text:
    A90A1519.
    DURDEN v. HILTON HEAD BANK & TRUST COMPANY, N.A.
    (401 SE2d 539)
   Beasley, Judge.

Appellant William E. Durden and appellee Hilton Head Bank & Trust Company, N.A. each hold a deed to secure debt conveying the same parcel of property from Nan Sun Nakagawa. After fire destroyed the improvements on the property, the insurer filed this interpleader action and paid the proceeds of the insurance policy into the registry of the court. This appeal results from the trial court’s grant of summary judgment to the bank finding that its deed to secure debt took priority over Durden’s deed.

Nakagawa and Durden approached attorney John Hunter after they agreed that Nakagawa would purchase the Lamp Post Lounge from Durden and asked Hunter to prepare a bill of sale, a promissory note and a deed to secure debt conveying Lot 58 of Greenbriar Subdivision from Nakagawa to Durden. Hunter did so. He was not asked to search the title on the property and did not do so. He did not make a file on this transaction. Upon execution of the documents, Durden took delivery and possession of the deed to secure debt. By its terms, the promissory note was due and payable in February 1986. The deed to secure debt was not recorded until May 16, 1987.

In early November 1986, Nakagawa contacted Hunter and asked if he could handle a closing for her. Subsequently, the bank retained Hunter to act as closing attorney in connection with a loan it was making to Nakagawa to be secured by the same property described in the Durden deed. Hunter did not remember that fact and due to the non-recording of the earlier deed he did not discover it during the title examination performed in connection with the loan closing for the bank. The deed to secure debt in favor of the bank was recorded on November 5, 1986.

The trial court recognized that Hunter was a dual agent of Nakagawa and of the bank. The trial court also recognized the principle set out in Bean v. Barron, 176 Ga. 285 (2) (168 SE 259) (1932): “The law imputes to the principal, and charges him with, all notice or knowledge relating to the subject-matter of the agency which the agency acquires or obtains while acting as such agent and within the scope of his authority, or which he may previously have acquired, and which he then had in mind, or which he had acquired so recently as to reasonably warrant the assumption that he still retained it. ...” (Citation and punctuation omitted.) Id. at 285.

The question is whether the bank had knowledge or notice, via what was in the mind of its agent, attorney Hunter, of the Durden deed to secure debt when it took a deed to secure debt on the same property. Bean v. Barron, supra. The question is not whether Hunter “should have remembered” that he had earlier prepared and transacted a deed on the same property. This is not a case of negligence, where duty standards of due care include what a person should have done or not done, but instead a case of knowledge or notice.

It is affirmatively shown, and not refuted by any contradictory evidence, that Hunter did not remember the first deed when he drew the second for another client some months later. He explained why there was nothing to jog his memory. In addition to the circumstances described above, he noted that the deed had simply been additional collateral in a non-real estate related transaction, he never had any further connection with that transaction, and no one ever returned the deed to him to record.

The mere fact tha.t only 11 months intervened between the two instances of legal services would not permit the jury to completely discard Hunter’s testimony as untruthful and replace it with an assumption that he did have the knowledge or notice about this particular piece of real estate in his mind. There is no conflict in the positive evidence on this point of fact, and there is nothing to even raise an inference of impeachment. To accept appellant’s argument would require ignoring the fundamental evidentiary principle, confirmed by the oath, that every witness is presumed to tell the truth. See Durham v. Holeman, 30 Ga. 619, 626 (6) (1860) and Suggested Pattern Jury Instructions, Vol. I: Civil, 2d ed., p. 15.

In both Fowler v. Latham, 201 Ga. 68 (38 SE2d 732) (1946) and Faircloth v. Taylor, 147 Ga. 787 (95 SE 689) (1918), the agents whose knowledge at a particular time was at issue were dead, so that the assumption would have filled the evidentiary gap if the circumstances warranted it. That would be up to the trier of fact. Here we do notháve such a void.

Durden could have protected his interest by recordation of his security deed but failed to do so and now relies instead on the subsequent memory of another’s agent. He cannot manufacture that memory from an assumption when all the evidence is to the contrary. Applying the rules of summary judgment, see Marsden v. Southeastern Sash &c. Co., 193 Ga. App. 597, 599 (2) (388 SE2d 730) (1989), we hold that the trial court was correct. Durden will have to suffer the consequences of the rule of law contained in OCGA § 44-2-1.

Judgment affirmed.

Carley, C. J., Birdsong, Sognier and Cooper, JJ., concur. Deen, P. J., McMurray, P. J., Banke, P. J., and Pope, J., dissent.

Pope, Judge,

dissenting.

I must respectfully dissent. Material factual issues remain and summary judgment is improper. The majority relies on the first part of the holding of Bean v. Barron, 176 Ga. 285 (2) (168 SE 259) (1932) which states that a principal is charged with knowledge previously acquired by his agent relating to the subject matter of his agency and which the agent then had in mind when acting for the principal, but the majority ignores the second, entirely separate part of the holding set out in Bean, that the principal also may be charged with knowledge of the agent even if the agent does not specifically remember, if the knowledge of the agent was “acquired so recently as to warrant the assumption that he still retained it. ...” Bean, supra at 285.

The majority accepts Hunter’s testimony that he does not remember drawing the first deed and ends the inquiry. Even accepting Hunter’s testimony as truthful, as I do, summary judgment is not appropriate because questions remain about whether Hunter should have remembered drawing the first deed.

“We are bound by the premise that in motions for summary judgment, the evidence must be construed most favorably toward the party opposing the grant of the same; and most unfavorably toward the party applying for the motion for summary judgment. All inferences and conclusions which arise from the evidence must be likewise construed. The cardinal rule of the summary procedure is that the court can neither resolve facts nor reconcile the issues but only look to ascertain if there is an issue. The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact and if the trial court is presented with a choice of inferences to be drawn from the facts, all inferences of fact from the proofs proffered on the motion for summary judgment must be drawn against the movant and in favor of the party opposing the motion.” (Citations and punctuation omitted.) Marsden v. Southeastern Sash &c. Co., 193 Ga. App. 597, 599 (2) (388 SE2d 730) (1989). It is for a jury to determine whether Hunter should have remembered after 11 months that he previously prepared a deed for the same property owned by Nakagawa.

I am not persuaded differently by Fowler v. Latham, 201 Ga. 68 (3) (38 SE2d 732) (1946). That case also involved an attorney who had drawn an earlier unrecorded deed. However, in Fowler, the time between the drawing of the first deed and the time the opposing party sought to have the attorney charged with that knowledge was 16 years. Fowler, supra at 75. A passage of 16 years certainly removes the assumption that the knowledge was acquired so recently so as to warrant the conclusion that the knowledge would still be retained. The same cannot be said for a period of only 11 months. Although a jury may determine that the outcome should be as it was decided by the trial court, nonetheless it is not for summary adjudication.

Decided December 5, 1990

Rehearing denied December 20, 1990

J. Alvin Leaphart, for appellant.

Brennan, Harris & Rominger, Richard J. Harris, for appellee.

I am authorized to state that Presiding Judge Deen, Presiding Judge McMurray, and Presiding Judge Banke join in this dissent.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A1525, A90A1526.
    BAXLEY VENEER & CLETE COMPANY et al. v. MADDOX; and vice versa.
    (401 SE2d 282)
   Cooper, Judge.

The dispute in this case arises out of an oral agreement entered into between appellee and Horace Corbett (“Corbett”), while Corbett was president of Corbett Plywood Corporation. The main appeal (Case No. A90A1525) is from the judgment entered on the jury verdict in favor of appellee. In the cross-appeal (Case No. A90A1526), appellee alleges an error in the court’s refusal to give one of his requested charges.

Appellee’s relationship with Corbett began as early as 1964 when Corbett purchased the mill at which appellee had been employed for approximately 17 years. Appellee continued working at the mill under Corbett’s employ until 1977, when Corbett sold the mill. Although the business relationship between appellee and Corbett ceased with the sale of the mill, the two maintained contact with each other, and in 1978, appellee had dinner with Corbett, during which Corbett stated that he was considering purchasing another mill and that he would make the purchase if appellee would come to work for him at that mill. Appellee, who was then 54 years old and working for a separate company, informed Corbett that he had a salary of $20,000, plus life insurance and a retirement plan, and that he was concerned about security for his future because of his advancing age. Appellee contends that Corbett offered him a job until he was 65 years old, which appellee accepted. Shortly thereafter, Corbett purchased the mill and appellee began employment as general manager of the mill. Corbett died in 1981, and appellee was fired approximately one month later. Appellee sued appellants, Corbett Plywood Corporation and Baxley Veneer & Cíete Company (a separate corporátion which appellee contends is a predecessor to the interest of Corbett Plywood Corporation), in a multi-count complaint, alleging breach of contract and several other wrongful acts; however, the only counts remaining after appellants’ motion for summary judgment were the breach of contract and wrongful termination counts. Prior to trial a stipulation was entered into by the parties whereby Baxley Veneer & Cíete Company agreed to be jointly and severally liable for any judgment entered against Corbett Plywood Corporation. The jury returned a verdict in favor of appellee, awarding damages and an amount for attorney fees.

Case No. A90A1525

1. Appellants contend in their first enumeration of error that the trial court erred in denying their motion for directed verdict on the ground that the contract was unenforceable under the Statute of Frauds. A witness who was present at the dinner meeting between Corbett and appellee testified that he heard Corbett tell appellee that if he came to work for him, appellee would have a job until he was 65. OCGA § 13-5-30 provides that any agreement which is not to be performed within a year must be in writing to be enforceable. Although there is some evidence that written notes were made reflecting the agreement, those notes were not produced during the trial, and it is undisputed that there is no other writing evidencing the agreement between Corbett and appellee. “The provisions of Code Section 13-5-30 do not [apply] . . . [w]here there has been such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance.” OCGA § 13-5-31. Appellants contend there was no part performance of the contract such as to remove it from the operation of the Statute of Frauds, and in the absence of a written contract, the contract was terminable at will. We find no error in the submission of the case to the jury. There was evidence that appellee worked as general manager of the mill for over two-and-a-half years and that the mill was purchased only after appellee agreed to manage it for Corbett. Whether those acts constituted part performance was a question of fact. Smith v. Cox, 247 Ga. 563, 565 (277 SE2d 512) (1981); Stolz v. Shulman, 191 Ga. App. 864 (6) (383 SE2d 559) (1989). Accordingly, we find no error with the denial of appellants’ motion for directed verdict.

2. Appellants also enumerate as error the trial court’s denial of a directed verdict on appellee’s claim for attorney fees and expenses of litigation. Although appellee made no prayer for expenses of litigation or attorney fees in his complaint, he did so in. a pretrial order filed with the court; however, neither appellants’ counsel nor the trial judge signed the pretrial order. The trial judge, after initially granting appellants’ motion for directed verdict on the. issue of attorney fees, subsequently changed his decision and decided to allow the jury to "hear evidence on that issue. “ ‘A pre-trial order should be liberally construed to allow the consideration of all questions fairly within the ambit of contested issues.’ ” Echols v. Bridges, 239 Ga. 25, 27 (235 SE2d 535) (1977). It appears from the transcript of appellants’ motion for directed verdict that appellants had notice of the claim for attorney fees through the pretrial order which appellee filed with the court and that the pretrial order was never signed due in part to a change in the judge assigned to the case. “Questions of bad faith, stubborn litigiousness, and expense, OCGA § 13-6-11, are generally questions for the jury.” Gorin v. FPA 2, P.C., 184 Ga. App. 239, 241 (361 SE2d 193) (1987). “ ‘Bad faith authorizing an award of attorney's) fees in a contract action must relate to the conduct of entering the contract or to the transaction and dealings out of which the cause of action arose, which includes not only the negotiations and formulation of the contract but also performance of the contractual provisions.’ [Cit.]” Beall v. F. H. H. Constr., 193 Ga. App. 544 (5) (388 SE2d 342) (1989). Given the short amount of time which elapsed between appellee’s firing and Corbett’s death, there was some evidence from which the jury could have found that appellants’ actions in terminating his employment contained an element of bad faith. Therefore, we find no error with the denial of appellants’ motion for directed verdict on appellee’s claim for attorney fees.

3. Appellants’ third enumeration of error is that the trial court erred in refusing to give their requested charges on part performance. Appellants requested the following charges on part performance: “I charge you that the part performance required to remove a multi-year oral employment contract from the application of the Statute of Frauds is not satisfied by either mere entry into employment, moving to a new location and taking on employment or refusal of another offer, for reasons that such acts are merely prepatory (sic) or preliminary to performance of a contract terminable at will of either party and that such acts are not substantial acts essential to an oral contract in that they do not verify the probable existence of the contract,” and “I further charge you that part performance required to remove a multi-year oral employment contract from the application of the Statute of Frauds is not satisfied by giving up other lucrative employment.” These requests were correct statements of the law as stated in Hudson v. Venture Indus., 243 Ga. 116, 118-119 (252 SE2d 606) (1979). See also Presto v. Scientific-Atlanta, 193 Ga. App. 606 (4) (388 SE2d 719) (1989); Gatins v. NCR Corp., 180 Ga. App. 595, 598 (349 SE2d 818) (1986). The trial judge charged the jury that an oral agreement which was not to be performed within one year was enforceable “where there has been performance on one side accepted by the other in accordance with the contract, or where there has been such part performance of the contract as would render it a fraud on the party refusing to comply if the court did not compel a performance,” and that “the part performance shown must be consistent with the presence of a contract and inconsistent with the lack of a contract.” Appellee contended throughout the trial that leaving the “security” of his former job, commencing employment with Corbett Plywood and working there without a vacation for approximately two- and-a-half years, constituted part performance sufficient to remove the oral contract from the operation of the Statute of Frauds. Thus, the charges at issue were adjusted to the facts and issues in the case. Inasmuch as the charges were relevant to the case, constituted correct statements of the law and were not covered elsewhere in the charge, we find error in the refusal to charge the jury as requested and reverse. See Burson v. Copeland, 160 Ga. App. 481 (1) (287 SE2d 386) (1981).

4. Appellants also enumerate as error the trial court’s charge to the jury that “acquiescence or silence, when the circumstances require an answer, a denial or other conduct may amount to an admission.” Appellee contended that appellants’ failure to respond to his application for unemployment benefits, which listed “unknown” as the reason for appellee’s termination, was an acknowledgment by appellants that appellee was not fired for cause. Appellants contend that the failure to respond to appellee’s application for unemployment benefits was not an admission that appellee had a contract which was to last until he reached the age of 65. “Substantively correct or not, ‘(a) charge which is not authorized by the evidence and which injects issues into the case which are not made by the pleadings or evidence is presumed to be harmful to the losing party.’ [Cit.]” Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860 (2) (389 SE2d 355) (1989). The requested charge was not relevant to the issues in the case, and we find error with the giving of the charge.

5. In their final enumeration of error, appellants contend that the trial court erred in allowing appellee to present character testimony. Appellee presented, over objection, two rebuttal witnesses who testified that he had a reputation for truthfulness and honesty. Appellee contends that the testimony was relevant because appellants raised an issue about his credibility by trying to prove that no offer of employment until he was 65 had been made. However, whether or not appellee was being truthful was irrelevant to the primary issue in the case, which was whether the contract was unenforceable under the Statute of Frauds. Appellee’s truthfulness not being a material issue in the case, the trial court should not have departed from the general rule which disallows character evidence in civil cases. See Housing Auth. of Atlanta v. Green, 169 Ga. App. 211 (3) (312 SE2d 196) (1983).

Decided November 21, 1990

Rehearing denied December 20, 1990

Newton, Smith, Durden & Kaufold, Wilson R. Smith, for appellants.

Law Offices of Barnard M. Portman, Paul H. Felser, for appellee.

Case No. A90A1526

6. Appellee/cross-appellant’s sole enumeration of error is that the trial court erred in refusing to charge the jury, in accordance with OCGA § 10-6-121, that “[contracts between employers and overseers may be by parol, though they may extend beyond a year from the time of the contract.” “ ‘A requested charge need be given only when it embraces a correct and complete principle of law and is pertinent and adjusted to the facts of the case.’ [Cit.]” (Emphasis in original.) Money v. Daniel, 188 Ga. App. 215 (1) (372 SE2d 305) (1988). There being no evidence in the record that appellee was hired as an “overseer” within the meaning of OCGA § 10-6-121; we find no error in the trial judge’s refusal to give the charge.

Judgment reversed in Case No. A90A1525. Judgment affirmed in Case No. A90A1526.

Banke, P. J., and Birdsong, J., concur.


author: Beasley, Judge. Deen, Presiding Judge,

text:
    A90A1559.
    THE STATE v. BROWN.
    (401 SE2d 295)
   Beasley, Judge.

The background of this case appears in Brown v. State, 191 Ga. App. 779 (383 SE2d 170) (1989), wherein this court reversed the denial of a motion to suppress cocaine found in defendant’s pants pocket.

When the case was put on the trial calendar after appeal, defendant filed a combination motion to dismiss, plea in bar, and motion to suppress the cocaine found on the floor. His grounds were that the indictment did not charge the floor cocaine and that if it did, evidence of it must be suppressed because it came to the officers’ attention only as a result of his illegal arrest. The trial court ruled that the decision in Brown, supra, necessitated dismissal of the indictment and barring of prosecution because defendant was illegally seized, detained, and arrested. The State appeals.

The hearing on the original motion to suppress shows that there was some confusion about what cocaine the State intended to include in the indicted charge and what cocaine defendant intended to include in his motion to suppress evidence. Defendant’s counsel indicated he thought defendant was only charged with the. cocaine found on his person. The State indicated it thought defendant sought to suppress evidence of the cocaine found near the chair, concerning which the State’s position was that he lacked standing to contest its seizure because he disowned it. For whatever reason, and it is not clear that defendant understood that the indictment embraced the cocaine on the floor, he agreed to proceed with the hearing confined to the cocaine seized from his person. However, he added: “And if that is suppressed from the evidence, I’m sure that the whole thing will be suppressed, because I think that we can prove that the stop — there was no probable cause to stop him to begin with.”

Thus he did challenge that floor cocaine evidence, and the trial court was correct when it, in effect, suppressed it. We have already decided that defendant had been unlawfully “seized” and was being unlawfully detained when the floor cocaine was discovered. Brown v. State, supra. The agent suspected that he might try to hide drugs away from his person and cautioned another agent to go back into the room where defendant was sitting and not to leave defendant alone. The cocaine was seen near defendant’s feet when the agent returned to the room.

Its seizure from plain view resulted from the unlawful arrest and cannot be extricated from it. Seeing the floor cocaine “was the product of the prior unauthorized seizure of . . . his person without probable cause,” in the words of our previous decision, Brown, supra at 781. It was “obtained thereby” so must be excluded. Radowick v. State, 145 Ga. App. 231, 242 (4) (244 SE2d 346) (1978). The evidence falls to what has again been recently articulated by the United States Supreme Court in New York v. Harris, 58 USLW 4457, 4458 (April 18, 1990), “the familiar proposition that the indirect fruits of an illegal search or arrest should be suppressed when they bear a significantly close relationship to the underlying illegality. See also Wong Sun v. United States, 371 U. S. 471 (1963).” Cf. State v. Lyons, 167 Ga. App. 747 (307 SE2d 285) (1983); Phillips v. State, 167 Ga. App. 260, 261 (305 SE2d 918) (1983).

When the officer saw the cocaine, he was not “entitled to be in such a vantage point,” Lyons, supra at 749; his vantage point was unlawful because it was unconstitutionally achieved by holding defendant in a place he did not choose to be. Since what the officers took from defendant’s person by searching it was tainted by the unlawful custody, it follows ineluctably that what they took from his immediate custodial presence was also tainted by the unlawfulness of that custody. See Florida v. Royer, 460 U. S. 491 (103 SC 1319, 75 LE2d 229) (1983); Johnson v. State, 111 Ga. App. 298, 309 (141 SE2d 574) (1965).

An unlawful arrest or seizure does not bar a criminal prosecution. Lackey v. State, 246 Ga. 331, 333 (2) (271 SE2d 478) (1980); Mortimer v. State, 177 Ga. App. 679, 680 (1) (340 SE2d 649) (1986); Thompson v. State, 175 Ga. App. 645, 648 (3) (334 SE2d 312) (1985). Neither does suppression of evidence. See, e.g., the concluding paragraph in Brown, supra at 781. The trial court was correct when it in effect granted the motion to suppress the evidence of the cocaine discovered on the floor. However, and recognizing that suppression here eliminates the State’s key evidence, the trial court erred when it went beyond suppression and actually barred prosecution and dismissed the indictment.

Judgment affirmed in part and reversed in part.

Carley, C. J., McMurray, P. J., Banke, P. J., Sognier, Pope and Cooper, JJ., concur. Deen, P. J., and Birdsong, J., dissent.

Deen, Presiding Judge,

dissenting.

I must respectfully dissent.

An unlawful arrest or seizure does not bar a criminal prosecution. Lackey v. State, 246 Ga. 331, 333 (271 SE2d 478) (1980); Mortimer v. State, 177 Ga. App. 679, 680 (340 SE2d 649) (1986); Thompson v. State, 175 Ga. App. 645, 648 (334 SE2d 312) (1985). The trial court therefore was not authorized to dismiss the indictment because of the defendant’s wrongful detention, seizure, and arrest at the airport.

Appellee argues that his motion to dismiss was properly granted because he was being prosecuted for something new, in that the indictment in question did not pertain to the cocaine found near the chair where he was sitting when he was detained at the airport. I must disagree. There was only one indictment, and it charged him with possession of cocaine. It did not specify that he was being charged only with possession of the cocaine found on his person as opposed to the cocaine found on the chair near where he was seated. Both quantities of cocaine were seized at the same time, and he was charged with possession of both packages. The cocaine found on his person was ordered suppressed by this court in Brown v. State, 191 Ga. App. 779 (383 SE2d 170) (1989). That case specifically points out that appellant stipulated at the suppression hearing that he was not contesting the admissibility of the cocaine found near his chair. As the defendant did not contest the admissibility of this evidence and the indictment merely charged him with possession, rather than a specific type of possession, he can be tried on this charge.

Decided December 5, 1990

Rehearing denied December 20, 1990

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellant.

Joseph A. Maccione, for appellee.

Accordingly, the judgment of the trial court should be reversed.

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

       The State can appeal from both suppression of evidence and dismissal of indictment. OCGA § 5-7-1 (1) and (4).


author: Banke, Presiding Judge. Deen, Presiding Judge, Birdsong, Judge,

text:
    A90A1600.
    SALTER v. THE STATE.
    (401 SE2d 541)
   Banke, Presiding Judge.

The appellant was convicted of possession of cocaine with intent to distribute based on evidence that a quantity of crack cocaine had been found underneath the back- seat of an automobile he was driving. His threshold contention on appeal is that the contraband should have been suppressed as the fruit of an unlawful search or seizure.

Although no transcript of the motion to suppress hearing has been included in the record on appeal, the parties appear to be in agreement that, insofar as the circumstances surrounding the search are concerned, the evidence introduced at trial was identical to the evidence introduced at that hearing. The trial transcript reveals that the circumstances surrounding the search were as follows: Acting in response to information received three days previously from “a concerned citizen” to the effect “there was a [red, 1970 model] Volkswagen coming through down [Hardin Allen Road] selling crack cocaine,” the county sheriff and a deputy drove to the location in question, parked on a side road and waited there hoping to “catch the car.” At around midnight or 1:00 a.m., a vehicle which sounded to the sheriff like “an old model Volkswagen” came down the road, stopped about a hundred yards from their position and turned off its lights. The officers immediately proceeded toward this vehicle and, as they were doing so, observed another vehicle pull up behind it. Upon reaching the vehicles, the officers turned on their blue lights, and the second vehicle immediately backed up and sped away. The sheriff testified that “[t]he Volkswagen, he wanted to back out, too, but we cut him off.”

The officers were able to ascertain at this time that the remaining vehicle was in fact a red Volkswagen and that it was occupied by three persons — the appellant, who was driving, a male passenger seated beside him in the front, and a female passenger seated in the back. The three were immediately removed from the car and searched. Although no weapons or contraband were found on any of them, the appellant and the male passenger were taken into custody, while the female passenger was permitted to leave.

After determining that the Volkswagen belonged to the appellant, the officers asked him to consent to a search of the vehicle, but he refused. The vehicle was then towed to the courthouse, where it was subjected to an “inventory” search, during which two objects described as “homemade pipes” were discovered in a “glove box” on the driver’s door. The back seat was then removed from the vehicle, and a “penny matchbox” containing eight pieces of crack cocaine weighing a total of 0.9 grams was discovered on the floor beneath it. Both the male passenger and the female passenger, testifying for the state, denied any knowledge of the contraband. Held:

1. “Whether the search is sought to be justified as incident to the appellant’s arrest for possession of cocaine or whether it is sought to be justified by exigent circumstances, it cannot be upheld unless probable cause existed for a belief that the appellant was currently in unlawful possession of cocaine. Under the standard set forth by the United States Supreme Court in Illinois v. Gates, [462] U. S. [213] (103 SC 2317, 76 LE2d 527) (1983), probable cause may be predicated on an informant’s tip only if, under the ‘totality of the circumstances,’ including the ‘veracity’ and ‘basis of knowledge’ of the informant, there is a ‘fair probability’ that contraband or evidence of a crime will be found in a particular place. Id. at 4716.” Felker v. State, 172 Ga. App. 492, 494 (323 SE2d 817) (1984).

There is no suggestion in this case that the informant revealed to the sheriff the source of his information, nor was the information he provided sufficiently detailed to suggest that it was based on anything more substantial than mere rumor. See generally Clark v. State, 189 Ga. App. 124, 125 (375 SE2d 230) (1988). While the tip, combined with the observed presence of the red Volkswagen on the roadway ah 1:00 a.m., its attempted clandestine rendezvous with another vehicle, and the flight of the latter vehicle from the scene, certainly gave rise to an articulable suspicion of criminal wrongdoing sufficient to support an investigatory detention, cf. Chumbley v. State, 180 Ga. App. 603 (349 SE2d 823) (1986), we do not believe the facts known to the officers after completing their search of the appellant and the other occupants of the Volkswagen were sufficient under the circumstances to establish probable cause for the appellant’s arrest for unlawful possession of drugs. Accordingly, we are constrained to hold that the “inventory search” of the vehicle was not authorized and that the trial court erred in denying the appellant’s motion to suppress. Compare State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984); Clark v. State, supra; Cichetti v. State, 181 Ga. App. 272 (1) (351 SE2d 707) (1986); Mines v. State, 167 Ga. App. 766 (1) (307 SE2d 291) (1983).

2. The foregoing holding renders it unnecessary for us to address the appellant’s remaining enumerations of error.

Judgment reversed.

Sognier, Pope, Beasley and Cooper, JJ., concur. Carley, C. J., concurs in judgment only. Deen, P. J., McMurray, P. J., and Birdsong, J., dissent.

Deen, Presiding Judge,

dissenting.

I dissent for some of the reasons stated in Division 2 of the dissent written by Judge Birdsong. I believe that under the “totality of the circumstances” test in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), the police had probable cause to support warrantless searches of the appellant’s person and the car. After the search of appellant’s person produced nothing, there still existed an independent probable cause to search the car. The police could have searched the car at the scene, but instead elected to take the car to the police station to search it under more favorable conditions, where they found the cocaine. Regardless of whether it was lawful to arrest appellant at the scene before the cocaine was found, I see no circumstances to indicate that the arrest tainted the subsequent search, or had any effect on the probable cause that continued to exist for the search of the car. The characterization of the search as an inventory taken pursuant to the arrest is not controlling. I agree that for constitutional purposes there was no difference between conducting the search of the car pursuant to probable cause at the scene or at the police station, although arguably the police could have sought a warrant for the search of the car once the decision was made to search it at the station. See Chambers v. Maroney, 399 U. S. 42 (90 SC 1975, 26 LE2d 419) (1970).

The seizure of the contraband, which provided support for appellant’s arrest and conviction, was lawful. For these reasons and those stated in Division 3 of Judge Birdsong’s dissent, I would affirm the conviction.

Birdsong, Judge,

dissenting.

For reasons hereinafter addressed, I would affirm appellant’s conviction of the offense of possession with intent to distribute cocaine.

1. The record does not contain a transcript of the suppression hearing, and appellant is not filing as an indigent, pro se appellant. The trial court’s motion on its face reflects that in finding the existence of exigent circumstances justifying a warrantless search, the court considered the evidence adduced at the evidentiary hearing of July 13, 1989. It is well established that, in the absence of a transcript of the suppression hearing, we must assume as a matter of law that the evidence adduced at the hearing supported the findings of the court. Brown v. State, 190 Ga. App. 324, 326 (2) (378 SE2d 908); Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428); compare Brannon v. State, 176 Ga. App. 781 (5) (337 SE2d 782). This precedent in my opinion is controlling and alone warrants the affirmation of the trial court’s ruling denying the motion to suppress.

The majority, however, asserts that “[although no transcript of the motion to suppress hearing has been included in the record on appeal, the parties appear to be in agreement that, insofar as the circumstances surrounding the search are concerned, the evidence introduced at trial was identical to the evidence introduced at that hearing.” Review of the entire record and the appellate brief of the parties reveals no express concession whatsoever by the State to this effect. Nor do I believe that mere silence on the part of the State, regarding the absence of a suppression motion hearing transcript, can result in the creation either of a stipulation or of an admission in judicio that the evidence introduced at trial was in fact identical to that introduced at the suppression motion hearing. Neither should the State’s silence prevent this court from exercising its right to base its judgment on affirmative evidence of record, particularly as we have long recognized the existence of “a presumption in favor of the regularity and legality of all proceedings in the superior court.” (Emphasis supplied.) Nalley v. State, 147 Ga. App. 634, 635 (249 SE2d 685). Accordingly, I find the majority’s position inadequate to warrant departure from the precedent of Brown and Santone, supra.

2. Assuming arguendo the State by silence bound this court to accept the evidence at trial as being identical with that introduced at the suppression hearing, I nonetheless remain convinced the trial court did not err in denying the motion to suppress for the following reasons totally independent of Division 1, above.

The record reveals that the police first received information from a “concerned citizen” to the effect that a red Volkswagen was coming through Hardin Allen Road selling crack cocaine. Under the “totality of the circumstances” analysis of Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527), “while an informant’s veracity, reliability, and basis of knowledge are highly relevant in determining the value of his report, these elements are not entirely separate and independent requirements to be rigidly exacted in every case. Rather, they should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is probable cause to believe that contraband or evidence is located in a particular place.” (Punctuation omitted.) Cichetti v. State, 181 Ga. App. 272 (1) (351 SE2d 707), citing Illinois u. Gates, supra at 462. Moreover, it is not disputed that in this case the information was received from a “concerned citizen” rather than a “confidential informant.” This factor is significant, as concerned citizens normally report their information in the performance of their civic duties rather than in hopes of obtaining monetary or judicial benefit or reward. Thus, as a general rule, the information given by “concerned citizens” is vested with a higher degree of initial credibility than that given by “confidential informants,” as “ ‘[t]his court has always given the concerned citizen informer a preferred status insofar as testing the credibility of his information.’ ” Cichetti v. State, supra at 273. The police, exercising their professional knowledge and experience, obviously considered the information obtained from this particular “concerned citizen” sufficiently credible to warrant investigation, and after talking with a county commissioner who lived in the area, they put the area under surveillance. The police did not catch the car that night. However, three days later between the relatively late hours of midnight and 1:00 a.m., the police observed a car, which was identified from its sound as being an old Volkswagen, parking on the darkened road and turning off its lights. A second car immediately pulled up behind the Volkswagen. In my opinion, at this time, the observations of the police adequately corroborated the information supplied by the “concerned citizen” sufficiently to enable them to reasonably make a favorable evaluation, based on their police experience, regarding the reliability of the concerned citizen and the validity of his report. Assuming arguendo, however, that probable cause for arrest was still momentarily lacking, the observations of the police, coupled with the adequately corroborated report of the “concerned citizen” would at a minimum provide an articulable suspicion justifying an investigative stop of the vehicles involved. Jones v. State, 195 Ga. App. 868, 869 (2) (395 SE2d 69); compare Alabama v. White, 496 U. S._(110 SC 2412, 110 LE2d 301).

As the police approached to make the investigative stop, they turned on their blue, strobe light, which should have given both parked cars reasonable notice that it was the police approaching. The second car immediately pulled out and fled the scene. The old Volkswagen, now readily identifiable as red in color, also attempted to flee the scene but was physically prevented from doing so by the police.

Flight in connection with other circumstances can provide probable cause for a subsequent warrantless arrest and search. State v. Reid, 247 Ga. 445, 447 (276 SE2d 617); Jones v. State, supra at 869 (2); Travis v. State, 192 Ga. App. 695, 696 (385 SE2d 779). In this instance, evidence of flight was highly relevant, as the circumstances of flight, coupled with the totality of the other attendant circumstances, would substantially corroborate the information provided by the “concerned citizen.” Compare Massachusetts v. Upton, 466 U. S. 727, 730-731 (104 SC 2085, 80 LE2d 721). That is, the evidence of the attempted flight of appellant would, in view of the information provided by the “concerned citizen,” the appearance of the vehicle within a few days of the “concerned citizen’s” report, the identity of appellant’s vehicle as an old, red Volkswagen, the location and time of the incident, the parking of appellant’s vehicle on the dirt road, the immediate shutting off of the lights of appellant’s vehicle, the immediate arrival of and parking behind appellant’s vehicle by another vehicle, and the immediate fleeing of the unidentified vehicle when the police turned on their strobe light, combine effectively, under a totality of the circumstances analysis, to provide probable cause for the warrantless arrest of the occupants of appellant’s vehicle and the warrantless search for illegal drugs. Here the “concerned citizen’s” information and the surrounding facts subsequently observed by the police possessed an internal coherence that gave weight to the whole; while no single piece of evidence is per se conclusive, the pieces fit neatly together and so viewed, as in Massachusetts v. Upton, supra at 733-734, support the determination of the police on the scene that there was probable cause to believe contraband or evidence of a crime would be found during a search of the vehicle and its occupants. Further, the degree of evidence needed to combine, under the totality of the circumstances, with the initial information provided to the police to result in probable cause is of a lesser degree when the initial information comes from a “concerned citizen” rather than from an “informant” because, as above indicated, the information given by the former is initially vested with a preferred status in regard to the testing of its credibility. Cichetti, supra. Accordingly, at the moment the police arrested the occupants of appellant’s vehicle at the scene, they had probable cause both to effect warrantless arrests of the occupants and to search the vehicle itself.

After lawfully preventing appellant’s vehicle from fleeing, the occupants were seized and placed in a state of arrest; they were not then free to leave the scene and the attendant circumstances were not such as to cause a reasonable person in the suspect’s position to believe the detention would be temporary. See generally Ward v. State, 193 Ga. App. 137, 138 (1) (387 SE2d 150); Scretchen v. State, 192 Ga. App. 436, 437 (1) (385 SE2d 115). Following the search of the vehicle occupants pursuant to their lawful arrest, which revealed no contraband or other incriminating evidence, the female was released and permitted to leave. The warrantless arrest of the occupants was lawful as, if probable cause to arrest exists at the time of detention and the person detained is outside the home, the law does not require a warrant. Singleton v. State, 195 Ga. App. 119, 121 (393 SE2d 6). Thus, there exists in this case no illegal arrest or illegal search of the vehicle occupants which would taint the subsequent conduct of the police.

Further, as the police had probable cause to believe that drugs were being sold from the vehicle, and as no drugs were found during a search of the occupants, the police could reasonably infer that the drugs must be somewhere within the vehicle itself. However, when the police requested appellant, the operator/owner of the vehicle, to consent to a search thereof he refused. Accordingly, the police elected to keep appellant and the other male occupant under arrest and to take them and the automobile to the sheriff’s office. As the police elected to keep appellant in a lawful state of arrest, they became, responsible for timely safeguarding his car until it could lawfully be disposed of in the ordinary course of police business. Jones v. State, 187 Ga. App. 421, 424 (370 SE2d 784). In this regard, the trial transcript contains no evidence that the released female occupant could drive or that appellant wanted her to take custody of his car, and it may reasonably be inferred that the car could have been stolen or damaged if left parked “on a dirt road,” unattended in the middle of the night. Thus, the police’s conduct in seizing the car and transporting it without undue delay directly to the sheriff’s office was reasonable within the meaning of the Fourth Amendment. See Jones, supra at 424.

It is important to note that at the moment when the police elected to transport the car to the sheriff’s office, they had appellant and his male companion under arrest and they also independently had probable cause to believe that drugs were in the car. Thus, the police could have conducted a limited search of the passenger compartment of the vehicle, by means of a search conducted pursuant to a lawful arrest, or they could have conducted a much broader search of the vehicle based on the existence of probable cause that the vehicle was carrying drugs. See generally Daniel, Ga. Criminal Trial Practice, Search & Seizure, §§ 4-43—4-48. However, having arrested appellant and having gained “lawful possession” of the car, the police also could elect to seize the vehicle, transport it to the sheriff’s department, and there make a “good-faith inventory of its contents.” Jones, supra at 423. Of course, “an inventory of the contents may not be used as a pretext for an investigatory police search.” See generally Daniel, supra at § 4-51.

Although the trial transcript is somewhat inconsistent as to whether the police tacitly elected to seize the vehicle and initially conduct a lawful inventory or whether they merely seized it in order to transport it to the sheriff’s office where the conditions were more favorable to conduct a warrantless search of the vehicle based on probable cause, it is our duty on appeal to construe the facts to support the verdict. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). The sheriff testified that the car was searched after it was taken to his office area. His deputy testified that an inventory of the car was begun. It appears most likely that the car was subjected to a warrant-less search based on probable cause. In either circumstance, however, I believe that the conduct of the police was not unreasonable within the meaning of the Constitutions of the United States and Georgia.

Assuming that the police elected to take the vehicle to the sheriff’s office in order to obtain more favorable conditions for conducting a warrantless search, I believe that under the attendant conditions such conduct would not have been unreasonable within the meaning of the Fourth Amendment of the United States Constitution. The police had probable cause to believe the car contained drugs, as above discussed; the vehicle was towed to the sheriff’s office without delay; and it was subjected to search immediately after the police “got it in.” Considering the initial location of the operable vehicle on a dirt road, the time of night of the incident, and the fact that drugs can be hidden in secret compartments and other small spaces, the police were faced with an unexpected exigency and did not act unreasonably in electing to take the vehicle to a location where they would have a better opportunity to find any concealed contraband therein. Moreover, the trial transcript reflects that the vehicle was towed to the station without unreasonable delay; and, the record is silent whether the sheriff’s office was equipped with an impounding lot or whether sufficient personnel were on duty late that night to keep perpetual guard on the vehicle until such uncertain time when a warrant could be obtained. Following the suppression motion hearing, the trial court denied appellant’s suppression motion and found the following supporting facts: “exigent circumstances existed so as to justify warrant-less search and further that said exigen[cy] was not diminished by relocating the vehicle to area more suitable for the search.” I am satisfied, based on the posture of the trial transcript and record, these findings of fact are not clearly erroneous. An appellate court is bound to accept the trial court’s decision on questions of fact and credibility of witnesses regarding issues raised during the determination of a suppression motion unless clearly erroneous. Santone v. State, supra at 790. Whether exigent circumstances exist in a given situation which will preclude the police from obtaining a warrant is a question of fact to be determined by the trial court, and the trial judge’s decision will be sustained if supported by any evidence. Butler v. State, 185 Ga. App. 478, 480 (2) (364 SE2d 612). The record in this case provides some evidence in support of the trial court’s findings, and I would not reverse this ruling. Butler, supra; compare McKinney v. State, 184 Ga. App. 607, 610 (2) (362 SE2d 65) (to the extent prior opinions of this court require “exigent circumstances” to justify a warrantless search for contraband where police have probable cause to believe there is contraband inside an automobile which has been stopped on the road, they are overruled). Accordingly, I am satisfied that the police conducted a lawful warrantless search of the vehicle based on probable cause.

Assuming that the police elected initially to proceed with an inventory, no different result obtains. During such an inventory, “on the driver’s side, in a little old pocket on the door,” cocaine-related paraphernalia was found. It may be concluded from a totality of the existing circumstances, particularly including the finding of drug paraphernalia inside the car during its routine inventory, that the police now had lawful possession of physical evidence, which provided reasonable grounds to believe that cocaine remained undetected inside the car following their inventory. At this point the police would be faced with a dilemma, having apparently completed the scope of a routine inventory, unless they now commenced an immediate warrantless search of the vehicle, the undetected drugs might be subsequently stolen from the vehicle or would be hidden or destroyed as soon as the vehicle was released to the owner or his lawful representative. Thus at this point, the police would still be faced with an exigency as factually found by the trial judge and could, in the absence of initial subterfuge in electing to conduct an inventory, terminate their inventory and proceed with a lawful warrantless search of the vehicle based on probable cause, which in this instance was both preexisting and continuing.

Thus, I am satisfied that although these facts perhaps reflect a certain confusion on the part of the police, regarding the proper method for proceeding in the face of an unanticipated exigency, that under the totality of the circumstances their conduct was reasonable within the meaning of the Fourth Amendment. Accordingly, I believe the trial court did not err in denying the suppression motion.

3. The evidence of record establishes that drug paraphernalia was found on the driver’s side door compartment in the automobile owned and operated by appellant, and that the matchbox of cocaine was found in the back seat of the car. Although the female passenger had been sitting near the location where the cocaine was found, she testified that the matchbox did not belong to her. Likewise, the male passenger also testified that the matchbox was not his. The matchbox contained approximately eight pieces of crack cocaine.

On appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. Grant, supra. While mere possession of cocaine is not standing alone sufficient to show an intent to distribute, in the absence of a lack of evidence of intent as a matter of law, the question of intent is a question for the jury. See Dorsey v. State, 187 Ga. App. 725, 726-727 (371 SE2d 207).

The evidence reveals that eight pieces of cocaine of unspecified size of a net weight of 0.9 grams were found in a matchbox in the back seat of the car and two homemade pipes were found in the door pocket on the driver’s side. No testimony was offered by law enforcement experts regarding the method in which crack cocaine was processed for sale, the usual sizes of crack being offered for sale, or any evidence that the amount of cocaine found in the matchbox was an amount usually found on those who sell the drug rather than those who merely possess it for personal use. Accordingly, this case is distinguishable from Robinson v. State, 194 Ga. App. 432 (1) (390 SE2d 652) where expert law enforcement evidence regarding drug packaging and distribution techniques was introduced. Nevertheless, there exists ample evidence from which the jury could infer that appellant had the requisite criminal intent. The evidence shows that on a dirt road in the dark of night, appellant stopped his car and shut off his lights; thereafter, another vehicle stopped directly behind him and fled the scene as soon as the police turned on their strobe light. The jury could find from these facts that the unidentified car had not stopped for a lawful purpose, but had made a pre-arranged stop to obtain some of the drugs found in appellant’s car, and accordingly appellant had the requisite criminal intent to distribute the drugs as averred in the indictment.

Thus, in my opinion, review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which he was charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Therefore, I respectfully dissent as, in my opinion, the finding of guilty of the offense of possession of cocaine with intent to distribute should be affirmed.

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

On Motion for Rehearing.

On motion for rehearing, the state argues, for the first time, that in the absence of a transcript of the motion to suppress hearing it must be presumed that the evidence introduced at that hearing supported the trial court’s denial of the motion. The state made no such contention in its original brief but, like the appellant, instead based its statement of facts and its argument on the search and seizure issue entirely on the testimony contained in the trial transcript. We accordingly concluded that the parties had submitted the search issue to us for a decision based on the evidence contained in the trial transcript.

The state now complains that we were not authorized to draw such a conclusion in the absence of an express stipulation by it “agreeing that the transcript of the trial accurately recounts the evidence submitted at the hearing on the . . . motion to suppress.” However, the state has not, to this date, suggested that any relevant evidence concerning the search was in fact presented at the hearing which was not also presented at trial. Nor has it made any effort to explain why, if it considered the absence of a hearing transcript dis-positive of the search issue, it did not say so in its original brief rather than basing its argument entirely on the testimony appearing in the trial transcript. Under the circumstances, we have no reason to believe that the state would ever have complained of the absence of the hearing transcript had not this court both raised the issue sua sponte in its original opinion and divided over its significance, nor do we have any reason to doubt the correctness of our original conclusion that the state intended to submit the search issue to us for a decision based on the trial transcript.

Decided December 5, 1990

Rehearing denied December 20, 1990.

Michael L. Bankston, for appellant.

J. Brown Moseley, District Attorney, Donald E. Henderson, Assistant District Attorney, for appellee.

Motion for rehearing denied.


author: Deen, Presiding Judge. Pope, Judge,

text:
    A90A1991.
    MAYFIELD v. THE STATE.
    (401 SE2d 297)
   Deen, Presiding Judge.

Defendant was arrested on December 23, 1989, on warrants charging him with selling crack cocaine to an undercover agent on two separate occasions on the same day. He appeals from the trial court’s pre-trial order setting bail, and contends that the amount of bail set was excessive.

Defendant filed a petition for bond pursuant to OCGA § 17-6-1, which was heard and denied on March 8, 1990. On May 29, 1990, defendant filed a second petition to set bail, as authorized by OCGA § 17-7-50, which requires the trial court to set bail upon the application of any person who is confined for more than 90 days without bail and without an indictment having been returned. See Burke v. State, 234 Ga. 512, 517 (216 SE2d 812) (1975). Following a hearing the trial court entered an order on June 7, 1990, setting bail in the total amount of $100,000 ($50,000 on each warrant), from which this appeal was taken. Held:

Excessive bail is prohibited by the Georgia Constitution (Ga. Const. 1983, Art. I, Sec. I, Par. XVII), and the Eighth Amendment to the United States Constitution. “Bail set at a figure higher than an amount reasonably calculated to . . . [insure the presence of the defendant] is ‘excessive’ under the Eighth Amendment.” Stack v. Boyle, 342 U. S. 1, 5 (72 SC 1, 96 LE 3) (1951); Jones v. Grimes, 219 Ga. 585, 587 (134 SE2d 790) (1964). “The amount of bail to be assessed in each criminal case is generally within the sound discretion of the trial judge, whose decision will not be reversed on appeal absent a clear abuse of that discretion. [Cits.] When fixing the amount of bail, the judge is to consider chiefly the probability that the accused, if freed, will appear at trial; other factors to be considered include the accused’s ability to pay, the seriousness of the. offense, and the accused’s character and reputation. [Cit.] ” Spence v. State, 252 Ga. 338, 341 (313 SE2d 475) (1984).

The record reflects that the trial judge was apprised of the defendant’s lengthy residency in the community and his financial status, and weighed these factors against the serious nature and potential consequences of the charges. In considering these circumstances, the amount of bail set reflects the trial judge’s concern that the defendant’s presence at trial be secured. We find no clear abuse of discretion.

Judgment affirmed.

Carley, C. J., McMurray, P. J., Banke, P. J., Birdsong and Sognier, JJ., concur. Pope, Beasley and Cooper, JJ., dissent.

Pope, Judge,

dissenting.

I dissent because in my opinion the bail set by the trial court was excessive, as prohibited by both our state and federal constitutions. Moreover, because the defendant in this case was entitled to have bail set as a.matter of statutory right, the granting of excessive bail here was, in effect, a denial of that right.

The majority concludes that the amount of bail assessed reflects the trial court’s concern that the defendant be present at trial. However, the state presented no evidence which would justify the trial court in concluding that the amount of bail set was necessary for that purpose. At the hearing on defendant’s first petition for bond, held before the same trial judge, defendant testified he was a resident of the county, that he had lived all his life there, that he would appear for trial and would assist his attorney in preparing his defense. At the second hearing, defendant’s court-appointed attorney requested that bail be set in a reasonable amount, informed the court that defendant had no savings, that there was no risk of defendant fleeing and that “a high bond would do [nothing] more to ensure his presence than a $5000 to $10,000 bond.” The State offered no evidence concerning the factors enumerated above, but merely requested that the bond be adequate to ensure defendant’s appearance at trial and that the court consider the seriousness of the offenses in determining the amount to be assessed. Although the offenses (selling crack cocaine) were serious, the amount involved in each sale was obviously small, based on the amount paid for the drugs by the undercover agents ($20 on each occasion).

Decided December 5, 1990

Rehearing denied December 20, 1990.

Hemmann & Hemmann, Paul E. Hemmann, for appellant.

Tommy K. Floyd, District Attorney, for appellee.

“There are no hard and fast rules for determining what is reasonable bail and what is excessive bail. The question must be determined according to the circumstances of each case. ‘The gist of the problem confronting a court in setting the amount of bail is to place the amount high enough to reasonably assure the presence of the defendant when it is required, and at the same time to avoid a figure higher than that reasonably calculated to fulfill this purpose, and therefore excessive.’ [Cit.]” (Indention omitted.) Jones v. Grimes, 219 Ga. 585, 587 (2) (134 SE2d 790) (1964).

Considering all the circumstances in this case, however, and ever mindful of the discretion of the trial court in cases of this type, I conclude that the bail set was clearly excessive, and therefore would remand this case to the trial court to allow it to fix bail in an amount reasonably required to assure defendant’s presence at trial.

I am authorized to state that Judge Beasley and Judge Cooper join in this dissent.


author: Banke, Presiding Judge.

text:
    A90A2313.
    CARVER v. THE STATE.
    (401 SE2d 300)
   Banke, Presiding Judge.

On appeal from his conviction of speeding, the appellant contends that the state should not have been permitted to introduce evidence concerning the use of a radar device to check his speed, due to the arresting officer’s asserted failure to comply with the following italicized portion of OCGA § 40-14-5 (b): “Each county, municipal, or campus law enforcement officer using a radar device shall notify each person against whom the officer intends to make a case based on the use of the device that the person has a right to request the officer to test the device for accuracy. The notice shall be given prior to the time a citation and complaint or ticket is issued against the person and, if requested to make a test, the officer shall test the device for accuracy. . . .” (Emphasis supplied.)

The case was tried before a judge without a jury. The arresting officer testified that while he did in fact test the radar unit for accuracy in response to the appellant’s request, he did not allow the appellant to observe the performance of the tests; and it is on the basis of his failure to do so that the appellant contends OCGA § 40-14-5 (b) was violated. However, the officer also testified that when he informed the appellant that the radar had clocked his speed at 55 miles per hour, the appellant responded by stating that “he was doing 50 or 51 but wasn’t doing what I clocked him at.” As the appellant did not testify at trial, this testimony was unrefuted. The officer further testified that the speed limit at the location in question was 35 miles per hour. Held:

Decided December 5, 1990

Rehearing denied December 20, 1990.

William H. Carver, pro se.

Lydia S. Jackson, Solicitor, for appellee.

In view of the appellant’s admission that he was “doing 50 or 51,” any error the trial judge may have committed in considering the results of the radar check must be considered harmless. Accord Harris v. State, 172 Ga. App. 66 (2) (321 SE2d 803) (1984).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


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

text:
    A90A1373.
    DUNCAN WHOLESALE, INC. v. PALMER et al.
    (401 SE2d 291)
   Carley, Chief Judge.

The relevant facts in this in rem action to foreclose a material-man’s lien are as follows: Appellee-defendants Ernest and Gale Palmer entered into an agreement with a contractor for the construction of a house on their property. Appellant-plaintiff furnished the contractor with materials. On May 3, 1988, appellant filed a material-man’s lien on appellees’ property, alleging that the last date of delivery of materials to the contractor had been on March 11, 1988. Although appellant filed suit on open account against the contractor on January 16, 1989, he did not, in connection therewith, ever file any notice of his action as contemplated by OCGA § 44-14-361.1 (a) (3). Before any judgment could be obtained by appellant, however, the contractor filed for bankruptcy and appellant thereafter filed the instant lien foreclosure action on March 9, 1989. Appellees moved to dismiss because appellant had failed to file the notice of his previous abortive action against the contractor. The trial court granted appellees’ motion to dismiss “due to [appellant’s] failure to timely comply with the notice requirements of [OCGA §] 44-14-361.1 (a) (3).” Appellant appeals from this order of dismissal.

OCGA § 44-14-361.1 (a) (4) provides, in relevant part, as follows: “]I]f, after the filing of an action [against the contractor or subcontractor], no final judgment can be obtained against him . . . because of his . . . adjudication in bankruptcy, then . . . the person or persons furnishing material, services, labor, and supplies shall be relieved of the necessity of filing an action or obtaining judgment against the contractor or subcontractor as a prerequisite to enforcing a lien against the property improved by the contractor or subcontractor. . . . [T]he person or persons furnishing material, services, labor, and supplies may enforce the lien directly against the property so improved in an action against the owner thereof, if filed within 12 months from the time the lien becomes due. . . .” Within 12 months from the time that appellant’s lien became due, the contractor was adjudged bankrupt and this in rem action was filed against appellees. Compare Galbreath v. Vondenkamp, 197 Ga. App. 284 (398 SE2d 278) (1990). Thus, it is clear that, if appellant’s suit against the contractor had never been filed, this action would constitute a timely and viable means of foreclosing the lien against the real property pursuant to OCGA § 44-14-361.1 (a) (4). Accordingly, the issue to be decided is whether the mere fact that the abortive suit against the contractor was filed without the concomitant required notice under OCGA § 44-14-361.1 (a) (3) extinguishes irrevocably a claim of lien which the statute otherwise specifically provides can be enforced in the very manner that appellant has utilized.

Even though this precise issue may not have been presented under the facts of Hancor, Inc. v. Fleming Farms, 155 Ga. App. 579, 580-581 (271 SE2d 712) (1980), this court nevertheless specifically recognized therein that “notice of the filing of a suit against the contractor would not be mandatory . . . where],] after the filing of suit[,] no final judgment can be obtained by reason of his . . . adjudication of bankruptcy. . .” (Emphasis supplied.) See also Statham Machinery &c. Co. v. Howard Constr. Co., 160 Ga. App. 466, 468 (287 SE2d 249) (1981). The instant case does present just such a factual situation and we hold that, under the circumstances here involved, notice of the filing of appellant’s suit against the contractor would not be mandatory. Although OCGA § 44-14-361.1 (a) does provide that an effective and enforceable lien must be created and declared in accordance with its provisions, the instant lien was created and declared in full accordance with OCGA § 44-14-361.1 (a) (4) and its effectiveness and enforceability are not, therefore, lost for lack of compliance with the inapplicable provisions of OCGA § 44-14-361.1 (a) (3). See Noland Co. v. Ford Motor Co., 258 Ga. 469 (369 SE2d 910) (1988). It follows that the trial court erred in granting appellees’ motion to dismiss.

D & T Glass v. Barrow Enterprises, 172 Ga. App. 797 (325 SE2d 170) (1984) and American Hosp. &c. Corp. v. Starline Mfg. Corp., 171 Ga. App. 790, 791 (1) (320 SE2d 857) (1984) are not inconsistent with this holding because they are clearly distinguishable. Neither case involved the bankruptcy of the contractor occurring before a judgment against him could be obtained and both cases were, therefore, decided under the applicable provisions of OCGA § 44-14-361.1 (a) (3) rather than the inapplicable provisions of OCGA § 44-14-361.1 (a) (4). The instant case does involve the bankruptcy of a contractor occurring before a judgment against him could be obtained and it is, therefore, controlled by the applicable provisions of OCGA § 44-14-361.1 (a) (4) rather than the inapplicable provisions of OCGA § 44-14-361.1 (a) (3).

Judgment reversed.

Deen, P. J., Banke, P. J., Birdsong, Sognier, Pope, Beasley and Cooper, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

As my view of the appropriate resolution of the case sub judice differs from that of the majority, I respectfully dissent.

OCGA § 44-14-361.1 (a) provides in part that: “To make good the liens specified in paragraphs (1) through (8) of subsection (a) of Code Section 44-14-361, they must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective or enforceable: ... (3) The commencement of an action for the recovery of the amount of his claim within 12 months from the time the same shall become due. In addition, at the time of filing such action, the party claiming the lien shall file a notice with the clerk of the superior court of the county wherein the subject lien was filed . . .” (Emphasis supplied.) Thus, when plaintiff filed the action against Joe Jones, but failed to file, within a reasonable time, the notice of action required by OCGA § 44-14-361.1 (a) (3), the claim of lien was extinguished and rendered, unenforceable. D & T Glass v. Barrow Enterprises, 172 Ga. App. 797 (325 SE2d 170); American Hosp. &c. v. Starline Mfg. Corp., 171 Ga. App. 790, 791-792 (1) (320 SE2d 857).

Jones subsequently filed for bankruptcy. Under OCGA § 44-14-361.1 (a) (4), this had the effect of relieving plaintiff of the necessity of filing an action or obtaining judgment against Jones as a prerequisite to enforcing a lien against the property. However, the necessity of filing an action should be distinguished from the requirement that, at the time of filing the action, a notice be filed with the clerk of the superior court of the county wherein the subject lien was filed.

There is no suggestion in any statutory language that a contractor’s bankruptcy filing would relieve a lienholder, who has in fact filed an action against a contractor under OCGA § 44-14-361.1 (a) (3), of its duty to also file the required notice in order to avoid extinguishment of the lien. In my view, such a suggestion appears only in Hancor, Inc. v. Fleming Farms, 155 Ga. App. 579 (271 SE2d 712), and is expressly identified as dicta, and is unsupported by any citation of authority. Consequently, the position stated in Hancor should not be adopted in the case sub judice since it is inconsistent with the general rule that failure to comply with the notice requirement of OCGA § 44-14-361.1 (a) (3) results in extinguishment of the lien. There is no statutory provision for the revival of a materialman’s lien once extinguished.

Decided December 3, 1990

Rehearing denied December 20, 1990

Greene & Greene, Barry B. Greene, for appellant.

W. Morgan Akin, for appellees.

Consequently, I would affirm the trial court.


text:
    A90A0900.
    A90A0901.
    NATIONAL SERVICES INDUSTRIES, INC. v. GREAT GLOBAL ASSURANCE COMPANY et al. HUTCHISON et al. v. GREAT GLOBAL ASSURANCE COMPANY et al.
    (401 SE2d 286)
   Banke, Presiding Judge.

Welber and Marilyn Hutchison filed the present action against Philip Banks, Steven Banks, and National Services Industries, Inc., d/b/a North Brothers Insulation (NSI), seeking to recover for personal injuries allegedly sustained by Mr. Hutchison when an automobile he was driving was involved in a collision with an NSI vehicle being driven by Steven Banks. The Hutchisons’ automobile insurance carriers, Transamerica Insurance Company and Great Global Assurance Company, were served with copies of the complaint in their capacity as providers of uninsured motorist coverage, and each filed defensive pleadings in its own name. A previous appeal by the Hutchisons and a cross-appeal by NSI were dismissed on jurisdictional grounds in Hutchison v. Nat. Svcs. Indus., 191 Ga. App. 885 (383 SE2d 212) (1989).

Upon the return of the case to the trial court, Transamerica Insurance Company and Great Global Assurance Company moved for summary judgment to determine the nature and extent of their obligations under the uninsured motorist coverage provisions of the Hutchisons’ policies, while NSI, having previously been awarded summary judgment on each of the various other theories upon which the Hutchisons sought to hold it liable for the accident, such as respondeat superior and negligent entrustment, moved for summary judgment on the issue of whether it could be considered liable for Steven Banks’ alleged negligence based on its status as self-insurer of the truck he had been driving. Treating these motions as requests for declaratory relief, the trial court ruled that NSI would be obligated under its plan of self-insurance to pay the full amount of any judgment entered against Banks and that the Hutchisons’ insurance carriers consequently had no potential liability under the uninsured motorist provisions of the policies in question. The case is before us on separate appeals by NSI and the Hutchisons from that ruling. In its appeal, NSI additionally enumerates as error the previous denial of its request for partial summary judgment on the issue of whether it was properly subject to suit in the present action in its capacity as a self-insurer.

It is apparent without dispute that Steven Banks was an employee of NSI at all times relevant to this action and that on the day of the accident he had received express permission to use the truck from his supervisor, Philip Banks, who was also his brother. However, it is also undisputed that the scope of this permission extended only to transporting NSI workers to and from a job site and that the accident occurred as he was returning from an unauthorized personal mission. The trial court’s earlier grant of summary judgment to NSI with respect to its liability based on such theories as respondeat superior and negligent entrustment is not challenged in this appeal. Held:

1. We first address NSI’s contention that it was not subject to suit in the present action in its capacity as a self-insurer. As a general rule “[a]n insurer may not be joined as a party defendant with the insured and sued directly, [cits.], unless a judgment has previously been obtained against the insured which is unsatisfied or liability has been otherwise fixed, [cits.], or unless a provision in the policy permits it, [cits.], or unless specifically permitted by statute as in the case of common carriers and contract motor carriers, [cits.]. . . .” Seaboard Coast Line R. Co. v. Freight Delivery Svc., 133 Ga. App. 92, 95 (3) (210 SE2d 42) (1974). The Georgia Supreme Court has declared that “a plan and certificate of self-insurance serves as the substantial equivalent of an insurance ‘policy’ for the purposes of OCGA § 33-7-11, as well [as OCGA § 33-34-12 (2)].” Twyman v. Robinson, 255 Ga. 711, 712 (342 SE2d 313) (1986). Applying the general rule that an injured party cannot bring a direct action against an alleged tortfeasor’s liability insurer unless and until he has obtained a judgment against the tortfeasor, we hold that once the Hutchisons’ other claims against NSI were eliminated from-the case, there no longer existed any basis upon which it could be named as a defendant in the present action, with the result that the trial court erred in not dismissing it from the case.

2. NSI contends that it cannot be required to indemnify the Hutchisons for Steven Banks’ alleged negligence in its capacity as self-insurer of the vehicle he was driving because the evidence of record establishes without dispute that at the time the collision occurred, Banks was in violation of his supervisor’s express instructions to him not to use the vehicle for any purpose other than to transport workers to and from the job site. The Hutchisons’ uninsured motorist coverage carriers, on the other hand, argue that, with the advent of compulsory liability insurance, the “first instance permission” rule rejected by this court in Ditmyer v. Amer. Liberty Ins. Co., 117 Ga. App. 512 (3) (160 SE2d 844) (1968), became the law of this state, with the result that Steven Banks qualified as a permissive user of the vehicle within the contemplation of OCGA § 33-34-2 (5) so long as he had lawful possession of it, whether or not he was in violation of the instructions given to him governing its use. But see Select Ins. Co. v. Register, 192 Ga. App. 145, 147 (384 SE2d 238) (1989) (holding that an employee operating a company vehicle for an expressly forbidden purpose would not be considered an insured under the company’s motor vehicle liability insurance policy “even if the first instance permission rule was adopted”). However, under the procedural posture of the present case, we hold that the trial court lacked jurisdiction to address this issue.

Generally speaking, where an uninsured motorist insurance carrier files defensive pleadings in its own name in response to an action by its insured to recover for injuries allegedly caused by an uninsured motorist, it secures the right to seek an adjudication against its insured on coverage issues as well as to defend the claim against the uninsured motorist. See Tennessee Farmers Mut. Ins. Co. v. Wheeler, 170 Ga. App. 380, 381 (317 SE2d 269) (1984); Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 170 (268 SE2d 676) (1980). Cf. Knight v. Ga. Farm &c. Ins. Co., 184 Ga. App. 312 (3) (361 SE2d 190) (1987). However, it is one thing to permit an uninsured motorist insurance carrier to seek declaratory relief against its own insured in such an action and another thing to permit it to seek declaratory relief involving a non-party to the action, against which it has filed no cross-claim or other pleadings seeking such relief.

We have previously held, in Division 1 of this opinion, that the Hutchisons were not authorized to sue NSI in its capacity as self-insurer of the vehicle Steven Banks was driving without first having obtained a judgment against Banks. Yet, the denial of coverage by the uninsured motorist insurance carriers was itself predicated on NSI’s alleged liability to the Hutchisons in its capacity as a self-insurer. Clearly, an uninsured motorist insurance carrier does not acquire the right to obtain a declaratory judgment against another insurer which is not properly before the court as a party to the litigation merely by virtue of having filed defensive pleadings in its own name. Under the circumstances, we conclude that in order to obtain a binding judicial declaration of non-coverage based on a determination that Steven Banks was insured under NSI’s certificate of self-insurance and was therefore not an uninsured motorist, the uninsured motorist carriers were required to file a separate declaratory judgment action in which NSI could be named as a defendant along with the Hutchisons. Accordingly, we hold that the trial court erred in granting declaratory relief to Transamerica Insurance Company and to Great Global Assurance Company on the issue of their liability for uninsured motorist benefits.

Decided November 21, 1990

Rehearings denied December 17, 1990 and December 28, 1990

McLain & Merritt, Albert J. Decusati, for National Services.

Bennett, Williams & Henry, Michael T. Bennett, for Hutchison.

Long, Weinberg, Ansley & Wheeler, James S. Strawinski, Yvette M. Chapman, Steven D. Barnhart, for Great Global.

3. NSI’s remaining enumeration of error is rendered moot by the foregoing.

Judgment reversed.

Birdsong and Cooper, JJ., concur.


author: Pope, Judge.

text:
    A90A1028, A90A1471.
    JACKSON v. THE STATE (two cases).
    (401 SE2d 289)
   Pope, Judge.

In Case No. A90A1028, appellant Frank Jackson, Jr., appeals his convictions for vehicular homicide and driving without insurance. In Case No. A90A1471, Jackson appeals the trial court’s order of restitution resulting from his convictions.

1. Jackson argues that the evidence was insufficient to support his conviction for vehicular homicide. On Christmas Day 1988, Tamiko Howard and her five-year-old son Cieric Howard were passengers in a car driven by George Ransom. They were traveling east in the left lane of Memorial Drive. As they approached the intersection of Memorial Drive and Delano, Ransom noticed that a car coming from the opposite direction on Memorial was stopped in the intersection waiting to make a left turn onto Delano.

Chrystal Blanks was waiting on the sidewalk on Memorial Drive for a bus. She saw the car at the intersection waiting for traffic to clear to make a left turn. She also saw the car driven by Jackson pull up behind the car waiting to turn. She saw Jackson look both ways. Even though no cars were in the lane to Jackson’s right, he suddenly crossed the double yellow line and pulled around to the left of the car waiting to make a left turn. Blanks then saw Jackson’s car crash into the car driven by Ransom. The force of the collision caused Ransom’s car to flip several times. Cieric Howard was ejected from the car and died as a result of the blunt trauma he received in the crash. George Ransom’s left arm was severely injured. The evidence was sufficient to support Jackson’s conviction for vehicular homicide under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Jackson argues that the trial court erred in denying his motion to suppress the results of immunoassay tests performed on his blood. In the indictment, Jackson also was charged with DUI and causing serious injury by vehicle. The jury acquitted Jackson of these charges. (We note that at the time applicable to this case, the offense of causing serious injury by vehicle was predicated solely upon a violation of OCGA § 40-6-391, the DUI statute; in 1989, too late to be applicable here, the legislature amended the statute to add the predicate of reckless driving pursuant to OCGA § 40-6-390.) On appeal, Jackson argues that his acquittal on the DUI charges did not render admission of the results of the immunoassay tests harmless because they showed a positive result for marijuana use and were prejudicial to his defense on the charge of vehicular homicide.

Jackson argues on appeal, as he did at trial, that the results of the tests should not have been admitted because neither test is reliable absent a confirmation by another method of testing, most often gas chromatography/mass spectrometry. Dr. Horton McCurdy, a research toxicologist employed by the GBI, was qualified as an expert in the field of forensic toxicology and testified for the State. Dr. Mc-Curdy directly refuted the contention of unreliability advanced by the expert for Jackson, Dr. James Woodford. Further, Dr. McCurdy testified that the tests were done in accordance with procedures approved by the state crime laboratory as specified by OCGA § 40-6-392 (a) (1). We hold that the trial court ruled correctly that the tests were admissible and that Jackson’s objection went instead to the weight of the evidence. See Sanders v. State, 176 Ga. App. 869 (1) (338 SE2d 5) (1985). The fact that Jackson was acquitted on all counts dependent upon a finding that he was under the influence of alcohol or drugs shows that the able and extensive cross-examination of Dr. McCurdy by counsel for Jackson and the evidence adduced from his own expert sufficiently persuaded the jury of the unreliability of the evidence.

3. Photographs of the deceased child taken before autopsy showing the injuries that resulted in the child’s death were admissible to illustrate the testimony of the medical examiner. See Brown v. State, 250 Ga. 862 (5) (302 SE2d 347) (1983).

4. Jackson argues that the court should have given his requested charge on lesser included offenses. However, any objections to the charge were waived when counsel for Jackson stated to the trial court, “We have no objection, Your Honor.” See Cooper v. State, 188 Ga. App. 297 (2) (372 SE2d 679) (1988).

5. Jackson challenges the propriety of that portion of the trial court’s order of restitution requiring him to make restitution to George Ransom, the driver of the car. The amount of restitution was stipulated and is not in dispute. The issue presented is whether Jackson must make restitution to Ransom, who was injured as a direct result of the collision, but who was not the direct victim of the crime, vehicular homicide, for which Jackson was convicted. We hold that under the facts of this case, the trial court had the power'to order restitution.

OCGA § 17-14-1 provides: “It is declared to be the policy of this state that restitution to their victims by those found guilty of crimes is a primary concern of the criminal justice system.” In an action for restitution, OCGA § 17-14-2 (2) defines “damages” as “all damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced . . . .” OCGA § 17-14-2 (9) defines “victim” as “any natural person . . . suffering damages caused by an offender’s unlawful act.”

Jackson was convicted of the crime of vehicular homicide by reason of reckless driving. The same act for which Jackson was sentenced for vehicular homicide caused serious injury to Ransom’s arm, rendering it virtually useless in spite of ten operations on the arm to repair such injury. Applying the definitions set out in the statutes, we find that Ransom undoubtedly suffered damages as a result of Jackson’s act of reckless driving that resulted in the death of Cieric Howard. Therefore, restitution to Ransom in this case is proper.

Reckless driving is an essential element of the crime of vehicular homicide in the first degree for which Jackson was convicted and sentenced. See OCGA § 40-6-393 (a). The reckless driving caused the collision that not only killed Cieric Howard but also grievously injured Ransom. This fact distinguishes this case from Robinson v. State, 169 Ga. App. 763 (315 SE2d 277) (1984) (trial court erred in ordering restitution to victim where act of theft against that victim was not charged and there was no evidence of it), and Bottoms v. State, 194 Ga. App. 862 (392 SE2d 59) (1990) (trial court erred in ordering restitution to victims of burglaries of all stolen items found in defendant’s possession whereas defendant was charged with theft by receiving only some of those items and financial transaction card theft; restitution authorized only to extent “damages” of the victims from act of theft by receiving or financial transaction card theft could be shown). Damage to Ransom as a result of the act for which Jackson was tried, convicted and sentenced was proved at trial. Therefore, the trial court did not err in ordering Jackson to pay restitution to Ransom.

Decided November 29, 1990

Rehearing denied December 28, 1990

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, J. Michael McDaniel, Assistant District Attorneys, for appellee.

Judgments affirmed.

Deen, P. J., and Beasley, J., concur.


author: Carley, Chief Judge.

text:
    A90A1849.
    JONES v. THE STATE.
    (401 SE2d 299)
   Carley, Chief Judge.

After a jury trial, appellant was found guilty of the sale of cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

Appellant’s sole contention on appeal is that the trial court erred in permitting counsel for the State to engage in allegedly improper closing argument. This contention necessitates an examination of “each portion of the allegedly objectionable argument in the context of the facts and the issues created by those facts.” Cooper v. State, 178 Ga. App. 709, 711 (3) (345 SE2d 606) (1986).

The first objection was to a reference to the clothing worn by the undercover agent. Appellant contended that there was no evidence to authorize argument based upon the agent’s clothing. The record clearly shows, however, that such evidence was adduced. Thus, there was no error in overruling this objection. See Marshall v. State, 193 Ga. App. 314, 315 (3) (387 SE2d 602) (1989).

Counsel for the State subsequently intimated that the agent had to dress in a certain type of clothing because he could not otherwise make drug transactions. Appellant again objected based upon a lack of evidence to support such argument. It is true “that counsel cannot be permitted in argument to state facts which are not in the record. But it is an entirely different matter to draw deductions from the evidence or, where illustrative of an issue, the lack of it. The fact that a deduction may be illogical, unreasonable or even absurd, is a matter for reply by adverse counsel and not rebuke by the court. [Cit.]” Cooper v. State, supra at 711-12 (3). From the evidence, it was not impermissible for counsel for the State to draw the inference that the agent’s clothing was a factor in the success of his undercover investigations.

Decided December 5, 1990

Rehearing denied December 31, 1990.

Jerry M. Daniel, for appellant.

Richard A. Malone, District Attorney, W. Steven Askew, Assistant District Attorney, for appellee.

In another instance, appellant objected that counsel for the State was trying to inflame the minds of the jury. However, the record clearly reflects that the “comments constituted a fair response to the argument of the appellant’s counsel.” Taylor v. State, 183 Ga. App. 314, 316 (8) (358 SE2d 845) (1987). Accordingly, appellant’s objection to the argument itself was without merit. However, in responding to appellant’s objection, counsel for the State stated that he was trying to “prejudice” the jury in favor of the State’s case and against appellant and this prompted a motion for mistrial. We do not encourage the use of the word “prejudice” in a discussion of the objective of a closing argument. Nevertheless we recognize that counsel for the State is entitled to emphasize the evidence which will authorize a conviction and to attempt to discredit the exculpatory evidence upon which the defendant relies. Taylor v. State, supra at 316 (8); Spivey v. State, 253 Ga. 187, 189 (3a) (319 SE2d 420) (1984). Indeed, as the trial court subsequently noted, regardless of how counsel for the State may choose to characterize his role, he is first and foremost an advocate who is attempting to persuade the jury to return a guilty verdict rather than an acquittal. Moreover, the comment was made in reply to appellant’s objection that counsel for the State was attempting to inflame the jury. “If counsel argue objections in the presence of the jury, they cannot complain when the opposite party responds with appropriate counter argument.” Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251) (1990). There was no reversible error.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


author: McMurray, Presiding Judge.

text:
    A90A2281.
    TRANSPORT INDEMNITY COMPANY et al. v. HARTFORD INSURANCE COMPANY.
    (401 SE2d 294)
   McMurray, Presiding Judge.

This is the second appearance of the case sub judice before this Court. See Hartford Ins. Co. v. Henderson & Son, 186 Ga. App. 592 (367 SE2d 859), aff’d 258 Ga. 493 (371 SE2d 401). Upon the remand of the case to the state court, fourth-party defendant Hartford Insuranee Company moved for summary judgment. Lee Way Motor Freight, Inc., and Transport Indemnity Company, third-party defendants and fourth-party plaintiffs (appellants), appeal the grant of summary judgment in favor of Hartford Insurance Company. Held:

The notice of appeal directs that: “Inasmuch as the record is already in the Court of Appeals, the clerk will omit all except the following, which will be transmitted.

“1. Hartford’s Motion for Summary Judgment filed October 19, 1988.

“2. The response to Hartford’s Motion filed by Transport Indemnity Company and Lee Way Motor Freight, Inc. on November 18, 1988.

“3. The order granting Hartford’s Motion for Summary Judgment filed June 5, 1990.”

The clerk of the state court complied with the designation of record contained in the appellants’ notice of appeal. Thus, the record, upon which our consideration of the present appeal must be made, consists of the record from the earlier appeal plus the subsequent items designated by appellants.

Upon reading the state court’s order granting Hartford Insurance Company’s motion for summary judgment, it is apparent that additional evidence was added to the record upon the remand of the case to the state court, including at least the endorsement to the insurance policy, BMC Form 32, which although not part of the record on the previous appeal was argued before the Supreme Court. Hartford Ins. Co. v. Henderson & Son, 258 Ga. 493, 495, supra. However, the record designated by appellants does not include any evidence added to the record following remand to the state court after the earlier appeal. In this regard, we note that the factual assertions contained in the parties’ briefs to the state court are not evidence. Butterworth v. Pettitt, 223 Ga. 355, 357 (155 SE2d 20).

It is well established that the burden is on the party alleging error to show it affirmatively by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, the appellate court must assume that the judgment below was correct and affirm. Brown v. Frachiseur, 247 Ga. 463 (277 SE2d 16); Taylor v. Colwell Mtg. Corp., 187 Ga. App. 397 (370 SE2d 520); Acker v. Jenkins, 178 Ga. App. 393 (1) (343 SE2d 160). As appellants have omitted from the record some portion of the evidence upon which the state court relied, we must affirm.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.

Decided December 4, 1990

Rehearing denied December 31, 1990

Saveli & Williams, Edward L. Saveli, for appellants.

Drew, Eckl & Farnham, John P. Reale, L. Lee Bennett, Jr., John W. Sherrod, for appellee.


text:
    A90A1398.
    WRIGHT v. RHODES.
    (401 SE2d 35)
   Pope, Judge.

Appellant Dennis Dale Wright seeks to appeal the trial court’s order domesticating a Colorado judgment. The record shows that the order was entered on October 30, 1989. On November 30, 1989, Wright filed a “Motion to Set Aside Order on Plaintiff’s Petition and Motion For New Trial.” The trial court denied these motions in an order entered on February 1, 1990. Wright filed his notice of appeal on February 6, 1990. Held:

Even if we assume that the November 30 motion filed by Wright was a motion for new trial and not merely a motion for reconsideration, it is clear that we have no jurisdiction in this case. To confer jurisdiction of an appeal on this court, a notice of appeal must be filed within 30 days of an appealable judgment, unless an extension is granted. OCGA §§ 5-6-38 (a); 5-6-39. A motion for new trial will extend the time for filing a notice of appeal. OCGA § 5-6-38 (a); Hughes v. Newell, 152 Ga. App. 618 (1) (263 SE2d 505) (1979). To be effective, a motion for new trial must be filed within 30 days of the entry of the judgment when the case is tried without a jury. OCGA § 5-5-40 (a). An untimely motion for new trial is void and does not operate to toll the time for filing of the notice of appeal. Johnson v. State, 227 Ga. 219 (180 SE2d 94) (1971). Wright’s motion to set aside and motion for new trial were filed on November 30, 31 days after the trial court’s order was entered on October 30. No other extension of time for filing a notice of appeal appears in the record. Therefore, the February 6, 1990, notice of appeal was untimely regarding the motion for new trial. Nor is the appeal from the denial of the motion to set aside effective; such an appeal must be made by application. OCGA § 5-6-35 (a) (8). The direct appeal filed does not confer jurisdiction on this court. The appeal must be dismissed for lack of jurisdiction.

Decided November 29, 1990

Rehearings denied December 18, 1990 and January 2, 1991.

Carole M. Wright, for appellant.

Chandelle T. Summer, for appellee.

Appeal dismissed.

Deen, P. J., and Beasley, J., concur.