text:
    A00A1162.
    CONGER v. THE STATE.
    (537 SE2d 798)
   Miller, Judge.

Shane Conger appeals his conviction for aggravated child molestation, alleging insufficiency of the evidence and two errors: (1) the trial court improperly injected opinion into the jury charge, and (2) the trial court erred in rejecting his claim that trial counsel’s actions constituted ineffective assistance. Trial counsel allegedly failed to (1) timely view and inform Conger of videotaped evidence, (2) make clear to Conger the implications of not requesting a jury charge on the lesser offense of child molestation, (3) redact portions of evidence from a defense exhibit, (4) reserve objections to the jury charges, and (5) enunciate and communicate clearly. We hold the evidence was sufficient, discern no errors, and affirm.

1. Conger argues the general grounds and specifically claims that the failure to put on evidence that he had gonorrhea precluded a guilty verdict. The four-year-old victim here testified that Conger removed her underwear, placed his private part on her private part, and then moved his around. Combined with the evidence of her exhibiting symptoms of gonorrhea within days thereafter, as well her immediate outcry to her mother and grandmother, this evidence sufficed to sustain a conviction for aggravated child molestation, even without evidence that Conger had gonorrhea.

2. Conger claims certain statements in the jury charge were opinionated statements on the evidence in violation of OCGA § 17-8-57. Conger failed to object or to reserve exceptions to the jury charge. “If the trial court asks whether or not there are any objections to the charge, counsel must either state his objections or reserve his right to object on motion for new trial or on appeal.” As in Pruitt v. State, the court here asked defense counsel whether he had any objections to the charge, to which he responded, “None, Your Honor.” Conger waived his right to object to the charge on appeal.

Regardless of whether an objection was made, we review allegedly erroneous charges to determine whether there has been a substantial error in the charge which was harmful as a matter of law. The allegedly erroneous language here was:

Read the indictment now and I think that you’ll see that the Defendant has been charged with aggravated child molestation. First of all you have child molestation, then you have the injury to the child, which in this case has to be the gonorrhea, does it not? I mean, that would be the logical thing that you would be deciding. Did an act of child molestation take place, and did that act of child molestation injure the child to make it aggravating [sic] child molestation [?]

The rhetorical question — “which in this case has to be the gonorrhea, does it not?” — did not inject opinion into the charge but only explained the injury requirement of the charge of aggravated child molestation. The trial judge pointed out that the jury would be deciding whether the injury of gonorrhea occurred and whether it resulted from any molestation which they found; the judge did not state that an injury had in fact taken place. Moreover, the court emphasized later that by no ruling or comment had the court ever intended to express any opinion upon the facts of the case, upon the credibility of the witnesses, upon the evidence, or upon the guilt or innocence of Conger. We discern no error here, substantial or otherwise.

3. Conger contends that his counsel provided ineffective assistance. To prove this, at the new trial hearing he was required to prove that counsel’s performance was deficient and that this prejudiced his defense. “The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.”

(a) Conger first complains that his counsel failed to timely view and inform him of the State’s videotape of a doctor’s interview with the child. Here, counsel had a detailed summary of the contents of the tape some time before trial and also viewed the tape just before trial. Failure to watch a videotaped statement until shortly before trial is not ineffective assistance, particularly where the trial counsel had detailed information as to its contents. And assuming that it were deficient performance for trial counsel not to inform Conger of the videotape, Conger’s general argument that had he known of the videotape he may have made better and more informed decisions does not meet his burden of showing prejudice.

(b) Conger next complains that his counsel erred in failing to discuss with him whether to request a jury charge on the lesser offense of child molestation. Here trial counsel testified that the decision not to request the jury charge was part of a “win-it-all-or-lose-it-all” trial strategy, which he discussed repeatedly with Conger and with which strategy Conger agreed. The trial judge as the finder of fact was authorized to believe trial counsel over Conger.

(c) Conger contends that trial counsel’s failure to redact portions of a large medical record, introduced as a defense exhibit, fell below the professionally reasonable standard. Specifically, Conger asserts that trial counsel failed to redact three statements implicating Conger as the perpetrator. But trial counsel testified that he consciously chose not to redact the comments as a matter of trial strategy. He felt that redactions would cause the jury to believe that Conger was hiding something. Strategic choices made after thorough investigation are “virtually unchallengeable.”

(d) Conger argues that his counsel erred in failing to reserve objections to the charge. He claims that this precluded him from complaining about the judge’s comments discussed in Division 1 above. He is correct. In Division 1, we concluded the judge’s comments were not inappropriate and were therefore unobjectionable.

(e) Conger contends that his trial counsel was unable to enunciate and communicate well enough to present an effective case. Conger points to the court reporter’s testimony that she found it difficult to understand trial counsel at times. But the judge had the opportunity of hearing trial counsel speak and thus could make his own determination in this regard. Moreover, Conger points to no portion of the transcript showing unintelligible communications. “The successful claim for ineffectiveness of trial counsel rests upon specific errors made by counsel. . .” and does not rest upon general claims of ineffective speaking unsupported by the record.

Decided July 28, 2000.

Emmett J. Arnold TV, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Neal v. State, 210 Ga. App. 522, 523 (1) (436 SE2d 574) (1993). For example, Conger could have had any gonorrhea treated before being picked up by police.

       “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.”

       (Citation omitted.) Pruitt v. State, 258 Ga. 583, 590 (373 SE2d 192) (1988).

       Id.

       OCGA § 5-5-24 (c).

        Strickland v. Washington, 466 U. S. 668, 689-693 (III) (104 SC 2052, 80 LE2d 674) (1984); Rogers v. State, 195 Ga. App. 446, 447 (2) (394 SE2d 116) (1990).

       (Citation omitted.) Jackson v. State, 209 Ga. App. 53, 56 (7) (432 SE2d 649) (1993).

       See Gentry v. State, 235 Ga. App. 328, 330-331 (4) (508 SE2d 671) (1998).

       See Evans v. State, 233 Ga. App. 879, 880 (2) (506 SE2d 169) (1998).

        Buice v. State, 239 Ga. App. 52, 61 (6) (b) (520 SE2d 258) (1999).

        Strickland, supra, 466 U. S. at 690.

       Cf. Turner v. State, 237 Ga. App. 642, 645 (4) (516 SE2d 343) (1999) (based on an all or nothing defense, not ineffective assistance of counsel when trial counsel failed to reserve objections to the jury charge); Binion v. State, 222 Ga. App. 333, 334-335 (3) (474 SE2d 208) (1996) (failure to reserve exceptions to jury charge was part of trial counsel’s all or nothing strategy and did not afford defendant the right to a new trial).

        Kelly v. State, 267 Ga. 252, 254 (2) (477 SE2d 110) (1996).


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A00A1238.
    DAVIS v. THE STATE.
    (538 SE2d 67)
   Johnson, Chief Judge.

In the early morning hours of September 1, 1996, a van driven by 16-year-old Charles Davis, Jr. left the roadway and collided head-on with a tree. As a result of the collision, a fire started in the van. Spilled painting supplies in the back of the van caused the fire to spread rapidly throughout the vehicle. Davis survived the crash, but Amanda Farmer and Carrie Clowes, two passengers, died as a result of injuries they received when the van struck the tree. It was not possible to remove two other passengers, Davis’ sister and Tennyson Clark, from the van. They died from smoke inhalation and/or bums from the fire.

Among other offenses, Davis was charged with four counts of first degree vehicular homicide. A jury found him guilty of first degree vehicular homicide by reckless driving in the deaths of Farmer and Clowes and guilty of second degree vehicular homicide in the deaths of his sister and Clark. He was also convicted of driving without a license and driving with a suspended license.

Davis appeals, claiming that the verdicts are mutually exclusive, that confidential psychiatric records were erroneously admitted into evidence at his trial, that the court improperly failed to charge the jury on proximate cause, and that the state’s closing argument was improper. We find these arguments to be without merit and thus affirm Davis’ convictions.

1. Davis contends the verdicts finding him guilty of first degree vehicular homicide in the deaths of Farmer and Clowes are mutually exclusive of the verdicts finding him guilty of second degree vehicular homicide in the deaths of his sister and Clark. According to Davis, the verdicts are mutually exclusive because by finding second degree vehicular homicide, the jury must have found that he did not drive recklessly, thereby excluding his conviction for first degree vehicular homicide. Although the verdicts may be inconsistent, they are not mutually exclusive.

The statutory definition of second degree vehicular homicide is as follows:

Any person who causes the death of another person, without an intention to do so, by violating any provision of this title other than subsection (a) of Code Section 40-6-163 or subsection (b) of Code Section 40-6-270 or Code Section 40-6-390 or 40-6-391 or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the second degree when such violation is the cause of said death. . . .

Given this definition, a finding of second degree vehicular homicide does not mandate a conclusion that a driver did not drive in a reckless manner. A jury could believe that although the driver was reckless, that reckless driving did not cause the particular death. Instead, a jury might conclude that some other traffic offense caused a particular victim’s death.

It is undisputed that Davis’ sister and Clark died as a result of the fire, not directly because of the impact. The evidence shows that in all likelihood these two victims would have survived the results of Davis’ reckless driving had there been no fire. The verdicts suggest that the jury wanted to find some lesser degree of culpability for these two deaths, and they did this in the only way presented to them: they found that some other traffic offense caused the deaths. In fact, Davis’ attorneys argued during the course of the trial that some traffic offense other than reckless driving caused all four of the victims’ deaths. While we cannot know the basis for the jury’s decision, we cannot say that the verdicts are mutually exclusive because there is sufficient evidence that another traffic offense occurred (such as speeding or failure to maintain lane) and that this offense could have caused the deaths of Davis’ sister and Clark.

While the jury’s verdicts are not mutually exclusive given the statutory definitions of first and second degree vehicular homicide, the verdicts may be characterized as inconsistent. However, it is well established that this State has abolished the inconsistent verdict rule. The abolishment of this rule is consistent with the principle that it is not generally within the trial court’s power to make inquiries into the jury’s deliberations or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts. Moreover, to the extent that these verdicts are inconsistent, the inconsistency inured to Davis’ benefit because there was legally sufficient evidence from which the jury could have found him guilty of first degree vehicular homicide as to all four victims. This enumeration of error is without merit.

2. Davis contends the trial court erred in denying his motion for new trial based on the admission into evidence of confidential psychiatric records. These psychiatric records consist of three pages of state’s Exhibit 10, which included 199 pages of medical records. The record shows that this was Davis’ second trial on these charges. His first trial ended in a mistrial. Both the state and Davis’ attorneys believed the exhibit was the same redacted exhibit which had been admitted during the first trial. Davis’ attorneys objected to the admission of the exhibit during this second trial on the basis that the exhibit contained hearsay. The trial court gave Davis’ attorneys an opportunity to review the exhibit and object to any particular documents which they might want excluded.

The following afternoon, the trial court instructed the parties to review the evidence that was to go to the jury room. One of Davis’ attorneys stated: “Here are the medical records we’ve gone through. I think this needs to be taken out.” “This” concerned a reference to Davis’ use of marijuana. Davis’ attorneys did not object to the three pages of psychiatric records cited in the appellate brief or to the admission of any psychiatric records. It is well settled that if no objection is made in the trial court or if the only objection made is not legally sound, the trial court commits no reversible error in allowing the evidence to be submitted to the jury. By failing to object to these portions of the exhibit after being given an opportunity to review the exhibit, Davis has waived any error as to the admission of the exhibit and the psychiatric records contained therein.

Davis next argues that his trial attorneys were ineffective in failing to object to the admission of the psychiatric records. In order to prevail on his ineffective assistance of counsel claim, Davis has the burden of showing that his trial attorneys’ performance fell below a reasonable standard of conduct and that there was a reasonable probability that the outcome of the case would have been different but for the deficient performance of his attorneys. The trial court’s finding that Davis was afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.

In judging his trial attorneys’ performance, it is “appropriate to outline generally the circumstances surrounding [Davis’] trial representation.” Davis was represented by two experienced trial lawyers in this case and in the previous trial of the same case. In fact, his attorneys’ performance in the previous case was so effective that the jury was unable to reach a verdict. At the time of the hearing on Davis’ motion for new trial, attorney Darrell Greene had been practicing law since 1963 and had participated in over 500 jury trials, with more than half of these consisting of criminal jury trials. Attorney Marc Celia had been practicing law since 1981 and had tried over 100 criminal jury trials. He had represented 13 individuals in which the state was seeking the death penalty, and only one of those individuals was sentenced to death by the jury. Celia spent approximately 39 hours in court and 102 hours out of court representing Davis. Davis’ trial attorneys filed a number of discovery requests, filed requests to charge, requested a charge on lesser included offenses, made a motion for a directed verdict, and filed a motion for arrest of judgment and mistrial. The attorneys also filed an ex parte motion for funds to hire an expert. Throughout the course of the trial, Davis’ trial attorneys cross-examined the witnesses, attempted impeachment with their transcripts from the previous trial, and made objections in the case. “Clearly, it cannot be said here that counsel failed to function in any meaningful sense as the government’s adversary.”

Moreover, the trial attorneys were not ineffective for failing to object to the psychiatric records. While one critical mistake could result in a finding that counsel had been ineffective, here the overall record shows that Davis had two experienced, very competent, and aggressive trial lawyers. Davis’ lawyers investigated the case with the assistance of private investigators, they hired and consulted experts, they were well prepared and thoroughly cross-examined the state’s witnesses, they presented well-reasoned legal arguments in pretrial hearings and during trial, they presented numerous witnesses of their own, and they had cogent responses to every aspect of the state’s case. In Chapel, the Supreme Court found that even though trial counsel was deficient in forgetting to present a defense witness who would have supported the theory of defense and impeached a state’s witness, the defendant failed to meet the difficult prejudice component of Strickland v. Washington that the outcome of the trial would have been different but for trial counsel’s deficiency.

In the present case, Davis’ trial attorneys acknowledge that Davis’ psychiatric records should have been removed from the exhibit containing the medical records. In fact, both attorneys believed that Exhibit 10 was being sent to the jury in the same condition as it went out with the jury in the first trial, with these pages redacted. However, we do not find that the admission of these records unduly prejudiced Davis. Other than the psychiatrist’s opinion that Davis was an attention seeker, none of the conclusions in the psychiatric records address the basic issues in the case: whether Davis’ violation of a traffic law caused the victims’ deaths and, if so, which traffic law Davis violated. The psychiatrist’s conclusion regarding Davis’ attention-seeking behavior was cumulative of a witness’ testimony that Davis would do just about anything to get attention. And Davis’ feelings of guilt were consistent with the fact that he acknowledged some degree of culpability for at least two of the deaths; his defense theory was that he should be found guilty of second degree vehicular homicide, rather than first degree, with respect to the deaths of Farmer and Clowes. Contrary to Davis’ argument, conclusions regarding guilt about his sister’s death do not evidence to the jury that he felt “legally” guilty for her death. We cannot say that but for trial counsel’s failure to redact these three pages of psychiatric records, the outcome of the trial would have been different.

Moreover, Davis was represented by Greene, whom he retained. “Whenever a defendant selects his own counsel, that counsel truly represents the defendant and no mistake or error of his, made in good faith and with earnest and honest purpose to serve his client, can be made the basis of a claim of reversible error.” The trial court did not err in concluding Davis’ trial attorneys rendered effective assistance of counsel.

3. Davis claims the trial court erred in failing to give a charge on proximate cause. The charge in question was requested by the state, and the court declined to give the charge over the state’s objection. Davis did not join in the state’s request or object to the failure to give the charge. Therefore, he has not preserved this issue for appeal.

Davis also claims the jury should have been charged on independent intervening cause. However, no request for such a charge was made by either party. Thus, this issue was not preserved for appeal.

In an effort to circumvent the waiver issue, Davis argues that his attorneys were ineffective because they failed to request charges on proximate cause and independent intervening cause. As we noted in Division 2, in order to prevail on his ineffective assistance of counsel claim, Davis has the burden of showing that his trial attorneys’ performance was deficient and that the deficient performance so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for the deficiency.

The record shows that the trial court informed the jury of all the counts against Davis, specifically noting that the counts charged Davis with first degree homicide in that he “did unlawfully, without malice aforethought, cause the death . . . through the violation of certain code sections. . . .” The trial court further charged the jury that no person shall be found guilty of any crime committed by misfortune or accident where there was no criminal scheme, undertaking, or intent. The jury was then charged in the language of OCGA § 40-6-393 (a), including the requirement that the accused “causes the death of another person” by violating any of the three statutes charged in the indictment. The trial court also charged the jury with regard to OCGA § 40-6-393 (b):

Whoever shall cause the death of another person without any intention to do so by violation of the statute other than the reckless driving and DUI statutes that were read shall be guilty of homicide by vehicle in the second degree when such violation is the cause of said death.

At the end of the charge to the jury, the trial court read from the verdict form, specifically noting once again that homicide by vehicle in the first degree consists of the accused unlawfully, without malice aforethought, causing the death of a victim through the violation of one of the three Code sections charged: reckless driving, driving with an unlawful alcohol level, and driving under the influence of alcohol. In addition, the trial court noted throughout his charge to the jury that the state had to prove each element of the offense beyond a reasonable doubt. This charge was clearly adequate.

Moreover, Celia testified that regardless of the legal viability of the state’s request to charge on proximate cause, he did not want a charge on proximate cause because he believed such a charge can be misinterpreted by a jury to mean less than beyond reasonable doubt. It is well established that trial counsel’s decisions on matters of tactics and trial strategy, even if unwise, do not amount to ineffective assistance of counsel. The trial court’s conclusion that Davis received effective assistance of counsel in this regard is not clearly erroneous.

As for Davis’ argument regarding trial counsel’s failure to request a charge on intervening cause, such a charge was not warranted under the facts of this case. The doctrine of intervening cause involves acts of a third party or victim which arguably cause the death of the victim. In the present case, there was no independent intervening cause or actor. Contrary to Davis’ contention, the presence of painting supplies in the van does not constitute an intervening cause. The presence of the painting supplies did not cause the deaths. While the supplies accelerated the spread of the fire, they did not cause the fire. But for Davis’ actions, the fire would never have started.

4. Davis asserts that it was error for the state to argue in closing that Davis’ failure to have a driver’s license was, standing alone, sufficient to convict him of reckless driving. While Davis’ trial counsel did not object to any of these comments during the state’s closing argument, we will address the issue since Davis claims he was denied effective assistance of counsel because his trial counsel failed to object.

At the outset, we note that the prosecutor did not argue that driving without a license, on its own, was sufficient to prove reckless driving. The prosecutor was merely discussing the elements of reckless driving and giving examples of how Davis exhibited reckless disregard for the safety of others. Furthermore, according to trial counsel, Celia briefly thought about objecting but felt that the state’s argument was weak and ridiculous and “didn’t think that the judge would tell him not to make it.” Given the fact that he had a chance to address the argument in his closing, Celia made a strategic decision not to object. Celia’s decision not to register his objection, but to address the issue in his closing argument, was a tactical decision that does not amount to a deficient performance.

Decided July 28, 2000

Strongwater & Cherniak, Leeza R. Cherniak, Jennifer R. Kiser, for appellant.

Patrick H. Head, District Attorney, Frank R. Cox, Maria B. Golick, Assistant District Attorneys, for appellee.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       See, e.g., Gutierrez v. State, 235 Ga. App. 878, 880 (2) (510 SE2d 570) (1999); Dumas v. State, 266 Ga. 797 (471 SE2d 508) (1996); Camsler v. State, 211 Ga. App. 826 (440 SE2d 681) (1994).

       (Emphasis supplied.) OCGA § 40-6-393 (b).

        Huntley v. State, 271 Ga. 227, 229-230 (3) (518 SE2d 890) (1999).

       See Mincey v. State, 237 Ga. App. 463, 464 (1) (515 SE2d 433) (1999).

       See Hunter v. State, 202 Ga. App. 195, 196 (3) (413 SE2d 526) (1991).

       See id.; Carradine v. State, 234 Ga. App. 330, 331 (506 SE2d 688) (1998); Foster v. State, 226 Ga. App. 334, 335 (1) (486 SE2d 635) (1997).

        Milner v. State, 271 Ga. 578, 579 (2) (522 SE2d 654) (1999).

        Hassan v. State, 231 Ga. App. 783, 784 (1) (500 SE2d 644) (1998).

        Cook v. State, 255 Ga. 565, 578-579 (17) (340 SE2d 843) (1986).

       (Citation and punctuation omitted.) Id. at 579.

       See Chapel v. State, 270 Ga. 151, 158 (9) (510 SE2d 802) (1998); see also Carter v.

        State, 176 Ga. App. 632, 633, n. 1 (337 SE2d 413) (1985).

       466 U. S. 668, 694 (104 SC 2052, 80 LE2d 674) (1984).

       Attorney Marc Celia was appointed by the trial court to assist Greene in representing Davis shortly before Davis’ first trial due to Greene’s health problems at the time. However, both Greene and Celia participated in both trials.

       (Citation omitted.) Scott v. State, 178 Ga. App. 844 (1) (344 SE2d 764) (1986); Donaldson v. State, 180 Ga. App. 879, 880 (3) (350 SE2d 849) (1986).

        Rittenhouse v. State, 272 Ga. 78, 79 (2) (526 SE2d 342) (2000).

       Id.

        Hassan, supra.

       See Mote v. State, 212 Ga. App. 551, 553 (2) (442 SE2d 799) (1994) (physical precedent only).

        Scott v. State, 238 Ga. App. 258, 260 (2) (518 SE2d 468) (1999).

       See, e.g., Howard v. McFarland, 237 Ga. App. 483, 488 (3) (b) (515 SE2d 629) (1999) (physical precedent only); Harrison v. Jenkins, 235 Ga. App. 665, 666 (1) (510 SE2d 345) (1998).

        Moore v. State, 242 Ga. App. 249, 252 (1) (b) (529 SE2d 381) (2000); Richards v. State, 232 Ga. App. 584, 588-589 (5) (502 SE2d 519) (1998).


author: Miller, Judge.

text:
    A00A1328.
    WOODWARD v. THE STATE.
    (537 SE2d 791)
   Miller, Judge.

After a bench trial, William Woodward was convicted of possession of cocaine, driving without insurance, and driving while his license was revoked. He appeals, challenging the denial of his motion to suppress.

Upon review of the denial of a motion to suppress, the appellate court construes the evidence in the light most favorable to the trial court’s judgment, and its findings of fact based on conflicting evidence must be accepted unless clearly erroneous. So construed, the evidence shows that police officers were observing and following Woodward’s truck when he made “an abrupt right turn into a driveway” without signaling. Officers then stopped Woodward, and when asked for his driver’s license and proof of insurance, Woodward replied he had neither. One of the officers then asked Woodward how much “dope” he had in the vehicle, to which Woodward replied “a little bit.” Woodward indicated where the drugs were in the vehicle, and officers recovered what was later tested to be cocaine. The trial court denied the motion to suppress, finding that the stop of Woodward’s vehicle was not pretextual in that he committed the traffic offense of failing to use a turn signal in violation of OCGA § 40-6-123.

Woodward argues that he was not required to use a turn signal in this circumstance and that there is no testimony that his failure to signal endangered anyone’s safety. In support of this assertion, Woodward cites Clark v. State, which is not controlling as it is physical precedent only. Moreover, Clark is distinguishable in that the police officer in that case was 300 feet behind the defendant’s vehicle. And “in ruling that the defendant was not required to use his turn signal, this Court stated that this type of exit ramp is designed to emerge from the outside traffic lane and allows vehicles to enter safely from that lane without the use of a turn signal when no other vehicles are in the area.” In Clark, it was undisputed that there were no other cars in the vicinity.

Here, however, it is undisputed that the officers’ car was immediately behind Woodward’s vehicle, and Woodward himself testified that he was aware that the officers were behind him. Although Woodward testified that he did in fact use his turn signal, the credibility of the witness and the weight to be given his testimony rest with the trier of fact.

In accordance with OCGA § 40-6-123, Woodward was required to use his signal to alert the officers behind him of his intention to turn right. Upon observing Woodward commit a traffic offense, the officers were authorized to stop him.

Woodward also contends that the officer did not conduct a mere traffic stop investigation but instead immediately and without articulable suspicion expanded the scope of the investigation by inquiring whether Woodward had drugs in his vehicle. Once it was evident that Woodward had no license or insurance, the officers were empowered to arrest Woodward and to conduct a vehicle search pursuant to a lawful arrest, whereupon the cocaine would have been discovered. Therefore, any alleged error on the part of the officers in questioning Woodward is overshadowed by the inevitable discovery of the cocaine.

The court did not err in denying the motion to suppress.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

Decided July 28, 2000

Gilbert J. Murrah, for appellant.

J. Brown Moseley, District Attorney, Minerva S. Cansino, Assistant District Attorney, for appellee.

        Roberts v. State, 242 Ga. App. 120 (527 SE2d 617) (2000).

       208 Ga. App. 896 (432 SE2d 220) (1993) (physical precedent only).

       Court of Appeals Rule 33 (a).

        Clark, supra, 208 Ga. App. at 898 (1).

       (Punctuation omitted.) Trippe v. State, 219 Ga. App. 250-251 (464 SE2d 655) (1995), citing Clark, supra, 208 Ga. App. at 898 (1).

       Id.

        State v. Aguirre, 229 Ga. App. 736, 737 (494 SE2d 576) (1997).

        Trippe, supra, 219 Ga. App. at 251.

        Harris v. State, 239 Ga. App. 537, 540 (2) (a) (521 SE2d 462) (1999); Buffington v. State, 229 Ga. App. 450, 451 (494 SE2d 272) (1997) (“if the arresting officer witnessed the driver breaking even a relatively minor traffic law, a motion to suppress under the Fourth Amendment arguing that the stop was pretextual must fail”) (citation omitted).

       See Vega v. State, 236 Ga. App. 319, 320 (512 SE2d 65) (1999).

       See Gearin v. State of Ga., 218 Ga. App. 390, 391 (1) (461 SE2d 562) (1995) (when evidence would inevitably be discovered without reference to police error, the evidence is admissible).


author: Phipps, Judge.

text:
    A00A1373.
    BRINSON v. THE STATE.
    (537 SE2d 795)
   Phipps, Judge.

Lashawn Brinson appeals his conviction on two counts of armed robbery and one count of attempted armed robbery. Brinson asserts as error the trial court’s failure to charge on the lesser included offense of robbery by intimidation and its use of the word “accessory” in its charge on parties to a crime. Brinson also claims the evidence was insufficient to support the verdict. Because we find no error in the jury charge and find the evidence was sufficient to find Brinson guilty beyond a reasonable doubt, we affirm.

On July 27, 1998, at approximately 1:00 a.m., Gail Blasingame, Steve Bowers and Kathi Besing left the Bayou Café in Savannah and began walking down River Street toward the Marriott Hotel. As they passed an alley, three young men ran out in front of them with their t-shirts over their faces and demanded money. Blasingame, Bowers and Besing at first thought it was a joke, but that changed when one of the men let go of his t-shirt and pointed a nine millimeter gun in Bowers’s face. One of the other men pointed a smaller gun toward Blasingame. Bowers then gave the men the money in his pocket ($10-12). When Blasingame told them she had no money, the man with the nine millimeter gun approached her. The third man took $25 from Besing and grabbed her around the neck to try to wrestle her jewelry from her. Besing screamed, and the men fled.

Blasingame, Bowers and Besing went to the hotel, told the security guard they had been robbed and asked him to call the police. They gave a description of the three men at that time. Based on that description, the police were able to locate Brinson and bring him to the hotel for identification. Approximately 30 minutes after the robbery, Blasingame and Bowers positively identified Brinson as one of the men who had robbed them and as the one with the nine millimeter gun. Shortly after Brinson’s arrest, the police found a nine millimeter gun in the bushes approximately ten feet from where he was arrested.

After his arrest, Brinson gave a recorded statement to the police. Brinson said that he was walking downtown and saw two other men, Willie and Junior, who were talking about pulling their guns out on people. According to Brinson, Willie had a nine millimeter gun, and Junior had a small .22 revolver. Brinson further stated that as they were walking toward River Street, Willie and Junior ran out in front of “the people,” pulled out their guns and asked for money. Brinson claimed that he did not have a gun and did not take any money. He said that he ran off when Willie grabbed one of the women around the neck. Brinson stated that, after the incident, he picked up the nine millimeter gun and threw it in the bushes near where he was arrested.

Brinson later gave another statement to a different officer. He said that he had called his mother and told her that he was only an accessory and that the police department was trying to pin the entire crime on him. The police were not able to locate the other men involved in the robbery.

At trial, Blasingame, Bowers and Besing all identified Brinson as one of the three men who had robbed them. They all testified that Brinson had a gun during the robbery and all recognized the gun found by the police as similar to the one used by Brinson in the robbery. None of the victims had any doubt that Brinson not only participated in, but orchestrated, the robbery.

Brinson was charged with the armed robbery of all three victims. The jury found him guilty of the armed robbery of Bowers and Besing and the attempted armed robbery of Blasingame. His motion for new trial was denied, and he appeals.

1. Brinson challenges the sufficiency of the evidence to support his conviction. He alleges that there were inconsistencies in the testimony regarding who had a gun and who took the money, that no one could positively identify the gun found by the police, and that the victims admitted they had been drinking before the robbery, which may have affected their recollection of the incident. Brinson also relies on his statement to the police that he did not participate in the robbery.

“On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies.” As an appellate court, we do not weigh the evidence, judge the credibility of witnesses or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged. Instead, we determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. “As long as there is some evidence, even though contradicted, to support each necessary element of the State’s case, the jury’s verdiet will be upheld. [Cit.]”

Viewed in the light most favorable to the prosecution, we find the evidence was sufficient to allow the jury to find Brinson guilty beyond a reasonable doubt. The victims consistently testified that Brinson participated in the robbery, used a gun and took Bowers’s money. Brinson admitted that he dropped one of the guns used in the robbery in bushes near where he was arrested, the precise location where the officers testified they found the weapon. All of the victims testified that the gun found by the police looked like the one Brinson used in the robbery. There is clearly some evidence to support each element of the State’s case, despite Brinson’s contradictory statement.

We find no merit in Brinson’s claim that the victims’ recollection of the incident was faulty. Based on the victims’ description, the police were able to apprehend Brinson quickly. The victims identified Brinson approximately 30 minutes after the robbery. There is no evidence that they had been drinking excessively.

2. Brinson complains about the trial court’s refusal to charge the jury on the lesser included offense of robbery by intimidation. He contends that he was entitled to the charge because he told the police that he did not use a gun during the robbery.

A person commits the offense of robbery by intimidation when, “with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another.” Robbery by intimidation is a lesser included offense in the offense of armed robbery.

“Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.” But if the evidence shows the completed offense, as charged, or no offense, the trial court is not required to charge the jury on the lesser included offense.

‘Where the uncontradicted evidence shows completion of the offense of armed robbery, and no evidence is presented to the effect that a weapon was not used in the robbery, the defendant is not entitled to a jury charge on the lesser included offense [ ] of. . . robbery by intimidation.” All of the victims testified that Brinson wielded a gun during the robbery. Even Brinson admitted to the police that both of his accomplices pointed guns at the victims and took their money. Thus, the evidence shows the completed offense of armed robbery. Because Brinson does not deny that his accomplices were armed, he is not entitled to a jury charge on the lesser included offense.

Decided July 28, 2000.

Darden & Gatch, Richard M. Darden, for appellant.

3. Brinson alleges that the trial court erred in giving the jury charge on parties to a crime. His claim is based on the following statement:

[L]et me also charge you about a law in Georgia called parties to a crime. In other states and on TV or something, you often hear this word accessory, like accessory before the fact or accessory after the fact, and all of that. We don’t use those terms in Georgia. The law is different from state to state.

The trial court then explained Georgia law on parties to a crime.

Brinson does not contend that the charge was inaccurate but claims that the judge’s use of the word “accessory” was inappropriate and harmful because of the police officer’s testimony that Brinson had told him that he told his mother that he was an accessory to the crime. He argues that the jury could have inferred that he was guilty because he admitted to being an accessory and the judge instructed them that in Georgia an accessory is called a party to the crime.

We do not interpret the charge in that manner. The court did not instruct the jury that an accessory is a party. The court charged the jury that Georgia does not use the term accessory and that one cannot be convicted of a crime in this state unless he is a party to the crime as defined by Georgia law.

The judge also instructed the jury that mere presence at the scene of the commission of a crime or mere association with persons involved in the commission of a crime will not authorize the jury to find a person guilty of the crime committed unless the evidence shows beyond a reasonable doubt that such person helped in the actual perpetration of the crime. The judge’s instruction was not a misstatement of the law, nor was it likely to confuse the jurors as to the appropriate standard for finding guilt.

Judgment affirmed.

Johnson, C. J., and Smith, P. J., concur.

Spencer Lawton, Jr., District Attorney, Kimberly Rowden, Assistant District Attorney, for appellee.

        Bohannon v. State, 208 Ga. App. 576 (1) (431 SE2d 149) (1993).

       Id.; Dismuke v. State, 261 Ga. 254 (1) (403 SE2d 812) (1991).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Kellibrew v. State, 239 Ga. App. 783 (1) (521 SE2d 921) (1999).

       OCGA § 16-8-40 (a) (2).

       OCGA § 16-8-41.

        Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994).

        Martin v. State, 268 Ga. 682, 685 (7) (492 SE2d 225) (1997).

       (Footnote omitted.) Jones v. State, 233 Ga. App. 362, 364 (504 SE2d 259) (1998).

       OCGA § 16-8-41 (a).

        Jones, supra at 364.


text:
    A00A1415.
    JOINER v. THE STATE.
    (537 SE2d 792)
   Miller, Judge.

Convicted of shoplifting, Linda Simpson Joiner moved for a new trial on the ground that she received ineffective assistance of counsel. After a hearing, the trial court denied the motion, and Joiner appeals. We affirm.

Under Strickland v. Washington, Joiner must show that her counsel’s performance was, in specified instances, deficient and that the deficient performance prejudiced her defense. The trial court’s determination of this question will not be disturbed unless clearly erroneous.

1. Joiner first contends that her trial counsel was ineffective in selecting a career prosecutor who ran a “tough on crime” campaign to sit on the jury. At the hearing on the motion for new trial, counsel explained that she chose this juror because she would have a better understanding of the unreliability of eyewitness identification — the main thrust of her client’s defense. Counsel also stated that she chose this juror because she “is forthright in her dealings. . . .” This is, in our view, perfectly valid trial strategy. Informed strategic choices are virtually unchallengeable. Based on trial counsel’s testimony explaining why she thought the juror would be a good choice, the trial court was authorized to find that Joiner was not denied effective assistance.

Moreover, even assuming counsel were deficient in selecting the juror, Joiner has not met the second prong of the Strickland test in that she has not shown that there was a reasonable probability that the jury would have reached a different verdict, absent the presence of this particular juror.

2. Joiner was previously found not guilty of another shoplifting charge alleged to have occurred two months prior to the incident charged in the present case. She contends that trial counsel’s introduction of a surveillance video, which was used in the previous trial in which Joiner was acquitted of shoplifting, improperly placed her character into evidence. Trial counsel testified that the defense in both cases was mistaken identity and that she admitted the videotape from the first trial because the jury in that trial indicated to her that they did not believe Joiner was the person depicted on the tape.

Decided July 28, 2000.

Summer & Summer, Elizabeth B. Reisman, for appellant.

Strategic and tactical decisions are the exclusive province of counsel after consultation with the client. The tactical decision to use the videotape, in the hope that the jury would have difficulty making an identification as did the jury in the previous case, is not any evidence that counsel’s performance fell outside the broad range of acceptable performance that members of the bar in good standing are presumed to render.

Joiner testified that trial counsel said that “she would use [the videotapes], but then she said she might not use them.” Joiner also testified that she did not give any input on this issue. So Joiner’s additional argument that trial counsel failed to discuss this issue with her is rebutted by Joiner’s own testimony.

3. Finally, Joiner argues that her trial counsel failed to inform her of plea offers and failed to inform her of the effect of recidivist punishment, specifically that Joiner would have to serve all ten years if convicted. Trial counsel testified unequivocally that she discussed the State’s many plea offers with Joiner on several occasions and specifically told her that the State was seeking recidivist punishment and that no portion of the ten-year sentence would be probated. Joiner denied that her counsel discussed these matters with her, but the credibility of the witness is a matter within the trial court’s discretion. The trial court, who found that Joiner’s testimony was not credible, was authorized to believe the testimony of trial counsel over that of Joiner.

We discern neither deficient performance by trial counsel nor prejudice to Joiner’s defense. Therefore, the court did not clearly err in denying Joiner’s motion for new trial based on ineffective assistance of counsel.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

Lydia J. Sartain, District Attorney, Jason J. Deal, Assistant District Attorney, for appellee.

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Williams v. State, 239 Ga. App. 598, 599 (2) (521 SE2d 650) (1999); Teat v. State, 237 Ga. App. 867, 869 (2) (516 SE2d 794) (1999).

        Green v. State, 242 Ga. App. 868, 872 (5) (b) (532 SE2d 111) (2000).

       See Concepcion v. State, 205 Ga. App. 138, 139 (421 SE2d 554) (1992).

        Teat, supra, 237 Ga. App. at 869 (2); Benefield v. State, 231 Ga. App. 80-81 (497 SE2d 650) (1998).

       See Teat, supra, 237 Ga. App. at 869 (2) (a).

        Curry v. State, 238 Ga. App. 511, 522 (5) (b) (519 SE2d 269) (1999).

       See id.


text:
    A00A1503.
    HEMIDI v. THE STATE.
    (537 SE2d 804)
   Johnson, Chief Judge.

A jury found Mohammed Hemidi guilty of armed robbery and possession of a firearm during the commission of a crime. Hemidi appeals, alleging (1) there was insufficient evidence to support his conviction, (2) a fatal variance existed between the evidence at trial and the indictment, (3) the trial court gave an improper jury charge in response to a jury question, and (4) the trial court improperly allowed his statement into evidence. Because we find that these contentions lack merit, we affirm.

1. Hemidi contends the state failed to prove he was guilty of the crimes beyond a reasonable doubt. We disagree. Pursuant to OCGA § 16-8-41 (a), an individual commits the offense of armed robbery when he, with intent to commit theft, takes property of another from the person or the immediate presence of another by use of an offensive weapon or any device having the appearance of such weapon. The offense of possession of a firearm during the commission of a felony is defined in OCGA § 16-11-106 (b) (1).

Viewed in a light most favorable to support the jury’s verdict the evidence shows that a witness pumping gas at a gas station noticed a black car near the pay phones. After paying for his gas, the witness stopped to use the pay phones. He observed the black car move from the phone area and saw three men get out of the car and enter the store. After finishing his phone call, the witness drove by the front of the store and saw the three men inside the store. The clerk was on his knees, and the tallest of the three men had a gun to the clerk’s head. The witness left the gas station and informed a police officer who was working off-duty as security for a nearby restaurant. The officer radioed a call to the police.

An officer responded to the call and saw Hemidi banging on the cash register with a gun. He also observed a dark-colored Ford Escort, with two men inside, come speeding out of the gas station with no headlights on and drive the wrong way down a one-way road. The officer radioed other officers about the fleeing car. He then observed Hemidi rim to the back of the store. When Hemidi was later brought out of the store, the officer identified Hemidi as the man he observed banging on the cash register with a gun. He also identified Hemidi in court as the individual he saw with the gun.

Another officer saw the small black car exiting the gas station at a high rate of speed. He pursued the car, which hit a curb and eventually stopped. Inside the car, officers found paper money, several rolls of pennies and some coin wrappers, toy trucks, cartons of cigarettes, and an empty rum bottle.

Two sergeants responded to the call and entered the store. They saw that the store was in disarray and heard a voice in the men’s restroom. They found the store clerk in the restroom and brought him outside. They subsequently located Hemidi hiding in a stall in the outside restroom of the service station. Hemidi was standing on the toilet with a gun in his hand. At trial, one of the sergeants identified Hemidi as the individual they discovered hiding with the gun.

The store clerk testified that three men came into the store and the tallest one put a gun to his head. The gunman asked the clerk how to open the register and ordered him to get down on his knees. The other two men left the store, and the gunman ordered the clerk to go into the bathroom and count to 100. When the clerk reached 20, he heard someone say “police,” and two officers took him outside. Later, the police brought Hemidi out of the restroom, and the store clerk identified him at the scene as the assailant. The men took cartons of cigarettes, toy trucks, and windshield washer fluid. At trial, the store clerk identified some rolls of coins and coin wrappers as being similar to ones taken from the gas station. He could not identify Hemidi as the gunman at trial but stated he was certain the man brought out of the store was the gunman.

A detective testified that he observed Hemidi after he was arrested. Although he smelled alcohol on Hemidi, he did not believe Hemidi was intoxicated. According to the detective, Hemidi’s speech was not slurred, his eyes were not glassy, and he was able to walk normally. One of the sergeants and the store clerk both testified that they did not smell any alcohol on Hemidi.

At the police station, Hemidi waived his Miranda rights and gave a statement to another sergeant. This sergeant testified that he determined Hemidi was not under the influence of alcohol. In Hemidi’s statement, which was read to the jury, he admitted committing the armed robbery and possessing the gun during the armed robbery. After reviewing his statement, Hemidi asked the sergeant to change the phrase “I didn’t want to kill him” to “I didn’t want to shoot him.”

Although Hemidi points to conflicts in the store clerk’s descriptions of Hemidi’s clothing and physique, it is the jury’s function, not the appellate court’s, to resolve conflicts in the testimony and determine the credibility of the witnesses. The evidence was sufficient to authorize a rational trier of fact to find Hemidi guilty beyond a reasonable doubt of armed robbery and possession of a firearm during the commission of a crime.

2. Hemidi contends a fatal variance existed between the evidence at trial and Count 2 of the indictment because the state failed to prove that he possessed a handgun. However, as discussed in Division 1, the state presented sufficient evidence to show that Hemidi possessed a handgun during the commission of the crime. The witness saw the tallest man holding a gun, and the store clerk identified Hemidi, the tallest man, as the one who pointed the gun at him. In addition, the officer who first responded to the scene observed Hemidi with a gun, and two sergeants discovered Hemidi hiding in the bathroom stall with a gun in his hand. There was no fatal variance between the indictment’s allegation and the proof at trial.

3. Hemidi contends the trial court erred in its recharge to the jury in response to a question. The recharge, however, was a correct statement of the law and was relevant to the jury’s question. Thus, the recharge was not erroneous.

After the jury had begun its deliberations, it sent a note asking, “When does a crime of armed robbery officially begin and end?” In response, the trial court conferred with counsel for both parties and charged the jury as follows:

The force or intimidation must either precede or be contemporaneous with the taking to prove armed robbery. In order to be armed robbery, the offensive weapon, if any, must be used by the defendant or by another under circumstances where the defendant was a party to the crime, and that use must be concurrent with the forcible taking. As the fact finders, you will determine whether an armed robbery occurred, and, if so, when it began and ended, and whether the defendant was responsible. In doing so, you would consider all of the instructions I’ve given to you this afternoon.

The first sentence was requested by Hemidi’s attorney, and when the trial court proposed the recharge, Hemidi’s attorney, without waiving any reservations, stated that the charge was “in the right direction, certainly.”

Clearly, when a jury requests a charge or recharge on a particular point, it is within the trial court’s discretion to give or not give additional instructions. Hemidi contends the recharge was error because it emphasized parties to a crime. However, because the recharge was legally correct and supported by the evidence, we find no abuse of the trial court’s discretion.

Decided July 28, 2000.

Michael S. Katz, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Kristin L. Wood, Assistant District Attorneys, for appellee.

4. Hemidi asserts the trial court erred in admitting into evidence his custodial statement because the evidence shows he was under the influence of alcohol when he gave the statement. We disagree. While one of the detectives did testify that he smelled alcohol on Hemidi, he further testified that he did not believe Hemidi was intoxicated. According to the detective, Hemidi’s speech was not slurred, his eyes were not glassy, and he was able to walk normally. In addition, one of the sergeants who responded to the scene and the store clerk both testified that they did not smell any alcohol on Hemidi, and the sergeant who took Hemidi’s statement testified that he determined Hemidi was not under the influence of alcohol. In fact, Hemidi’s statement belies his claim that he did not know what was going on. He not only provided a detailed statement about what happened, but he corrected the statement to make it more accurate.

Following a Jackson-Denno hearing, the trial court determined, based on a consideration of the totality of the circumstances, that Hemidi’s statement was freely and voluntarily given. This finding is supported by the evidence and is not clearly erroneous.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

        Byrd v. State, 236 Ga. App. 485, 486 (1) (512 SE2d 372) (1999).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Byrd, supra.

       See Miner v. State, 268 Ga. 67 (2) (485 SE2d 456) (1997); Patterson v. State, 264 Ga. 593, 594 (2) (449 SE2d 97) (1994).

        Miner, supra; Patterson, supra.

       See Christopher v. State, 269 Ga. 382, 383 (2) (497 SE2d 803) (1998) (although there was an odor of alcohol, the defendant did not appear to be intoxicated and spoke coherently); Willis v. State, 263 Ga. 597, 599 (2) (436 SE2d 204) (1993) (although defendant had a blood alcohol content of 0.19 at the time she made the statement, defendant was coherent and did not appear to be under the influence to the extent that she could not comprehend her rights).


author:
Barnes, Judge.
      Blackburn, Presiding Judge, Blackburn, Presiding Judge,

text:
    A00A0260.
    KEEFE et al. v. NORTHSIDE HOSPITAL, INC.
    (538 SE2d 61)
   Barnes, Judge.

Dennis and Rachel Keefe filed suit to enforce a settlement agreement with Northside Hospital, Inc. and appeal from the trial court’s grant of summary judgment to the hospital and the denial of their motion for summary judgment. Because we find the trial court erred in granting summary judgment to the hospital and denying the Keefes’ summary judgment motion, we reverse.

On appeal from the grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802-803 (500 SE2d 591) (1998). Viewed in this light, the record shows that the settlement at issue in this appeal relates to injuries Dennis Keefe received during a June 11, 1992 admission to the hospital. After the trial court dismissed the Keefes’ complaint for professional negligence against the hospital based upon their failure to comply with OCGA § 9-11-9.1 and this Court affirmed, Keefe v. Northside Hosp., 219 Ga. App. 875 (467 SE2d 9) (1996), the parties entered into settlement negotiations while the Keefes pursued a petition for certiorari to the Supreme Court.

On February 5, 1996, the Keefes’ attorney and the hospital’s attorney orally agreed to settle the Keefes’ claims against the hospital for $25,000. Both attorneys sent letters confirming the settlement the same day. The Keefes’ attorney wrote:

This will confirm that we have this day resolved the above captioned cause of action [Keefe v. Northside Hosp.] by settlement. The Defendant Northside Hospital, Inc. has agreed to pay the Keefes the sum of twenty-five thousand dollars ($25,000) to dismiss their case with prejudice, and forbear the seeking of certiorari to the Supreme Court of Georgia.

The hospital’s attorney wrote:

This letter confirms settlement of any and all claims that were or could have been raised as a result of Lawrence Dennis Keefe’s treatment at Northside Hospital during his June 11, 1992 admission. We will be forwarding to you our standard settlement package including the Release and Hold Harmless Agreement, Dismissal With Prejudice, Hospital Lien Affidavit and settlement check shortly. ... As you know, the settlement was with the understanding that Northside Hospital not be required to do any further legal work on this matter. Thus, we could not agree that any petition for cert be filed.

After receiving a release from the hospital, the Keefes’ attorney requested that a confidentiality provision be deleted. According to the hospital’s attorney, the changes requested by the Keefes’ attorney were made, and the attorneys for both parties agreed on the release language. As a result of the settlement, the Keefes’ attorney “abandoned all attempts to seek certiorari to the Supreme Court.”

Approximately two months after the settlement was negotiated, the Keefes fired their first attorney and retained a second attorney to conclude the settlement and pursue a legal malpractice action against their first attorney. Because the second attorney was concerned that the Keefes might release their legal malpractice action against their first attorney if they signed the current version of the release, he drafted a revised release and sent it to the hospital’s attorney.

Although this revised release simply clarified that the Keefes were not releasing any legal malpractice actions against their first attorney and summarized the parties’ contentions in the underlying lawsuit, the hospital refused to accept these revisions and insisted that the Keefes sign the release agreed upon by their first attorney. The revised release included language that the Keefes were releasing the hospital and all parties, other than their first attorney, in connection with Mr. Keefe’s June 11, 1992 admission to the hospital.

When the Keefes failed to sign the release insisted upon by the hospital, the hospital stopped payment on the settlement check it had issued and provided to the Keefes’ first attorney. After the Keefes settled their legal malpractice claim against their first attorney approximately nine months later, they signed the release insisted upon by the hospital and requested a check for $25,000.

When the hospital refused to abide by the earlier settlement, the Keefes filed suit to enforce it. After the parties filed cross-motions for summary judgment, the trial court granted the hospital’s motion and denied the Keefes’ motion. In its written order disposing of the motions, the trial court made the following findings:

(1) That a valid and binding settlement agreement was entered into between the parties on February 5, 1996; (2) That the plaintiffs attempted to renegotiate a portion of the agreement by adding additional language to a release previously agreed upon by the parties; (3) That the language added to the release was material; (4) That defendant had the right to insist on the original language of the release as agreed to; (5) That upon plaintiffs’ refusal to sign the agreed upon release, it was appropriate for the defendant to either rescind the agreement or move to enforce it; and (6) Defendant promptly notified plaintiffs of its intention to rescind the settlement agreement and did properly rescind.

The Keefes appeal from this ruling, contending the trial court erred when it failed to enforce their settlement with the hospital and denied their motion for summary judgment.

We agree with the trial court’s conclusion that the parties entered into a valid and binding settlement agreement on February 5, 1996, as do the parties to this appeal. We disagree with the trial court’s conclusion that the requested changes to the release were material and authorized the hospital to rescind the settlement agreement.

The changes requested by the Keefes had no impact upon the bargained-for settlement with the hospital, i.e., that in exchange for $25,000, the Keefes would (1) release all claims that could have been brought as a result of Mr. Keefe’s June 11, 1992 admission to the hospital, (2) forgo seeking certiorari in the Supreme Court, and (3) dismiss their case against the hospital. Nothing in the language of the original release would have prevented the Keefes from suing their first attorney for malpractice. In Lackey v. McDowell, 262 Ga. 185 (415 SE2d 902) (1992), the Supreme Court of Georgia held that: “[o]nly those parties named in the release will be discharged by that instrument. By ‘named,’ we mean being identified either by proper name or such other description as leaves no question of the identity of the party released.” (Punctuation omitted; emphasis in original.) Id. at 185. Since the Keefes’ first lawyer would not fall within the Supreme Court’s definition of a “named” released party in the original release, the revised release, which simply sought to ensure that the Keefes did not somehow release their claims against their first lawyer for legal malpractice, did not expose the hospital to any additional legal work or liability.

As a result, the changes in the revised release and the Keefes’ understandable reluctance, based upon advice of counsel, to sign a release without these changes did not authorize the hospital to rescind the settlement. Stacey v. Jones, 230 Ga. App. 213, 215 (2) (495 SE2d 665) (1998) (failure to comply with demands to forward check and release by a certain time and date was not grounds for rescission of settlement). Therefore, the trial court erred when it denied the Keefes’ motion for summary judgment to enforce the settlement and granted the hospital’s summary judgment motion.

Judgment reversed.

Eldridge, Phipps and Mikell, JJ., concur. Johnson, C. J., concurs in the judgment only. Pope, P. J., and Blackburn, P. J., dissent.

Blackburn, Presiding Judge,

dissenting.

Because Dennis and Rachel Keefe breached the settlement agreement regarding their medical malpractice claims and the settlement agreement was validly terminated thereafter, I believe that the trial court properly granted summary judgment to Northside Hospital. Therefore, I must respectfully dissent from the opinion of the majority.

On appeal, the Keefes contend that, despite the fact that they breached the original settlement agreement which had been fully and completely negotiated by them over a period of three weeks, they should nonetheless be allowed to change their minds after the breach and resurrect the contract which was terminated by Northside Hospital. This the Keefes cannot do.

OCGA § 13-5-8 provides: "A condition, precedent or subsequent, not complied with, insufficiency or failure of consideration, or any act of the opposite party, by which the obligation of the contract has ceased, may be pleaded as a defense.” Furthermore, where one party fails to show an adequate legal reason to excuse its nonperformance of contractual obligations, that party cannot recover against the other party under the expressed terms of the contract. See Clark’s Super Gas v. Tri-State Systems. Therefore, one party cannot breach a contract by refusing to abide by its terms, remain in breach for over a year, and overcome the defense of the other party that the obligations set forth under the contract were terminated and rescinded pursuant to the breach. Accordingly, the Keefes lost the right to enforce the settlement agreement with Northside Hospital when they wilfully refused to satisfy the conditions required by that agreement and Northside terminated same.

The facts of this case are simple and undisputed. From February 5, 1996 to February 21, 1996, the Keefes negotiated a settlement agreement with Northside Hospital. During this time, the Keefes fully negotiated their rights, suggesting certain changes to confidentiality provisions in Northside Hospital’s standard settlement package which were incorporated into the agreement. The Keefes, however, after fully reviewing the proposed agreement, requested no changes to the release clause contained therein. By February 21, 1996, the parties entered into the fully negotiated and binding agreement, which included Northside Hospital’s general release clause.

The Keefes agreed to settle their medical malpractice claim against Northside Hospital for the sum of $25,000. In return, the Keefes consented to sign Northside Hospital’s standard settlement package with the incorporated changes to its confidentiality clause, dismiss their case with prejudice, which had already reached this Court, and forbear their right to seek certiorari with the Supreme Court of Georgia. Northside Hospital explicitly demanded these obligations by the Keefes to ensure that it would “not be required to do any further legal work in the matter.”

In February 1996, Northside Hospital sent the settlement papers to the Keefes along with a check for $25,000, with the understanding that the check would not be negotiated until the settlement was signed and returned. Thereafter, the Keefes refused to sign the settlement agreement that they had negotiated despite repeated requests by Northside Hospital. Over two months after entering into the settlement, the Keefes fired their original attorney and filed a legal malpractice action against him and his law firm. The Keefes’ new attorney then notified Northside Hospital that the Keefes would not sign the settlement papers without modifications to the release clause, despite the fact that they had previously reviewed and accepted the release clause as it existed in the settlement agreement on February 21, 1996. The Keefes wished to alter the release clause to state that they released all claims “with the exception of legal malpractice claims against [their former attorney], which may raise claims against [such attorney] that could have originally been raised against Northside Hospital, Inc., and/or its employees.” The Keefes’ attorney contended that the modifications were necessary to protect the Keefes’ rights to proceed against their original attorney.

In response, Northside Hospital informed the Keefes’ new lawyer that it would not accept the proposed modifications, and, on May 14, 1996, Northside Hospital requested that the settlement draft be returned to them. The next day, Northside Hospital stopped payment on the settlement check.

Meanwhile, the Keefes proceeded with their legal malpractice action against their original attorney, which ultimately settled. Then, more than six months after the Keefes’ last correspondence with Northside Hospital, counsel for the Keefes’ original attorney wrote Northside Hospital to inquire whether the settlement offer, as originally agreed upon without the release modifications, was still available. That same day, Northside Hospital responded that no settlement offer remained as a result of the Keefes’ breach of the original offer and its notifications in May that it considered the contract terminated. Finally, on February 26, 1997, more than a year after Northside Hospital sent the settlement package to the Keefes, the Keefes returned an executed copy of the original agreement and demanded a check for $25,000. When Northside Hospital refused to pay, the Keefes initiated the underlying action to enforce the original settlement agreement.

By refusing to sign the original settlement agreement without further modifications, the Keefes breached their agreement with Northside Hospital. First and foremost, the Keefes had committed to sign the document as it existed, and they simply did not do so. In addition, they demanded new settlement terms which could result in additional legal work for Northside Hospital. The very process of negotiating the Keefes’ new release terms would require additional legal work. Furthermore, pursuant to the modified agreement proposed by the Keefes, Northside Hospital faced the possibility of being involved in a legal malpractice action which the Keefes contemplated bringing against their original attorney. Any such action would necessarily involve a consideration of the validity of the underlying claim against Northside and would require testimony and the involvement of its personnel, as well as additional legal fees. The issues it had sought to conclude by settlement would again be the subject of litigation involving Northside, directly or indirectly. North-side had already succeeded in having the Keefes’ case dismissed at the trial level, and this court had affirmed the dismissal. Keefe v. Northside Hosp. The only purpose in Northside’s settling of the case at this point was to eliminate the expenses and risk attendant with the certiorari process in this case and its involvement in other litigation arising out of the facts of this case. A review of the very language insisted upon by the Keefes demonstrates that Northside would not accomplish the finality it intended in settling the case.

Thus, the Keefes breached the contract when they refused to comply with the settlement they had negotiated and agreed to and simultaneously demanded other terms directly contrary to Northside Hospital’s interests. Because of this breach, Northside Hospital requested the return of the unsigned settlement agreement and stopped payment on the settlement check, thus terminating its obligations under the written contract. See OCGA § 13-5-8. As stated in the majority opinion, the trial court determined, inter alia, that “(6) [defendant promptly notified plaintiffs of its intention to rescind the settlement agreement and did properly rescind.” From this point, the Keefes no longer had a valid contract to enforce. Their breach of the contract alone released Northside from its obligation to perform thereunder. See Clark’s Super Gas, supra.

Stacey v. Jones, relied on by the majority, held that the oral agreement therein involved was not rescindable under the facts of that case based upon a delay in receiving the settlement check and a written settlement agreement in a timely fashion, because the subject contract failed to provide either that time was of the essence therein or specify a date for the receipt of such items. Jones did not address the issue raised in this case, that is, the effect of the breach of a written contract by a party’s failure to comply with the specific terms which it had negotiated. Thus, Jones has no application to this case.

Accordingly, I would affirm the trial court’s grant of summary judgment to Northside Hospital.

I am authorized to state that Presiding Judge Pope joins in this dissent.

On Motion for Reconsideration.

We have considered appellee’s motion for reconsideration and adhere to our opinion. Although the majority of the motion simply duplicates earlier arguments raised by appellee, appellee does point out facts, which both parties failed to include in their initial briefs, that were not addressed by either the majority or the dissent. Specifically, in addition to the changes discussed in our initial opinion, the revised release drafted by the plaintiffs’ second attorney also omitted five standard form paragraphs that were included in the original release.

Since the omission of these paragraphs also fails to materially change the settlement agreement between the parties, it did not authorize the hospital to rescind the settlement agreement. Again, the terms of the bargained-for settlement between the parties, as demonstrated by the letters between counsel, was that the Keefes would (1) release all claims that could have been brought as a result of Mr. Keefe’s June 11, 1992 admission to the hospital, (2) forgo seeking certiorari in the Supreme Court, and (3) dismiss their case against the hospital. In exchange for these terms, the hospital agreed to pay $25,000. Execution of every single paragraph in the hospital’s “standard settlement package” was not a condition of the settlement. In this case, the Keefes lived up to their end of the bargain by dismissing their case, forgoing certiorari in the Supreme Court, and agreeing to release all claims brought as a result of the 1992 hospital admission. The hospital, by arbitrarily insisting upon immaterial terms in a release and refusing to pay the $25,000 as agreed, has not lived up to its end of the bargain and cost itself the additional legal fees it sought to avoid by settlement.

Decided July 11, 2000

Reconsideration denied July 31, 2000

Davis, Zipperman, Kirschenbaum & Lotito, E. Marcus Davis, Christopher R. Smith, for appellants.

Goldner, Sommers, Scrudder & Bass, Susan V. Sommers, Glenn S. Bass, Tammy S. Skinner, for appellee.

Motion for reconsideration denied.

Blackburn, Presiding Judge,

dissenting.

Although I stand by my original dissent, I am troubled by certain conclusions reached by the majority on reconsideration of this case. First, there is no evidence of record that the omission of the five additional paragraphs by the Keefes was inadvertent. This is pure speculation by the majority. Second, execution of the settlement package negotiated and agreed to by the Keefes on February 21, 1996, was required by them, and, when they failed to comply, Northside Hospital had the right to terminate the settlement, which it did. Third, it cannot be said that the Keefes, who wilfully refused to sign the settlement they agreed upon, lived up to their end of the bargain. Finally, the majority acknowledges that a purpose of the settlement in this case was to prevent Northside Hospital from incurring any additional legal fees and that, as a result of the Keefes’ failure to sign the original agreement, such fees were incurred. Despite this acknowledgment, the majority continues to uphold the settlement, contending that Northside Hospital cost itself these fees which were actually caused by the Keefes’ breach.

Northside Hospital simply tried to enforce the settlement that both parties in this case freely agreed upon, and, when the Keefes breached, it validly terminated the agreement. The Keefes destroyed the bargain in this case. They should not be allowed to spontaneously resurrect it.

I am authorized to state that Presiding Judge Pope joins in this dissent on motion for reconsideration.

       The original release did not specifically name the Keefes’ first attorney as a released party and the more general description of the parties released was linked to claims arising out of Mr. Keefe’s care during his June 11,1992 hospital admission. Since the Keefes’ claims against their first attorney arose out of a different event, namely their first attorney’s failure to file an OCGA § 9-11-9.1 affidavit, their first attorney was not a “named” party who would have been discharged by the original release.

        Clark’s Super Gas v. Tri-State Systems, 129 Ga. App. 650 (200 SE2d 472) (1973).

        Keefe v. Northside Hosp., 219 Ga. App. 875 (467 SE2d 9) (1996).

        Stacey v. Jones, 230 Ga. App. 213, 215 (2) (495 SE2d 665) (1998).

       These paragraphs addressed choice of law, competency, reliance of releasors, reliance of releasees, and merger.

       It appears that these five paragraphs may have been inadvertently omitted from the revised release as they are the only paragraphs contained on page 3 of the original release. Moreover, until now, the parties never discussed or briefed the omission of these paragraphs.


author: Andrews, Presiding Judge.

text:
    A00A0723.
    TREGLOWN v. K-MART CORPORATION.
    (537 SE2d 173)
   Andrews, Presiding Judge.

Charles Treglown appeals from the trial court’s denial of his motion for new trial following the jury’s verdict for K-Mart Corporation on his loss of consortium claim. Mrs. Ailene Treglown was awarded $180,000 for injuries suffered when she fell in Wesson oil spilled in an aisle, and that judgment has been satisfied.

“Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motion for directed verdict and new trial will not be disturbed.” (Citations and punctuation omitted.) [Cit.]

MARTA v. Green Intl, 235 Ga. App. 419, 420 (1) (509 SE2d 674) (1998).

Here, the evidence was that Mrs. Treglown, then 43 years old, fell on July 23, 1995. She suffered a concussion, bruised knee, and broken right hip. The hip was operated on by orthopedic surgeon Dr. Klasson, who inserted pins. Mrs. Treglown was hospitalized for several days and then recuperated at home. Because of discomfort, the pins were removed on October 7, 1996. Dr. Klasson last saw her on November 21, 1996, at which time she had a full range of motion and was walking without assistance. Dr. Klasson’s opinion was that the hip had healed and he saw no reason why she could not have a normal life. There was no reason, in his opinion, that the injury should affect her physical relationship with her husband.

Mrs. Treglown was seen by Dr. Bell, another orthopedist, in December 1995 for complaints of pain in her right knee. Dr. Bell performed an arthroscopic exam and found some evidence of a bone bruise, but nothing of note. She was released by him to be seen'only as needed, and Dr. Bell opined that this injury should not cause any restrictions in her activity.

On February 28,1997, Mrs. Treglown saw Dr. Flandry, a neurologist, for pain in her back, right knee, and right hip. Dr. Flandry examined her and found a normal neurological exam. He injected her with steroids and prescribed physical therapy for some hip atrophy which was due to lack of use of her leg. Within a month, her condition was much better. Mrs. Treglown was also having some reflex sympathetic dystrophy, which Dr. Flandry expected to resolve.

Dr. Sloan, a sports medicine specialist, saw Mrs. Treglown on October 6, 1998, after a referral from Dr. Flandry for treatment of “possible reflex sympathetic dystrophy,” for which he prescribed nerve blocks.

Mrs. Treglown also sought a second neurological opinion from Dr. Stem on December 18, 1995, because of headaches and diminished concentration and memory. Dr. Stem reviewed her CT scan and MRI examination and examined her, finding an essentially normal neurology examination with minimal cognitive changes. He found no objective evidence of brain damage but opined that some patients seem to have persistent complaints until litigation over their injuries is completed. Dr. Stem saw Mrs. Treglown again in July 1997 and prescribed medication for headaches.

Dr. Pratt, a psychiatrist, saw Mrs. Treglown 13 times between September 26, 1995 and October 20, 1998. He diagnosed depression, an underlying obsessive compulsive personality, and post-traumatic stress disorder. According to Dr. Pratt, obsessive compulsive personalities are more prone to post-traumatic stress disorder than others. Of the five manifestations of depression identified by Dr. Pratt, he acknowledged that three of them were not related to her fall. He also acknowledged that the litigation might impede Mrs. Treglown’s ability to recover.

Regarding loss of consortium, Mr. Treglown testified that, since the accident, Mrs. Treglown’s personality had changed. Also, before the accident their sexual relationship had been good, but since then it had been “not much.”

Mrs. Treglown testified that she had previously done farm, yard, and housework but, due to her lack of energy and fatigue, she was no longer doing it. She had also helped Mr. Treglown in his private electrical business, which he did in addition to working for Georgia Power, but no longer did that. The Treglowns’ daughter and son-in-law lived with them, and the daughter had been taking care of the house since the accident. Mrs. Treglown acknowledged that she walked more since the accident than she had before and that the reason she no longer rode her bicycle was her fear of falling, not inability to ride it.

While Mrs. Treglown claimed special damages of over $300,000, the jury awarded her only $180,000.

The pretrial order entered in this case contained a proposed verdict form which provided three possible verdicts: for K-Mart; for Mrs. Treglown in the amount of_; and for Mr. Treglown in the amount of_. That form was given to the jury and the court charged them that they were to first consider Mrs. Treglown’s case and, only if they awarded her a verdict, were they to consider Mr. Treglown’s case.

Upon return of a verdict for Mrs. Treglown, counsel were advised that there was only a verdict for Mrs. Treglown. The court inquired of the jury: “you did not indicate a verdict with respect to Roman Numeral II [Mr. Treglown].” The jury forewoman stated “[t]hat’s correct. We didn’t.” The court then instructed the jury that there must be some verdict of some kind regarding Mr. Treglown and directed them to deliberate further.

Decided July 11, 2000

Reconsideration denied July 31, 2000

No objection to this procedure was voiced by plaintiffs, and no motion for directed verdict was made regarding liability on Mr. Treglown’s loss of consortium claim. Thereafter, a verdict was returned in favor of K-Mart on this claim.

Here, however, Mr. Treglown argues that there was no conflict in the evidence and he was entitled to a verdict as a matter of law, which would have been the standard for directing a verdict or judgment notwithstanding the verdict. OCGA § 9-11-50; Joiner v. Lane, 235 Ga. App. 121, 122 (1) (508 SE2d 203) (1998). Since Mr. Treglown passed up the opportunity to make such motions below and left the matter in the breast of the jury, all we consider here is whether there is any evidence to support the jury’s verdict. MARTA, supra.

Here, unlike in Groover v. Dickey, 173 Ga. App. 73 (325 SE2d 617) (1984) and Clark v. Wright, 137 Ga. App. 720 (224 SE2d 825) (1976) where the evidence was undisputed, there was conflicting evidence regarding whether Mrs. Treglown had suffered brain damage and whether some of her complaints, i.e., fatigue and lack of energy and interest in sex, were attributable to her physical injuries or her obsessive compulsive personality and depression. Also, in Clark, the husband had damages in the form of payment of the wife’s medical bills, not present here.

“This court does recognize the rule that a consortium action is derivative and when it is tried along with the primary action, a jury cannot render inconsistent verdicts.” Johnson v. Loggins, 211 Ga. App. 265, 266 (438 SE2d 711) (1993); Gurley v. Hinson, 194 Ga. App. 673, 675 (391 SE2d 483) (1990). “However, in view of the evidence produced at trial, we find that the verdicts rendered are not inconsistent.” Id.

Johnson v. Watson, 228 Ga. App. 351, 352 (2) (491 SE2d 827) (1997). See also Grogan v. Bennett, 208 Ga. App. 102, 103 (6) (430 SE2d 94) (1993).

There was no error in the trial court’s denial of Mr. Treglown’s motion for new trial.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

Cook & Connelly, Bobby Lee Cook, Smith, Price & Wright, Charles G. Price, for appellant.

Strawinski & Goldberg, James S. Strawinski, Nicole L. Wolfe, Dennis, Corry & Porter, George A. Koenig, for appellee.