 166 Ill.2d 310 (652 NE2d 288) (1995), cited by the majority herein, and authored by the two Justices who dissented in People v. Newberry.

      The position now advocated by the majority is taken directly from the second school of thought which was rejected by our Supreme Court when it endorsed the two-prong requirement of “constitutional materiality” and “bad faith” in order to establish a due process violation.